Sen. Leahy Introduces Bill to Re-Establish Exemption for Cellphone Unlocking in Law

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By Paul Barbagallo  

Senate Judiciary Chairman Pat Leahy (D-Vt.) has become the latest lawmaker--and one of the biggest names--among those in Congress in recent days to introduce legislation that would allow consumers to unlock the software that prevents most mobile phones from working on another carriers' network.

Leahy and three other members of the committee on March 11 formally introduced the Unlocking Consumer Choice and Wireless Competition Act, which would reinstate an exemption made by the Librarian of Congress in 2010 for unlocking phones in copyright law.

The bill comes a week after more than 100,000 people signed an online petition to the White House urging the administration to ask the Librarian of Congress, James Billington, to reverse his 2012 decision to remove the exemption to the anti-circumvention provisions of the Digital Millennium Copyright Act of 1998, 17 U.S.C. §1201(a).

The practice of unlocking, which in some instances can enable consumers to switch carriers and keep their actual phone, carries a $500,000 fine and five years in prison.

“This straightforward restoring bill is about promoting consumer rights,” Leahy said in a press release issued late March 11. “When consumers finish the terms of their contract, they should be able to keep their phones and make their own decision about which wireless provider to use.”

Leahy's bill, which is being cosponsored with Sens. Charles Grassley (R-Iowa), ranking member of the committee; Al Franken (D-Minn.), chairman of the privacy, technology and the law subcommittee; and Orrin Hatch (R-Utah), is the third to be introduced in Congress since the online petition garnered 100,000 signatures, prompting a formal response from the White House.

On March 5, Sen. Ron Wyden (D-Ore.), chairman of the Finance Committee's International Trade, Customs, and Global Competitiveness Subcommittee, unveiled the Wireless Device Independence Act (S. 467), which, like Leahy's bill, would put the matter under Judiciary's jurisdiction.

Then, on March 7, Sens. Amy Klobuchar (D-Minn.), Mike Lee (R-Utah), and Richard Blumenthal (D-Conn.) offered the Wireless Consumer Choice Act (S. 481), which would require the Federal Communications Commission, pursuant to the agency's authority under Title III of the Communications Act, to write rules permitting the unlocking of devices within 180 days.

Klobuchar and Blumenthal serve on both the Judiciary and Commerce committees; Lee serves only on Judiciary.

Leahy Bill Seen as First to Move

Of the three bills, Leahy's bill is seen as the one most likely to advance first, since Judiciary has jurisdiction over copyright issues; commerce has jurisdiction over the FCC.

Meanwhile, in the House, Reps. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, and John Conyers (D., Mich.), the committee's ranking member, are expected to introduce legislation similar to Leahy's later this week, aides confirmed.

Also in the House, Rep. Anna Eshoo (D-Calif.), the ranking member of the Energy and Commerce Communications and Technology Subcommittee, which has jurisdiction over the FCC, is expected to introduce a companion to Klobuchar's Wireless Consumer Choice Act in the coming days.

Public-interest Groups Have Reservations

In an interview March 12, Sherwin Siy, vice president of legal affairs at the public-interest group Public Knowledge, credited Leahy for trying to restore the exemption, but said the bill would “kick the can down the road” for three years.

Under Leahy's bill, in 2015, the librarian of congress would have to go through the exemption rulemaking again. There is nothing in the legislation that would prevent the librarian from, at that time, removing the unlocking exemption.

Siy said that unlike Leahy's bill, Klobuchar's and Wyden's bills would “actually change the law.”

Siy said any legislation should permanently codify an exemption for cellphone unlocking and address what he said has been an “overreach” of copyright law.

“It's baffling that copyright law should intrude upon the unlocking of cellphones, which is a telecommunications and competition policy issue,” Siy told BNA.

For years, wireless carriers large and small have battled fiercely for handset exclusivity deals like AT&T Inc.’s historic agreement with Apple Inc. to be the first carrier to offer the iPhone, a common practice that has raised the ire of consumers and smaller-market players.

Even if the ban is lifted, some phones might not work on all carriers' networks because of antennae customized for each carrier's licensed frequencies and choice of air interface, a larger issue now being discussed internally at the FCC.

The full text of the bill is available at