TECH
03/12/2013 08:45 am ET

Critics Dispute AT&T Claim That Unlocking Cell Phones Is 'Easy As Possible'

As the White House and members of Congress expressed support last week for allowing consumers to "unlock" their cell phones for use on other networks, one wireless provider, AT&T, said the debate was much "hullabaloo" about nothing.

That's because AT&T already unlocks customers' phones, said Joan Marsh, AT&T's vice president of federal regulatory affairs.

"It’s a straightforward policy, and we aim to make the unlocking process as easy as possible," Marsh said in a blog post Friday.

But some critics say the process is not as easy as it sounds. While AT&T and other wireless providers unlock cell phones, they provide the service only under certain conditions.

The Obama administration and copyright reform advocates say those conditions make it difficult for many consumers to free their mobile devices for use on other networks.

"Phone companies play a significant number of games to make sure it's difficult to unlock phones," Derek Khanna, a visiting fellow at the Information Society Project at Yale Law School, said in an interview.

For example, AT&T and T-Mobile unlock cell phones only for current subscribers who have received service for a certain length of time (between 40 to 60 days), met the terms of their contracts, are not behind on payments, bought phones from authorized dealers and faxed in a proof of purchase.

Wireless providers may not unlock phones if consumers receive them as gifts or move to a part of the country where that carrier's service is poor or nonexistent, Lawrence Strickling, assistant secretary for communications and information at the Commerce Department, said last fall in a letter to the Library of Congress.

Moreover, wireless carriers may not be able to obtain the necessary code from the manufacturer to unlock the phone, according to Strickling.

"Therefore it is possible for a consumer to meet the unlocking policy and still be unable to have his device unlocked," he said.

Below AT&T's blog post, some commenters said the company's policies had prevented them from unlocking phones for use in another country to avoid roaming charges or after they purchased the devices on the Internet.

"It should not matter if someone sold it on eBay or Amazon," one commenter wrote. "As long as it is not stolen and no longer in the contract period, unlock it."

AT&T spokesman Mark Siegel declined to respond to the comments without more information about the writers' specific situations.

The debate over cell phone unlocking centers on the wireless industry's unique business model. Phone companies sell phones at discounted prices to consumers who sign contracts. The phones come installed with software that prevents them from switching to other networks, allowing carriers to recover the cost of subsidizing phones.

Some phone owners bypass the restriction by hacking the software to use their phones on any wireless network. From 2006 until this January, the Library of Congress had considered the technique -- known as "unlocking" -- exempt under a federal copyright law known as the Digital Millenium Copyright Act.

But last fall, the Library of Congress reversed course, and decided the exemption on cell phone unlocking should expire Jan. 26. Wireless providers pushed for the exemption to expire because they said they unlock phones already and consumers have the choice of buying from a wide range of unlocked devices.

In the blog post, AT&T's Marsh said the ruling "will not negatively impact any of AT&T’s customers" and added that the company has made the unlocking process easier by creating a website that allows iPhone customers to submit their unlock requests online.

But consumer advocates have worried the decision by Library of Congress will give wireless providers the ability to sue consumers who unlock their phones. In January, a public petition began circulating online to reverse the Library of Congress decision and legalize the unlocking of cell phones. Last month, the petition reached 100,000 signatures -- the threshold for a White House response.

Last week, the Obama administration issued a statement expressing support for allowing consumers to use their cell phones on other wireless networks. The White House statement, however, did not change the fact that cell phone unlocking may violate copyright law.

Last week, several members of Congress introduced bills to allow consumers to unlock mobile devices for use on other wireless networks, though the legislation has been criticized by advocates of copyright reform as being too weak because it does not propose changes to the Digital Millennium Copyright Act.

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