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FCC To Investigate Cell Phone Unlocking Ban 65

Posted by Soulskill
from the more-the-merrier dept.
Edgewood_Dirk writes "In response to the recent White House petition, the FCC will be investigating the viability and possible harm of the ban on cell-phone unlocking. Gregory Ferenstein met with FCC Chairman Julius Genachowski at a TechCrunch CrunchGov event Wednesday, where the Chairman said the 'ban raises competition concerns; it raises innovation concerns.'" This line from the end of the article fails to inspire confidence: "Genachowski isn’t sure what authority he has, but if he finds any, given the tone of the conversation, it’s likely he will exert his influence to reverse the decision."
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FCC To Investigate Cell Phone Unlocking Ban

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  • by zlives (2009072) on Friday March 01, 2013 @07:28PM (#43050525)

    ""Genachowski isn’t sure what authority he has"" I refer him to http://www.fcc.gov/what-we-do [fcc.gov] and specifically to

    " Promoting competition, innovation, and investment in broadband services and facilities;
            Supporting the nation’s economy by ensuring an appropriate competitive framework for the unfolding of the communications revolution;
            Encouraging the highest and best use of spectrum domestically and internationally;
            Revising media regulations so that new technologies flourish alongside diversity and localism;
            Providing leadership in strengthening the defense of the nation’s communications infrastructure."

    • by Anonymous Coward on Friday March 01, 2013 @07:31PM (#43050557)

      also if they have no authority and can't get anything done, get lost and give me my tax dollars back.

      • by Anonymous Coward

        also if they have no authority and can't get anything done, get lost and give me my tax dollars back.

        Ah no, sorry. That is the one authority they do seem to have...taking your tax dollars while granting you to do...well, nothing about it.

    • by geekoid (135745) <dadinportland&yahoo,com> on Friday March 01, 2013 @07:31PM (#43050561) Homepage Journal

      None of which indicates what legal recourse he can take in the instance.
      That's what he is talking about.

      • by zlives (2009072)

        you are completely correct. however,
        like AC already wrote, if they can't do shit, they can gtfo
        and give taxpayers the $350million dollars back.

        • like AC already wrote, if they can't do shit, they can gtfo
          and give taxpayers the $350million dollars back.

          No, actually, while it may not be clear whether or not the FCC has the authority to regulate cell phone locking/unlocking, its pretty clear that the FCC doesn't have the authority to decide to disband or to redistribute appropriate funds to individual taxpayers.

          For either changing the jurisdiction of the FCC, or abolishing it and doing something else with the funds, you need action by either a majority

      • by icebike (68054) on Friday March 01, 2013 @08:12PM (#43050897)

        None of which indicates what legal recourse he can take in the instance.
        That's what he is talking about.

        Well they seem to rewrite FCC regulations at will when they want to swap frequencies or ban certain devices. Usually with no change in the law.

        Why are they investigating the effects of "ban on cell-phone unlocking." Why aren't they investigating a BAN on Celphone Locking? Several other countries have such a ban. Why do we allow such locking anyway? The carriers have your credit card, they have a contract, why do they need a lock on on your phone?

        • Because a customer with mandatory adware and spyware on their phone is more valuable than one without.

          • by Shavano (2541114)

            Because a customer with mandatory adware and spyware on their phone is more valuable than one without.

            You're confusing locking with rooting.

            • by hairyfeet (841228)

              I think he is talking about how all the carriers sell phones loaded with crapware and if it was simple to get rid of, like say "push this button to load cyanogen mod"? Most would do so.

              But I think this ultimate goes to a deeper problem with cellphones in the USA, and that our system is set up all distorted. From what I've been told the rest of the world simply buys their phones and then chooses their carrier and plan, no different than how you buy any PC and then choose the ISP in your area that offers the

        • Why are they investigating the effects of "ban on cell-phone unlocking." Why aren't they investigating a BAN on Celphone Locking?

          Because a "ban on cellphone locking" is what we have, so its what it is necessary to examine the effects of.

          A ban on cellphone locking would be a potential remedy, if the results of the investigation were that cellphone locking had effects so bad that it needed to be prohibited as a practice.

          • by icebike (68054)

            Because a "ban on cellphone locking" is what we have, so its what it is necessary to examine the effects of.

            Ok, I took a different english course than you.

            We have a ban on cellphone unlocking since the librarian of congress terminated the exception to the DMCA. It is now illegal to unlock your phone. Unlocking your phone is banned.

