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Tom Wheeler turns against his former employer, the CTIA

Phone unlocking -- defeating OEM and carrier software constraints that prevent users from freely switching between carriers with otherwise compatible devices -- has been a subject of much contention in the U.S.  Unlocking was ruled illegal -- unless your carrier allows it -- via the 1998 Digital Millennium Copyright Act [PDF] (DMCA).

Then in July 2010, the Library of Congress (LoC) ruled on language in the DMCA as it pertained to cell phones, arguing phone unlocking was legal.  But in an Oct. 2012 re-review, the LoC Librarian sided with OEMs like Apple, Inc. (AAPL) ruling that unlocking was actually illegal.  For consumers the ruling meant that they could void their warranties if they unlocked.  And it also stifled the development of unlocking tools, as participating in such efforts could now earn you fines and/or prison time.

But a fresh push to legalize unlocking is coming from new U.S. Federal Communications Commission's nominated chairman Tom Wheeler, who may replace Julius Genachowski, who in March left the FCC to serve as a senior fellow at the Aspen Institute, a non-profit think-tank.

FCC Tom Wheeler
Mr. Wheeler (seen to the right of President Obama) once worked for the CTIA, who is a top opponent of unlocking. [Image Source: WH.gov]

Mr. Wheeler comments:

Who knew the Library of Congress had this far of a reach?  I am a strong supporter of intellectual property rights. At the same point in time, I believe that when I as a consumer or you as a consumer, or anyone have fulfilled our commitment and we've paid off our contract, that we ought to have the right to use that device and move it across carriers as we see fit. I look forward to working on this issue and resolving this issue to give consumers flexibility.

I don't know whether it [should be] a permanent exemption [to the DMCA], whether it is a rewrite of the Copyright Act, or what the appropriate solution is, but I do believe there needs to be a solution and consumers should have the right to unlock their phones after they've lived up to their side of the agreement.

His decision to stand up for unlocking is somewhat interesting.

Earlier in his career he served as a lobbyist for the National Cable and Telecommunications Association (NCTA) and the Cellular Telecommunications and Internet Association (CTIA), as well as being a venture capitalist investing in numerous online/wireless business firms.  The CTIA in particular vigorously opposed unlocking, writing it "did not meet the burden of proof" to secure a Fair Use exemption to the DMCA.

In other words, Chairman Wheeler has done a 180, going from lobbying for a trade group that was one of unlocking's largest opponents, to heading the federal government's top wireless regulatory agency and championing unlocking.

His comments come at a critical moment -- his nomination hearing before the Democratic-controlled U.S. Senate.  His nomination is expected to go through, despite some controversy over his remarks which indicated he might have allowed AT&T, Inc. (Tto purchase Deutsche Telekom AG (ETR:DTE) subsidiary T-Mobile USA,  a move which his predecessor Mr. Genachowski fought to block.  He dismissed his blog on the topic as "hypothetical speculation".

iPhone
It is currently illegal to unlock devices like the iPhone. [Image Source: Engadget]

Mr. Wheeler has at least one other supporter in the FCC, regarding his unlocking views.  FCC Commissioner Ajit Pai -- a Republican serving on the FCC -- is a vocal advocate of unlocking.  While he says it's not the place of the FCC to authorize it, he urged Congress too, calling the ban ridiculous.  He remarked in an op-ed, "No one seriously believes that unlocking a cellphone to switch carriers is equivalent to piracy."

Source: ArsTechnica



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If you want to make something illegal...
By Motoman on 6/20/2013 4:24:31 PM , Rating: 5
...start with the DMCA. And the corporations who bought that law, and the judiciary that sold it to them.




RE: If you want to make something illegal...
By Reclaimer77 on 6/20/13, Rating: -1
RE: If you want to make something illegal...
By anactoraaron on 6/20/13, Rating: 0
By Cheesew1z69 on 6/20/2013 7:49:10 PM , Rating: 2
?

United States Presidents issue executive orders to help officers and agencies of the executive branch manage the operations within the federal government itself. Executive orders have the full force of law,[1] since issuances are typically made in pursuance of certain Acts of Congress, some of which specifically delegate to the President some degree of discretionary power (delegated legislation), or are believed to take authority from a power granted directly to the Executive by the Constitution . However, these perceived justifications cited by Presidents when authoring Executive Orders have come under criticism for exceeding executive authority; at various times throughout U.S. history, challenges to the legal validity or justification for an order have resulted in legal proceedings.


RE: If you want to make something illegal...
By phatboye on 6/21/2013 3:11:24 AM , Rating: 5
So now we are blaming the Obama administration for the DMCA?


