The ability to attach devices to the public telephone network seems to make so much common sense now, but there was a time when this was not possible.

Until the 1970’s, the AT&T monopoly prohibited network attachments. This was done under the premise that if devices were allowed to attach to the network, all control would be lost and the network would crash and burn. Wireless carriers now have come to impose similar restrictions on the attachment of devices to wireless networks, but upcoming U.S. Federal Communications Commission (FCC) regulations could change this.

In 1968 a new device, the Carterphone, came to challenge the AT&T non-attachment rule. The Carterphone enabled communications between a telephone and a mobile radio. In a case by the same name, the FCC struck down the AT&T non-attachment rule.

In retrospect, the AT&T non-attachment rule had the effect of suppressing innovation in the making of telephones. It is not surprising that after AT&T was forced to allow network attachments, innovation of end-user telephone devices mushroomed. Milestone developments such as the fax machine, the answering machine and the modem made their way into the market place, and the Carterphone decision has been celebrated as one of the pivotal points in telecom history and a definite contribution to U.S. economic prosperity. Simply stated, the network-attachment prohibition artificially held back progress. We see that now, but as the saying goes, “hindsight is 20-20.” Or is it really?

If the non-attachment rule was struck down, why is it that users cannot connect Apple’s iPhone to any wireless network? Currently, the device is restricted to one network — AT&T, but this certainly is not because of technological limitations. The reason is that, as it turns out, the Carterphone decision only applies to wired telephone networks.

However, wireless carriers do not prohibit network-attachments per se. In fact, some will point out that equipment can freely attach to their wireless networks — so long as such equipment is first certified by them. But why place equipment on a waiting list and allow them in the gate one-by-one?

Is it fear that the wireless network will crash and burn if uncertified devices are attached? Is it perhaps a concern that certain devices will bring with them competing applications? Why must a litmus test be applied to prospective network devices to see if the equipment is consistent with the carrier’s business model? Basically, this self-appointed gatekeeper function has the same effect as the old non-attachment prohibition — to suppress competition and innovation. There is no question that new equipment needs some form of certification to ensure conformity with safe emission standards and other consumer protection measures, but this already is performed by the FCC. Why is a second certification needed by the carriers?

In the United States, it is time for much needed regulations in wireless services and devices. In 2007, Skype Communications filed a petition with the FCC requesting, among other things, that the FCC consider the Carterphone principle as applicable to wireless networks. As a result of the petition and comments from industry, scholars and the general public, the FCC has issued a notice of proposed rulemaking outlining rules regarding open broadband Internet access.

One of the proposed provisions in the notice states that carriers cannot prevent users from connecting lawful devices to the network. Further, the notice inquires into the practice of “tethering” (using a cell phone as a modem to access wireless Internet networks) and whether carriers should be required to allow tethering. In sum, it will be up to all of us and the pressure we place on regulators to set the stage for the direction we take in the wireless revolution. Decisions made today will determine the extent of progress of decades to come.

Raul Magallanes runs a Houston-based law firm focusing on telecommunications law.
He may be reached at +1 (281) 317-1397 or by email at raul@ rmtelecomlaw.com.