            There is no ban on locking your phone. Almost every carrier does it.

    • Genachowski isn’t sure what authority he has"" I refer him to http://www.fcc.gov/what-we-do [fcc.gov] [fcc.gov] and specifically to

      The scope of legal authority of a regulatory agency is not, surprising as it might seen, "everything that might plausibly fit within the description the agency provides of its general function on its website."

      Whether or not an agency has the legal authority to take action on a specific question which it has not previously addressed is something that the head of the agency might want

      • by bbelt16ag (744938)
        can't the FCC go to obama and ask him to do something? or the congres?? why sit there and pee in their pants on this? if they are so inept and weak on the subject of protecting consumers the perz and congress should whipe the floor with them and disband them like grand parents said. If they are looking for funds they need look no further then the FCC, rip it out of their ass and roll royces..
        • by Attila Dimedici (1036002) on Friday March 01, 2013 @09:05PM (#43051233)
          If Congress has never passed a law which grants the FCC the authority to regulate whether or not a cell-phone provider can ban users from unlocking cell-phones, than the FCC has no authority to intervene. It very well may be that the FCC would need to go to Congress to request such authority. Of course in that case one would hope that Congress would consult the Constitution to see whether or not they had the authority to grant the FCC such authority (I also know that Congress would not do so). I am not commenting either way on whether or not the FCC or Congress has such authority.
          • by Belial6 (794905)
            I'm thinking they just need to only authorize unlocked phones to use the frequencies that the phones use. This way they are not mandating the phones be unlocked. The carriers can sell all the locked phones they want. The FCC will simply stick to their authority of deciding what devices are authorized to use the radio spectrum.
        • can't the FCC go to obama and ask him to do something? or the congres??

          Well, it would be pretty dumb to ask the President and/or Congress to change the FCC's existing authority with regard to this issue that they have not previously concerned themselves with without first ascertaining what their existing authority is and whether or not it is sufficient for any action they feel it is necessary to take.

          why sit there and pee in their pants on this?

          The head of the FCC stating at the beginning of getting an ass

    • by Shavano (2541114)

      ""Genachowski isn’t sure what authority he has"" I refer him to http://www.fcc.gov/what-we-do [fcc.gov] and specifically to

      " Promoting competition, innovation, and investment in broadband services and facilities; Supporting the nation’s economy by ensuring an appropriate competitive framework for the unfolding of the communications revolution; Encouraging the highest and best use of spectrum domestically and internationally; Revising media regulations so that new technologies flourish alongside diversity and localism; Providing leadership in strengthening the defense of the nation’s communications infrastructure."

      Let me highlight that for you.

    • the way you gain authority, remember, it to use it. a court or a mob may signal if you overreach. but since all radio wave communications is regulated by the FCC, as well as commercial broadcast, and considering that the operation of cell phone systems is licensed in the public interest, convenience, and necessity, ol' Frank Charlie Charlie can do whatever they want, up to and including seizing equipment, levelling a fine every time carrier comes on, and jailing people found in violation of regulations.

  • by AlphaWolf_HK (692722) on Friday March 01, 2013 @07:30PM (#43050545)

    The FCC has done a lot of similar things, say for example mandating that cable companies can't sell boxes that don't include a cablecard, or requiring all cable companies to permit self install of cablecards.

    What would stop them from outright forbidding cell phone locking?

    • by DragonWriter (970822) on Friday March 01, 2013 @07:43PM (#43050671)

      What would stop them from outright forbidding cell phone locking?

      Regulatory agencies are empowered by specific positive grants of power. The appropriate question is "what would allow them to...", not "what would stop them from..."

      • by AK Marc (707885)
        They were empowered to regulate to promote competition, and did so in a substantially similar circumstance before. If they do not have the power to ban cell phone locking, then they shouldn't have had the power to ban the cable card locking. Besides, they *do* explicitly have the power, as they set the rules for use of the frequencies, and usually have "best interest" clauses in there. An announcement that "any phone sold by a carrier locked to their network is a violation of their terms of use of those
    • What would stop them from outright forbidding cell phone locking?

      Money

      • LOL... the cause of and answer to all of life's and the government's problems...

        They already likely took money from these carriers and the lobbying groups to fuck up the legal state of phone unlocking... what's a bit more gonna hurt?

      • Well there's a lot of money in cableco only leased cable boxes. Seriously, those damn things are expensive to lease, and the cable lobby is pretty strong too.

  • FCC will be investigating the viability and possible harm of the ban on cell-phone unlocking.

