PRIOR PRINTER'S NOS. 2660, 2736 PRINTER'S NO. 3091
No. 2069 Session of 1999
INTRODUCED BY GANNON, FARGO, CORRIGAN, WILLIAMS, FRANKEL, FICHTER, E. Z. TAYLOR, SEMMEL, WILT, ADOLPH, VAN HORNE, L. I. COHEN, CHADWICK, MASLAND, WALKO, ORIE AND YOUNGBLOOD, NOVEMBER 15, 1999
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES, MARCH 13, 2000
AN ACT 1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania 2 Consolidated Statutes, further providing for manufacture, 3 distribution or possession of devices for theft of 4 telecommunications services, FOR THE DEFINITION OF "BOTTLE <-- 5 CLUB"; PROHIBITING CERTAIN PRACTICES BY TELEMARKETERS AND 6 CERTAIN BILLING PRACTICES OF LONG DISTANCE TELEPHONE SERVICE 7 PROVIDERS; AND MAKING AN EXCEPTION TO CERTAIN FEES RELATING 8 TO CRIMINAL RECORDS. 9 The General Assembly of the Commonwealth of Pennsylvania 10 hereby enacts as follows: 11 Section 1. Section 910 of Title 18 of the Pennsylvania 12 Consolidated Statutes is amended to read: 13 § 910. Manufacture, distribution or possession of devices for 14 theft of telecommunications services. 15 (a) Offense defined.--Any person commits an offense if he: 16 (1) makes, distributes, possesses, uses or assembles an 17 unlawful telecommunication device or modifies, alters, 18 programs or reprograms a telecommunication device designed,
1 adapted or which can be used: 2 (i) for commission of a theft of telecommunication 3 service or to acquire or facilitate the acquisition of 4 telecommunication service without the consent of the 5 telecommunication service provider; or 6 (ii) to conceal or to assist another to conceal from 7 any telecommunication service provider or from any lawful 8 authority the existence or place of origin or of 9 destination of any telecommunication; or 10 (2) sells, possesses, distributes, gives or otherwise 11 transfers to another or offers, promotes or advertises for 12 sale any: 13 (i) unlawful telecommunication device, or plans or 14 instructions for making or assembling the same, under 15 circumstances evidencing an intent to use or employ such 16 unlawful telecommunication device, or to allow the same 17 to be used or employed for a purpose described in 18 paragraph (1), or knowing or having reason to believe 19 that the same is intended to be so used, or that the 20 aforesaid plans or instructions are intended to be used 21 for making or assembling such unlawful telecommunication 22 device; or 23 (ii) material, including hardware, cables, tools, 24 data, computer software or other information or 25 equipment, knowing that the purchaser or a third person 26 intends to use the material in the manufacture of an 27 unlawful telecommunication device. 28 (b) Grading.--[An offense under this section is a felony of 29 the third degree if the person convicted of such offense has 30 been previously convicted of any similar crime in this or any 19990H2069B3091 - 2 -
1 other state or Federal jurisdiction. Otherwise it is a 2 misdemeanor of the first degree.] 3 (1) Except for violations of this section as provided 4 for in paragraph (2) or (3), an offense under this section is 5 a misdemeanor of the first degree. 6 (2) An offense under this section is a felony of the 7 third degree if: 8 (i) the defendant has been convicted previously 9 under this section or convicted of any similar crime in 10 this or any Federal or other state jurisdiction; or 11 (ii) the violation of this section involves at least 12 ten, but not more than 50, unlawful telecommunication 13 devices. 14 (3) An offense under this section is a felony of the 15 second degree if: 16 (i) the defendant has been convicted previously on 17 two or more occasions for offenses under this section or 18 for any similar crime in this or any Federal or other 19 state jurisdiction; or 20 (ii) the violation of this section involves more 21 than 50 unlawful telecommunication devices. 22 (4) For purposes of grading an offense based upon a 23 prior conviction under this section or for any similar crime 24 pursuant to paragraphs (2)(i) and (3)(i), a prior conviction 25 shall consist of convictions upon separate indictments or 26 criminal complaints for offenses under this section or any 27 similar crime in this or any Federal or other state 28 jurisdiction. 29 (5) As provided for in paragraphs (2)(i) and (3)(i), in 30 grading an offense under this section based upon a prior 19990H2069B3091 - 3 -
