The Obama Administration today responded to an online petition by saying that it “agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties. ” The blog post on WhiteHouse.gov went even further in saying “In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network.”
White House senior advisor for Internet, Innovation & Policy David Edelman said it is “common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers’ needs.”
The petition and White House response was in reaction to a decision by the Librarian of Congress, which originally supported consumers’ right to unlock a phone but, last fall issued an order that took effect on January 28th, prohibiting the practice as a violation of the Digital Millennium Copyright Act.
May take an act of Congress
It’s important to note that the Librarian of Congress works for the legislative branch — not the executive branch, so it is likely that any change in policy would have to come as a result of Congressional legislation. Federal Trade Commission (FCC) chairman Julius Genachowski also issued a statement that the Library of Congress ruling “raises serious competition and innovation concerns, and for wireless consumers, it doesn’t pass the common sense test.” He said that the FCC “is examining this issue, looking into whether the agency, wireless providers, or others should take action to preserve consumers’ ability to unlock their mobile phones” and he is encouraging “Congress to take a close look and consider a legislative solution.”
The CTIA, which represents cell phone carriers including including AT&T and Verizon supported the Librarian of Congress’s decision. In a blog post, CTIA’s Senior Vice President and General Counsel, Mike Altschul, reminded consumes that “The penalties for unlocking a subsidized wireless phone without carrier consent can be severe. Civil penalties are based on the carrier’s actual damages and any additional profits of the violator, or a court can award statutory damages of not less than $200 or more than $2,500 per individual act. Criminal penalties are even more severe: any person convicted of violating section 1201 willfully and for purposes of commercial advantage or private financial gain (1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and (2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.