    Possible harm to customers or to the mobile providers?

    There is very little to investigate -- if I don't explicitly seek out an "unlocked" phone, even the phone that isn't subsidized may be locked by the providers. Why isn't that strictly illegal already?

    • by Anonymous Coward

      Why isn't that strictly illegal already?

      I agree the law prohibiting it should not exist, but it is not the disaster many make it sound like. Both are available. If you don't want a locked phone, buy an unlocked one! I have no intention of ever buying a locked phone, but thankfully almost every model I've looked at including the latest, most modern phones, are available unlocked. Unless that situation changes, and I really doubt it will, this doesn't seem like a huge problem.

      If people buy locked down shit, and you get what they deserve.

      • by mark-t (151149)

        If people buy locked down shit, and you get what they deserve.

        You are, like the people who figured that it was acceptable to lift the dmca exception that permitted cell phone unlocking until a couple of weeks ago, on the grounds that there is currently a respectable availability of unlocked phones for consumers to utilize anyways, failing to realize the perhaps less than immediately obvious unintended consequences of outlawing the unlocking of new cell phones.

        In creating laws which protect locked cell pho

    • by wierd_w (1375923)

      In the US, unless the box explicity says the phone is not locked, then it is. Being simlocked to a specific carrier is "the default" condition in the US, regardless of if you elect to pay full price up front or not.

      Ergo, if you waltz into the ATT store, and see that sexy samsung galaxy smartphone, and whip out the 600 to 1000$ to pay for it, the clerk will reach behind the counter, pull out the box, and hand it to you. The box says nothing about it being carrier locked. But it is. Take it to a T-mobile sto

  • by Bill_the_Engineer (772575) on Friday March 01, 2013 @07:36PM (#43050609)
    Like all things coming from the White House Petition Site, this is an opportunity for the President to appear like he is in touch with the common man. Expect an official looking executive directive and a press release from the relevant agency. After that... We'll see.
    • Re: (Score:1, Troll)

      by geekoid (135745)

      You people are idiots.
      The Whitehouse create a way to get more public input, and the acts on it, but no, no one is ever happy.

      • Get me a working budget first, then let's worry about the next big internet petition.
        • by Reverand Dave (1959652) on Friday March 01, 2013 @07:58PM (#43050801)
          He was right the first time. You're an idiot. Getting a working budget is the job of congress and they aren't gonna do anything to help the Whitehouse. Something like this is more in line with the executive branch, but if it really makes you feel better to blame our ruined budget on something other than 2 unfunded, unjustified wars and corporate welfare, then by all means go ahead and point the finger...
        • Supposedly the House of Representatives is responsible for spending bills so why should petitioning the President mess that up?

      • As soon as I see one of those "public input" things being seriously discussed (and I don't mean a publicity "see, we are talking about it" stunt on C-SPAN) and not just laughed off in the cafeteria, we can start talking.

        • As soon as I see one of those "public input" things being seriously discussed (and I don't mean a publicity "see, we are talking about it" stunt on C-SPAN) and not just laughed off in the cafeteria, we can start talking.

          How about, actual policy directives in response to one [whitehouse.gov], which goes beyond even "being seriously discussed".

          • Now if only they could do something similar with something more serious (such as the TSA). The way they handled the TSA petition was simply comical.

          • Except that the majority of the government backed researchers already make their data available to the public. So your example isn't as great as you think it is.
            • Except that the majority of the government backed researchers already make their data available to the public

              A substantial share of government-backed research is done by the agency which already had the mandate that the petition sought to extend to other agencies.

              So what?

              So your example isn't as great as you think it is.

              Its a perfect example of the response to a petition exceeding what GGP asked for with regard to seeing of the petitions being at least "seriously discussed". You should probably not post bas

      • Agreed, "Take 'Yes' for an answer guys." This is one of the more positive results from a WH petition.

        Even if the FCC doesn't act on cellphone unlocking, when the FCC Chairman is on record saying the "ban [on unlocking] raises competition concerns; it raises innovation concerns," that's got to be worth some points at next year's LoC DCMA-exemption hearings.

      • by Mitreya (579078)

        The Whitehouse create a way to get more public input, and the acts on it, but no, no one is ever happy.

        We will see, of course, but the response record is pretty spotty so far. And the reviewing authority stating that "he is not sure what authority he has" does not inspire much confidence.

        Not many petitions get as much as a thoughtful response ("Build a Deathstar" was one of the best written, that says something). I believe the "acted on" petitions are in single digits - and not any of the controversial ones.