1 conviction, the term "any similar crime" shall include, but 2 not be limited to, offenses involving theft of service or 3 fraud, including violations of the Cable Communications 4 Policy Act of 1984 (Public Law 98-549, 98 Stat. 2779). 5 (b.1) Separate offenses.--For purposes of all criminal 6 penalties or fines established for violations of this section, 7 the prohibited activity established herein as it applies to each 8 unlawful telecommunication device shall be deemed a separate 9 offense. 10 (b.2) Fines.--For purposes of imposing fines upon conviction 11 of a defendant for an offense under this section, all fines 12 shall be imposed in accordance with section 1101 (relating to 13 fines). 14 (c) Restitution.--The court [may] shall, in addition to any 15 other sentence authorized by law, sentence a person convicted of 16 violating this section to make restitution under section 1106 17 (relating to restitution for injuries to person or property) or 18 42 Pa.C.S. § 9721(c) (relating to sentencing generally). 19 (c.1) Forfeiture of unlawful telecommunication devices.-- 20 Upon conviction of a defendant under this section, the court 21 may, in addition to any other sentence authorized by law, direct 22 that the defendant forfeit any unlawful telecommunication 23 devices in the defendant's possession or control which were 24 involved in the violation for which the defendant was convicted. 25 (c.2) Venue.--An offense under subsection (a) may be deemed 26 to have been committed at either place where the defendant 27 manufactures or assembles an unlawful telecommunication device 28 or assists others in doing so, or the places where the unlawful 29 telecommunication device is sold or delivered to a purchaser, in 30 accordance with section 102 (relating to territorial 19990H2069B3091 - 4 -
1 applicability). It shall be no defense to a violation of 2 subsection (a) that some of the acts constituting the offense 3 occurred outside of this Commonwealth. 4 (d) Civil action.--[A telecommunication service provider 5 aggrieved by a violation of this section may, in a civil action 6 in any court of competent jurisdiction, obtain appropriate 7 relief, including preliminary and other equitable or declaratory 8 relief, compensatory and punitive damages, reasonable 9 investigation expenses, costs of suit and attorney fees.] 10 (1) Any person aggrieved by a violation of this section 11 may bring a civil action in any court of competent 12 jurisdiction. 13 (2) The court may: 14 (i) grant temporary and final injunctions to prevent 15 or restrain violations of this section; 16 (ii) at any time while an action is pending, order 17 the impounding, on such terms as it deems reasonable, of 18 any unlawful telecommunication device that is in the 19 custody or control of the violator and that the court has 20 reasonable cause to believe was involved in the alleged 21 violation of this section; 22 (iii) award damages as described in subsection 23 (d.1); 24 (iv) in its discretion, award reasonable attorney 25 fees and costs, including, but not limited to, costs for 26 investigation, testing and expert witness fees, to an 27 aggrieved party who prevails; or 28 (v) as part of a final judgment or decree finding a 29 violation of this section, order the remedial 30 modification or destruction of any unlawful 19990H2069B3091 - 5 -
1 telecommunication device involved in the violation that 2 is in the custody or control of the violator or has been 3 impounded under subparagraph (ii). 4 (d.1) Types of damages recoverable.--Damages awarded by a 5 court under this section shall be computed as either of the 6 following: 7 (1) Upon his election of such damages at any time before 8 final judgment is entered, the complaining party may recover 9 the actual damages suffered by him as a result of the 10 violation of this section and any profits of the violator 11 that are attributable to the violation and are not taken into 12 account in computing the actual damages. In determining the 13 violator's profits, the complaining party shall be required 14 to prove only the violator's gross revenue and the violator 15 shall be required to prove his deductible expenses and the 16 elements of profit attributable to factors other than the 17 violation. 