• by Wendy Davis , Staff Writer @wendyndavis, November 15, 2013

Consumers could soon regain the ability to legally unlock their cell phones, if the new Federal Communications Commission head has his way.

This week, FCC Chairman Tom Wheeler told the wireless industry group CTIA to revise its consumer code to make clear that consumers can unlock their wireless phones after the expiration of their contracts.

“It is now time for the industry to act voluntarily or for the FCC to regulate,” Wheeler wrote on Thursday to CTIA President and CEO Steve Largent. “Let's set a goal of including the full unlocking rights policy in the CTIA Consumer Code before the December holiday season.”

Wheeler said in his letter that the CTIA should should require carriers to inform consumers about their right to unlock devices, and also unlock the devices for them, for free.

Unlocking cell phones allows them to be used on any compatible network, not simply the network the phone was originally bundled with. People who purchase used phones, or who travel abroad, often want to unlock the devices.

Currently, consumers who unlock phones do so by tinkering with the digital rights management software that comes with the devices. But circumventing that type of software potentially is a crime under the Digital Millennium Copyright Act.

Every three years, the Librarian of Congress issues exceptions to the anti-circumvention provisions that forbid removing digital locks. In the past, the Copyright Office granted an exemption that allowed people to unlock cell phones. But last year, the authorities decided to allow the exemption to expire. The result is that people who unlock cell phones now risk criminal prosecution.

When the copyright officials were considering the matter, CTIA successfully lobbied to criminalize unlocking. The group said that wireless carriers subsidize some smartphones because the carriers expect the devices to remain on the network.

The move drew an immediate backlash, with many observers asking why a copyright law aimed at preventing piracy should be able to prevent people from changing wireless carriers. The White House said it supported changing the law, and several bills to do so were introduced in Congress.

The CTIA itself backtracked somewhat. That group said earlier this year that it now supports the proposed Unlocking Consumer Choice and Wireless Competition Act (H.R. 1123), which would clarify that people who unlock wireless devices aren't violating copyright law.

Scott Bergmann, vice president of regulatory affairs for CTIA said in a statement this week that it “supports giving consumers a robust set of options.” He added that unlocked phones won't necessarily work on all networks, due to “the technological and engineering realities of wireless networks.”

Meanwhile, advocacy group Free Press points out that even if CTIA revises its code, carriers might not change their policies. “With no real enforcement mechanisms, the code's provisions too often turn into empty promises,” policy counsel Jennifer Yeh said in a statement. “But this letter sends a strong signal that the FCC is prepared to do the right thing.”