        • Spotty? I think the word you were looking for is shitty. I have yet to see a response that was actually worth a shit. I have signed several petitions too, including this one. Every single one of them had to have been a god damn joke. The many petitions from the time the site went up calling for an end to the drug war and the legalization of marijuana and hemp all get pretty much the same government anti-drug propaganda bullshit that they've been spewing for decades while claiming to be based on "scient

      • by Anonymous Coward

        Because they think that because 100k people out of 300million are unhappy with this ban Obama should immediately order a drone attack on the guy who did the banning and then send CIA kill teams in to wipe out the leadership of every wireless carrier in the country. Anything less than that and they will be unhappy with his response to this. Of course had he done that they would then complain about how he is ignoring the constitution.

        The reason we have such crappy lying politicians is because the USA is fil

      • by AK Marc (707885)
        Announcing they are "thinking" about something is not action. That is one of the complaints. The announcements are about the perception of action, but do not seem to contain actual action.
  • Not much use petitioning the Executive Branch anyway. The directive (not actually a law, but authorized by a law, and so has the force of law) came from the Librarian of Congress. I'm going to guess he's Legislative Branch. After all, his title even has "Congress" in the name. In other words, the Office of the President has no authority over him.

    Which goes a long way towards explaining the wrongheadedness of the decision, and should give a fine hint as to exactly what the FCC Chairman can expect to do a

    • Re:Wrong branch (Score:4, Informative)

      by DragonWriter (970822) on Friday March 01, 2013 @09:14PM (#43051285)

      Which goes a long way towards explaining the wrongheadedness of the decision, and should give a fine hint as to exactly what the FCC Chairman can expect to do about it. (Nothing.)

      The fact that the Librarian of Congress can issue a directive making it illegal under the DMCA for consumers to unlock phones that have been locked by providers does not mean that the FCC can't issue an order under its authority with regard to telecommunications prohibiting wireless vendors from locking phones in the first place, which would render the issue of a DMCA exemption allowing unlocking locked phones moot.

      Asking the FCC to investigate and explore possible action is, in a sense, more than the petition called for (as it called on the President to ask the Librarian of Congress to reverse the decision and, failing that, lobby Congress to take legislative action to reverse the LoC action.)

      • by erroneus (253617)

        The Librarian of Congress issued an EXEMPTION under the DMCA essentially spelling out "you cannot make a DMCA claim against people and other entities with regards to phones." That exemption expired.

        Now in addition to the big carriers benefiting from this expired exemption, who would be the pedestrian violators of this under the DMCA? Well, the geek crowd to be sure, but more importantly, it would be the smaller operators who resell mobile services to people at bargain prices. This has reduced the efficie

      • by TubeSteak (669689)

        The fact that the Librarian of Congress can issue a directive making it illegal under the DMCA for consumers to unlock phones that have been locked by providers

        The LoC did not make unlocking illegal.
        The default status of cell phone unlocking is 'not legal'

        The LoC allowed for an exemption to the law and then decided not to renew that exemption.

  • Perhaps I simply lack the imagination. Perhaps someone here could offer up a reasonable rationale as to how a carrier locked phone is protecting ANYONE's copyright? You understand this is being done, apparently, under the DMCA.

    The carriers have no copyright over which carrier I use.

    Now if they are talking about rooting a phone and loading custom firmware? That's a different matter. Because as we know, "media" such as flash drives, recordable CD/DVDs and such have been the target of pre-emtive fines/taxes which presume people will use them for violating someone's copyright and these measures are meant to compensate the largest of the copyright NPEs. (I love that -- NPEs: Non-Practicing Entities. They don't create music or art... they just buy it, limit it it and control it. We should all start calling the copyright houses copyright NPEs to better identify how they contribute to the arts.)

    But that's the thing about phones. The software/firmware is a part of the functional device. The software/firmware is copyrightable... but also patentable... it is erasable... replaceable. The software which carriers peddle contains things which the consumer has no interest to say the least and often arguably serves to harm the consumer. It is not about copyright as much as it is controlling the device and the consumer by extension. This exceeds the intent and purpose of copyright AND the DMCA.

    • by compro01 (777531)

      The DMCA prohibits bypassing "access control measures", in this case, carrier locks that control access to cell networks. There is no requirement that they be controlling access to copyrighted material.

      Reason $BIGNUM why the DMCA is a horrible law that should have been strangled in the crib.

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