18 (2) Upon election by the complaining party at any time 19 before final judgment is entered, that party may recover, in 20 lieu of actual damages, an award of statutory damages of 21 between $250 to $10,000 for each unlawful telecommunication 22 device involved in the action, with the amount of statutory 23 damages to be determined by the court, not the jury, as the 24 court considers just. In any case where the court finds that 25 any of the violations of this section were committed 26 willfully and for purposes of commercial advantage or private 27 financial gain, the court in its discretion may increase the 28 award of statutory damages by an amount of not more than 29 $50,000 for each unlawful telecommunication device involved 30 in the action. 19990H2069B3091 - 6 -
1 (3) For purposes of all civil remedies established for 2 violations of this section, the prohibited activity 3 established in this section applies to each unlawful 4 telecommunication device and shall be deemed a separate 5 violation. 6 (e) Definitions.--As used in this section, the following 7 words and phrases shall have the meanings given to them in this 8 subsection: 9 "Manufacture of an unlawful telecommunication device." To 10 produce or assemble an unlawful telecommunication device or to 11 modify, alter, program or reprogram a telecommunication device 12 to be capable of acquiring, receiving, transmitting, decrypting 13 or facilitating the acquisition, receipt, transmission or 14 decryption of a telecommunication service without the consent of 15 the telecommunication service provider or to knowingly assist 16 others in those activities. 17 "Telecommunication device." Any type of instrument, device, 18 machine or equipment which is capable of transmitting, 19 acquiring, decrypting or receiving any telephonic, electronic, 20 data, Internet access, audio, video, microwave or radio 21 transmissions, signals, communications or [any part of such 22 instrument, device, machine or equipment or any computer 23 circuit, computer chip, electronic mechanism or other component 24 which is capable of facilitating the transmission or reception 25 of telephonic, electronic or radio communications.] services, 26 including the receipt, acquisition, transmission or decryption 27 of all such communications, transmissions, signals or services 28 over any cable television, telephone, satellite, microwave, 29 radio or wireless distribution system or facility, or any part, 30 accessory or components thereof, including any computer circuit, 19990H2069B3091 - 7 -
1 security module, smart card, software, computer chip, electronic 2 mechanism or other component, accessory or part which is capable 3 of facilitating the transmission, decryption, acquisition or 4 reception of all such communications, transmissions, signals or 5 services. 6 ["Telecommunication service." The meaning given to it in 7 section 3926 (relating to theft of services). 8 "Telecommunication service provider." The meaning given to 9 it in section 3926 (relating to theft of services). 10 "Unlawful telecommunication device." The meaning given to it 11 in section 3926 (relating to theft of services).] 12 "Telecommunication service." The meaning given to it in 13 section 3926 (relating to theft of services) and also any 14 service provided by any radio, telephone, cable television, 15 satellite, microwave or wireless distribution system or 16 facility, including, but not limited to, any and all electronic, 17 data, video, audio, Internet access, telephonic, microwave and 18 radio communications, transmissions, signals and services. 19 "Telecommunication service provider." The meaning given to 20 it in section 3926 (relating to theft of services) and includes 21 any person or entity providing any telecommunication service, 22 including, but not limited to, any person or entity owning or 23 operating any cable television, satellite, telephone, wireless, 24 microwave or radio distribution system or facility. 25 "Unlawful telecommunication device." The meaning given to it 26 in section 3926 (relating to theft of services) and includes any 27 telecommunication device which is capable of, or has been 28 altered, designed, modified, programmed or reprogrammed, alone 29 or in conjunction with another telecommunication device or 30 devices, so as to be capable of facilitating the acquisition, 19990H2069B3091 - 8 -
