Feb 25 2014, 10:51am CST | by Forbes
This evening the House of Representatives is expected to vote upon phone unlocking legislation (H.R. 1123). Unfortunately, while we have worked on this issue for over a year, we have more games and shenanigans by Congress rather than a concerted attempt to deal with the problem.
In July, legislation passed the House Judiciary Committee that was supported by the Wireless Association. Then last week, when Congress was in recess and not even in Washington, lobbyists for the wireless industry secretly added a new provision to the legislation that has never been voted upon. The legislation that is on the floor today is not the same legislation that passed committee, and is being brought to the floor in a manner that will not allow for any amendments to fix the secret addition by the Wireless Association. The ability to add secret provisions in the middle of the night, to legislation that has already passed committee, when Congress is on recess, is precisely why big company spend millions on lobbyists.
While the Committee staff insists that this is only a small technical change rather than a substantive change, by definition it is of substance because with this new provision all the major organizations involved in the campaign on unlocking are withdrawing their support, including iFixit, the Electronic Frontier Foundation, Public Knowledge, Generation Opportunity and FreedomWorks. Many of the Members supporting the legislation, including its co-sponsors, are now circulating a letter telling colleagues to oppose the bill. Republicans and Democrats are turning against the bill for not solving the real problem.
At this point, we hope that the House will pass a clean bill.
In 2012, the Wireless Association lobbied to make phone unlocking illegal. The ban on phone unlocking is a clear case of crony capitalism on behalf of some of the largest companies with the largest lobbying shops in Washington, D.C. Now last week they added a provision to the legislation in secret that specifically states that the legislation doesn’t apply to “bulk unlocking.”
The change may seem slight, but it’s implications could be very significant. Our opposition to this added language has nothing to do with copyright reform and everything to do with treating consumers and small businesses the same and ensuring that consumers can actually unlock their devices.
Many consumers have to rely upon others to unlock their devices for them, under this added text small businesses could not provide that service. One of the biggest impacts of the Librarian’s ruling was that it has dried up the phone resale market. The largest electronics reseller, Gazelle, should be able to buy phones from consumers, check them against a list of stolen devices, and then unlock them for resale. This is a critical part of how the wireless market functions.
At this point we hope that the Senate will pass clean legislation that reflects the reason why are here to begin with, the mass campaign on cellphone unlocking. A real solution to this problem requires 1) allowing for consumers to unlock their devices, 2) allowing businesses to offer unlocking services, and 3) does so on a permanent basis to provide certainty to the market. This is what the Senate should consider to conference with the House version of the legislation.
Enabling consumers to unlock their devices, and resellers to do it for them, will ultimately provide a more dynamic market by removing unnecessary regulatory and legal barriers to the free market.
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