By Susan Crawford
What if, when you bought a new television, you had to decide which electrical network you'd like to use it on. That is essentially the problem most Americans face when buying a mobile phone.
Subsidized Verizon Wireless handsets can't function on AT&T's network, and AT&T handsets don't work on Verizon's. Other countries view this situation with amusement.
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Congress and the Federal Communications Commission can fix it: The licenses that allow carriers to operate their networks should carry the obligation to allow customers to use any handset they like.
Both AT&T and Verizon Wireless sell handsets to their customers below cost, then recoup the loss and add a hefty profit by way of contracts that last for years. According to a rule issued earlier this year by the U.S. Copyright Office, without permission from the companies, consumers may not legally "unlock" the handsets to enable them to work on a network other than the one they were designed for.
Using copyright law to police mobile phones seems like applying food and drug regulation to cars: It doesn't fit. But the Copyright Office says the computer program that allows a mobile phone to be used on a certain network is not only a mechanism for protecting the carrier's business but also a creative work, like a novel.
A 1998 law prohibits gaining access to something that is copyrighted by working around its technical shields. Although in the past the Copyright Office has allowed an exception for consumer unlocking of mobile phones, this year it banned the practice.
This month, after 114,000 Americans signed a petition protesting that decision, the White House said it didn't like it, either. FCC Chairman Julius Genachowski has said the ban raises concerns about unfair competition. Lawmakers are introducing legislation.
More significant is what's at stake. As a practical matter, even an unlocked phone may not work on certain networks because it lacks the radio transmitters and receivers it needs to function there. Verizon Wireless and AT&T intentionally use separate portions of radio spectrum. Those that are built for one carrier won't necessarily work on the other's network.
This is fine for big and powerful Verizon and AT&T. Device makers and computer-chip manufacturers will build customized mobile phones for each of them. However, as the Competitive Carriers Association has pointed out, manufacturers will have no incentive to make mobile phones for smaller and regional companies at a competitive cost.
The FCC, with backing from Congress, should allow consumers to bring their devices to any network they want to use. And carriers should be required to sell access to their networks to all comers, not just those who buy single-network devices.
Wireless networks are constructed on public airwaves. This is a problem we can fix.
Susan P. Crawford is the author of Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age.