1 receipt, transmission or decryption of a telecommunication 2 service without the consent or knowledge of the 3 telecommunication service provider. In addition to the examples 4 listed in section 3926, the term includes, but is not limited 5 to, any device, technology, product, service, equipment, 6 computer software, or component or part thereof, primarily 7 distributed, sold, designed, assembled, manufactured, modified, 8 programmed, reprogrammed or used for the purpose of providing 9 unauthorized decryption of, access to, or acquisition of, any 10 telecommunication service provided by any cable television, 11 satellite, telephone, wireless, microwave or radio distribution 12 system or facility. 13 SECTION 2. THE DEFINITION OF "BOTTLE CLUB" IN SECTION <-- 14 7329(C) OF TITLE 18 IS AMENDED TO READ: 15 § 7329. PROHIBITION OF CERTAIN TYPES OF ENTERTAINMENT ON BOTTLE 16 CLUB PREMISES. 17 * * * 18 (C) DEFINITIONS.--AS USED IN THIS SECTION, THE FOLLOWING 19 WORDS AND PHRASES SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS 20 SUBSECTION: 21 "BOTTLE CLUB." AN ESTABLISHMENT OPERATED FOR PROFIT OR 22 PECUNIARY GAIN, WHICH HAS A CAPACITY FOR THE ASSEMBLAGE OF 20 OR 23 MORE PERSONS AND IN WHICH ALCOHOLIC LIQUORS, ALCOHOL OR MALT OR 24 BREWED BEVERAGES [ARE NOT LEGALLY SOLD BUT WHERE ALCOHOLIC 25 LIQUORS, ALCOHOL OR MALT OR BREWED BEVERAGES ARE EITHER PROVIDED 26 BY THE OPERATOR OR AGENTS OR EMPLOYEES OF THE OPERATOR FOR 27 CONSUMPTION ON THE PREMISES OR] ARE BROUGHT INTO [OR KEPT AT] 28 THE ESTABLISHMENT BY THE PATRONS OR PERSONS ASSEMBLING THERE FOR 29 USE AND CONSUMPTION. THE TERM SHALL NOT INCLUDE A LICENSEE UNDER 30 THE ACT OF APRIL 12, 1951 (P.L.90, NO.21), KNOWN AS THE LIQUOR 19990H2069B3091 - 9 -
1 CODE, OR ANY ORGANIZATION AS SET FORTH IN SECTION 6 OF THE ACT 2 OF DECEMBER 19, 1990 (P.L.1200, NO.202), KNOWN AS THE 3 SOLICITATION OF FUNDS FOR CHARITABLE PURPOSES ACT. 4 * * * 5 SECTION 3. TITLE 18 IS AMENDED BY ADDING SECTIONS TO READ: 6 § 7330. PROHIBITION OF CERTAIN PRACTICES BY TELEMARKETERS. 7 (A) OFFENSE DEFINED.--NO TELEMARKETER, AS DEFINED IN SECTION 8 2 OF THE ACT OF DECEMBER 4, 1996 (P.L.911, NO.147), KNOWN AS THE 9 TELEMARKETER REGISTRATION ACT, SHALL REFUSE OR OTHERWISE FAIL TO 10 DISCLOSE THE NAME, CITY, STATE AND TELEPHONE NUMBER OF THE 11 TELEMARKETER AFTER A RECIPIENT OF A TELEPHONE SOLICITATION BY 12 THE TELEMARKETER REQUESTS SUCH INFORMATION. 13 (B) PENALTY.--A PERSON WHO VIOLATES SUBSECTION (A) COMMITS A 14 SUMMARY OFFENSE AND SHALL, UPON CONVICTION, BE SENTENCED TO PAY 15 A FINE OF $250. 16 § 7331. PROHIBITION OF CERTAIN BILLING PRACTICES OF LONG 17 DISTANCE TELEPHONE SERVICE PROVIDERS. 18 (A) OFFENSE.--NO PERSON SHALL BILL A RESIDENTIAL TELEPHONE 19 SERVICE CONSUMER FOR MORE THAN ONE MONTH IN ADVANCE FOR LONG 20 DISTANCE TELEPHONE SERVICE FEES OR CHARGES WITHOUT THE 21 CONSUMER'S PRIOR WRITTEN APPROVAL. 22 (B) PENALTY.--A PERSON WHO VIOLATES SUBSECTION (A) COMMITS A 23 SUMMARY OFFENSE AND SHALL, UPON CONVICTION, BE SENTENCED TO PAY 24 A FINE OF $100. 25 SECTION 4. SECTION 9121(B) OF TITLE 18 IS AMENDED TO READ: 26 § 9121. GENERAL REGULATIONS. 27 * * * 28 (B) DISSEMINATION TO NONCRIMINAL JUSTICE AGENCIES AND 29 INDIVIDUALS.--CRIMINAL HISTORY RECORD INFORMATION SHALL BE 30 DISSEMINATED BY A STATE OR LOCAL POLICE DEPARTMENT TO ANY 19990H2069B3091 - 10 -
1 INDIVIDUAL OR NONCRIMINAL JUSTICE AGENCY ONLY UPON REQUEST. 2 EXCEPT AS PROVIDED IN SUBSECTION (B.1): 3 (1) A FEE MAY BE CHARGED BY A STATE OR LOCAL POLICE 4 DEPARTMENT FOR EACH REQUEST FOR CRIMINAL HISTORY RECORD 5 INFORMATION BY AN INDIVIDUAL OR NONCRIMINAL JUSTICE AGENCY, 6 EXCEPT THAT NO FEE SHALL BE CHARGED TO AN INDIVIDUAL WHO 7 MAKES THE REQUEST IN ORDER TO APPLY TO BECOME A VOLUNTEER 8 WITH AN AFFILIATE OF BIG BROTHERS OF AMERICA OR BIG SISTERS 9 OF AMERICA OR TO PARTICIPATE AS A VOLUNTEER IN A BLOCK PARENT 10 PROGRAM, INCLUDING, BUT NOT LIMITED TO, THE MCGRUFF HOUSE 11 PROGRAM. 12 (2) BEFORE A STATE OR LOCAL POLICE DEPARTMENT 13 DISSEMINATES CRIMINAL HISTORY RECORD INFORMATION TO AN 14 INDIVIDUAL OR NONCRIMINAL JUSTICE AGENCY, IT SHALL EXTRACT 15 FROM THE RECORD ALL NOTATIONS OF ARRESTS, INDICTMENTS OR 16 OTHER INFORMATION RELATING TO THE INITIATION OF CRIMINAL 17 PROCEEDINGS WHERE: 18 (I) THREE YEARS HAVE ELAPSED FROM THE DATE OF 19 ARREST; 20 (II) NO CONVICTION HAS OCCURRED; AND 21 (III) NO PROCEEDINGS ARE PENDING SEEKING A 22 CONVICTION. 23 * * * 24 Section 2 5. This act shall take effect in 60 days. <-- J4L18DMS/19990H2069B3091 - 11 -