RE: If you want to make something illegal...
By Reclaimer77 on 6/21/13, Rating: -1
By Mint on 6/22/2013 9:32:49 AM , Rating: 3
That's your evidence that Obama is responsible? God, you're a joke.

This is not a static world where everything stays constant for every president. The internet has been evolving and bandwidth keeps on getting cheaper. The first major media piracy going on was with music, because files are pretty small. The RIAA started suing individuals for distributing digital music with file sharing programs in 2003. Funny how you don't similarly blame Bush for that.

Eventually it became economical to have P2P video streaming, and now bandwidth is cheap enough to have servers stream video and cover the costs with the low revenue they get from ads (youtube was loss-leading for a long time, and they got way better ad revenue than other shady streaming sites).

Only when technology reached this point was it worthwhile for big media to fight streaming sites with the DCMA.


By euclidean on 6/24/2013 10:16:29 AM , Rating: 3
Umm....really? Where were you in 2004? When I left home for college I was very involved in the Tech world...DMCA take down requests were big then, their bigger now because more and more people are now connected to the Tech world. We didn't have the masses on their iPhones in 2004, and thus the population of those using the internet (and hence, those using the internet for personal gain, albeit sometimes illegally) was much smaller than we have today.


By ipay on 6/25/2013 10:40:19 AM , Rating: 1
Serious question... now or at anytime during your life did you have to wear a helmet to keep from hurting yourself during normal activities?


RE: If you want to make something illegal...
By Shig on 6/20/2013 5:27:55 PM , Rating: 2
Citizens United strikes again.


RE: If you want to make something illegal...
By Motoman on 6/20/2013 5:46:13 PM , Rating: 5
Maybe.

But keep in mind that the DMCA was passed into law in 1998 - by President Clinton.

http://en.wikipedia.org/wiki/Digital_Millennium_Co...

Then it lived all through the Dubya years, and obviously is still alive today.

The number of political parties, and/or politicians, that you can trust stands right about at zero.


By superstition on 6/20/2013 10:38:32 PM , Rating: 3
We have one political party with national representation: the Plutocracy Party.


This is backwards
By Solandri on 6/20/2013 6:08:57 PM , Rating: 5
You bought the phone, and once you're beyond the 2-yr contract it's entirely paid for and yours. Unlocking doesn't need to be made legal. Keeping the phone locked beyond the initial contract period needs to be made illegal.




RE: This is backwards
By Motoman on 6/20/2013 6:49:45 PM , Rating: 4
F%ck that. Locking it *at all* should be illegal.

Cell phone service should be *exactly* the same as landline service.

Go to K-Mart. Buy a phone. Arrange service with whatever service provider you want. Change service to any other provider at any other time without any penalty. And no contracts...period.

It should be *exactly* that way. And before anyone wants to whine about losing the option for subsidized phones via long-term contract...firstly, all that really does is obfuscate the true cost of the phone. Secondly, if you can't afford to buy the phone you want outright, USE A CREDIT CARD. Or get a loan. Or maybe even buy a cheaper phone that you *can* afford.


RE: This is backwards
By Uncle on 6/20/2013 9:06:58 PM , Rating: 2
I agree with you. This argument was brought up years ago and the Industry convinced government in the US and Canada had to follow along, that cell phones are not just a phone like a landline, they are a smart phone, a phone and computer combined. That argument won out and the industry has been reaping the rewards ever since.


RE: This is backwards
By rs2 on 6/20/2013 9:38:45 PM , Rating: 2
quote:
Go to K-Mart. Buy a phone.


That's the problem right there. Most people *don't* buy their cell phones, they lease them. And generally the company doing the leasing is free to set terms of usage.

That said, I agree that when someone does purchase a mobile device outright it should work exactly as you describe. Same applies when the lease period expires and the user is now the owner of the device.


RE: This is backwards
By Mint on 6/22/2013 9:36:29 AM , Rating: 2
quote:
That's the problem right there. Most people *don't* buy their cell phones, they lease them. And generally the company doing the leasing is free to set terms of usage.

Exactly. How people like Moto don't understand that is beyond me.

What's important, though, is that when we do actually buy a phone, we can unlock it.


RE: This is backwards
By bigboxes on 6/20/2013 9:58:57 PM , Rating: 2
Wow. Totally agree. If congress wants to pass some legislation they should make it illegal to for the carriers to subsidize cell phones. Just as they did when they broke up the original AT&T they need to make it SOP that you purchase the phones at retail. That would drive down cost of the phones that are priced artificially high to begin with. I'm sure that Samsung, Apple and the others don't want unsubsidized phones to become the norm. With no automatic locking into contracts when you purchase your new phone it would force carriers to provide the best service and customer service or lose their customers. Like any other business. Phone makers and chip makers can put all of the bands used by the big four on one chip. We've gotten to the point that the chips are small enough to do so.

I won't hold my breath though. We all know that big money and special interest control any attempt at change. Democrats and Republicans alike (and all politicians) feed at the same cash trough.


RE: This is backwards
By Mint on 6/22/2013 9:50:53 AM , Rating: 2
quote:
That would drive down cost of the phones that are priced artificially high to begin with. I'm sure that Samsung, Apple and the others don't want unsubsidized phones to become the norm.
There's no indication that would happen. T-Mobile, for example, is selling phones for the same price but using equipment installment plans to show a lower up-front cost.

What we need more is legislation to make clear to the consumer what his total commitment is, i.e. the front page of any contract to an individual for any goods with a monthly commitment must have a 72-point font illustrating total cost of the contract and another number showing maximum cancellation cost.

People will be less likely to buy phones & plans they can't afford when they see a $2600 contract instead of a misleading $200 price.


RE: This is backwards
By cbf on 6/24/2013 1:33:46 PM , Rating: 2
The T-Mobile plan is much more sensible and transparent. They essentially give you a loan to buy the phone. At the end of the 20 months or so, the phone is yours and your monthly bill goes down.

The problem is that T-Mobile is too small a carrier to by itself cause the price of phones to go down, although the Lumia 521 at $150 ($130 at Walmart) free and clear unsubsized is a good indicator of the way things could be.


RE: This is backwards
By fic2 on 6/24/2013 1:53:02 PM , Rating: 2
Agreed. I recently bought outright a Nokia Lumia 521 for my girlfriend. I/she owns it. But she has to get permission from T-Mobile to unlock it so she can use it in Europe later this summer. Who would put up with this type of crap for any other product?

Equivalent would be if you bought a car from GM and had to use GM gas until GM "unlocked" it for you so you could use other gas stations.


Illegal activity and warranties
By rs2 on 6/20/2013 8:48:19 PM , Rating: 4
quote:
But in an Oct. 2012 re-review, the LoC Librarian sided with OEMs like Apple, Inc. (AAPL) ruling that unlocking was actually illegal. For consumers the ruling meant that they could void their warranties if they unlocked.


Um, no. It means that consumers could be prosecuted for unlocking their devices, and that the people who develop and distribute unlocking tools could be prosecuted under the DMCA for helping others circumvent something that is protected by the DMCA. Because the DMCA is a draconian piece of garbage.

Manufacturers are free to void warranties if a consumer unlocks their device, regardless of whether or not unlocking is legal. Manufacturers are under no obligation to warrant or condone something just because it is legal. Case in point; overclocking is not illegal, but overclocking your CPU (or GPU) will still void your warranty.




I think its pretty obvious...
By V-Money on 6/20/2013 6:40:26 PM , Rating: 3
quote:
His nomination is expected to go through, despite some controversy over his remarks which indicated he might have allowed AT&T, Inc. (T) to purchase Deutsche Telekom AG (ETR:DTE) subsidiary T-Mobile USA, a move which his predecessor Mr. Genachowski fought to block.


quote:
In other words, Chairman Wheeler has done a 180, going from lobbying for a trade group that was one of unlocking's largest opponents, to heading the federal government's top wireless regulatory agency and championing unlocking.


Obviously he has a locked iPhone with ATT and wants to switch to T-Mobile. He wanted ATT to buy T-Mobile so it wouldn't be an issue, but now that the deal fell through he wants to force ATT to let him make the switch.




More government regulations = more socialism
By sleepeeg3 on 6/21/2013 11:45:50 AM , Rating: 1
Of course unlocking should be legal, unless you are under a contract and that violates the terms of the contract. If you buy a subsidized phone from a carrier, you know what you are getting. It is not a surprise that it is locked. You received a discount for purchasing. Why are you bitching about it?

If you want an unlocked phone you always have the option of buying one outright. You have that freedom.

People just want to complain about everything and have the government babysit everything. If you don't like contracts, then choose an option that doesn't have one! If you don't like cell phones being locked then buy one outright. Quit whining!!!




By ven1ger on 6/21/2013 1:47:29 PM , Rating: 2
Where is the discount for purchasing a subsidized phone? You pay additional costs within the contract for the cost of the phone over the contract period. After that you own the phone so why shouldn't you be able to unlock after the contract is done. Government made the rules, it should be changed, why shouldn't people complain about it?

All four phones on our plan are unsubsidized phones, but I don't see why people shouldn't be able to complain about a bad law?


"There's no chance that the iPhone is going to get any significant market share. No chance." -- Microsoft CEO Steve Ballmer














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