PRIOR PRINTER'S NO. 2660 PRINTER'S NO. 2736
No. 2069 Session of 1999
INTRODUCED BY GANNON, NOVEMBER 15, 1999
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, DECEMBER 6, 1999
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.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Section 910 of Title 18 of the Pennsylvania
8 Consolidated Statutes is amended to read:
9 § 910. Manufacture, distribution or possession of devices for
10 theft of telecommunications services.
11 (a) Offense defined.--Any person commits an offense if he:
12 (1) makes, distributes, possesses, uses or assembles an
13 unlawful telecommunication device or modifies, alters,
14 programs or reprograms a telecommunication device designed,
15 adapted or which can be used:
16 (i) for commission of a theft of telecommunication
17 service or to acquire or facilitate the acquisition of
18 telecommunication service without the consent of the
1 telecommunication service provider; or
2 (ii) to conceal or to assist another to conceal from
3 any telecommunication service provider or from any lawful
4 authority the existence or place of origin or of
5 destination of any telecommunication; or
6 (2) sells, possesses, distributes, gives or otherwise
7 transfers to another or offers, promotes or advertises for
8 sale any:
9 (i) unlawful telecommunication device, or plans or
10 instructions for making or assembling the same, under
11 circumstances evidencing an intent to use or employ such
12 unlawful telecommunication device, or to allow the same
13 to be used or employed for a purpose described in
14 paragraph (1), or knowing or having reason to believe
15 that the same is intended to be so used, or that the
16 aforesaid plans or instructions are intended to be used
17 for making or assembling such unlawful telecommunication
18 device; or
19 (ii) material, including hardware, cables, tools,
20 data, computer software or other information or
21 equipment, knowing that the purchaser or a third person
22 intends to use the material in the manufacture of an
23 unlawful telecommunication device.
24 (b) Grading.--[An offense under this section is a felony of
25 the third degree if the person convicted of such offense has
26 been previously convicted of any similar crime in this or any
27 other state or Federal jurisdiction. Otherwise it is a
28 misdemeanor of the first degree.]
29 (1) Except for violations of this section as provided
30 for in paragraph (2) or (3), an offense under this section is
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1 a misdemeanor of the first degree.
2 (2) An offense under this section is a felony of the
3 third degree if:
4 (i) the defendant has been convicted previously
5 under this section or convicted of any similar crime in
6 this or any Federal or other state jurisdiction; or
7 (ii) the violation of this section involves at least
8 ten, but not more than 50, unlawful telecommunication
9 devices.
10 (3) An offense under this section is a felony of the
11 second degree if:
12 (i) the defendant has been convicted previously on
13 two or more occasions for offenses under this section or
14 for any similar crime in this or any Federal or other
15 state jurisdiction; or
16 (ii) the violation of this section involves more
17 than 50 unlawful telecommunication devices.
18 (4) For purposes of grading an offense based upon a
19 prior conviction under this section or for any similar crime
20 pursuant to paragraphs (2)(i) and (3)(i), a prior conviction
21 shall consist of convictions upon separate indictments or
22 criminal complaints for offenses under this section or any
23 similar crime in this or any Federal or other state
24 jurisdiction.
25 (5) As provided for in paragraphs (2)(i) and (3)(i), in
26 grading an offense under this section based upon a prior
27 conviction, the term "any similar crime" shall include, but
28 not be limited to, offenses involving theft of service or
29 fraud, including violations of the Cable Communications
30 Policy Act of 1984 (Public Law 98-549, 98 Stat. 2779).
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1 (b.1) Separate offenses.--For purposes of all criminal
2 penalties or fines established for violations of this section,
3 the prohibited activity established herein as it applies to each
4 unlawful telecommunication device shall be deemed a separate
5 offense.
6 (b.2) Fines.--For purposes of imposing fines upon conviction
7 of a defendant for an offense under this section, all fines
8 shall be imposed in accordance with section 1101 (relating to
9 fines).
10 (c) Restitution.--The court [may] shall, in addition to any
11 other sentence authorized by law, sentence a person convicted of
12 violating this section to make restitution under section 1106
13 (relating to restitution for injuries to person or property) or
14 42 Pa.C.S. § 9721(c) (relating to sentencing generally).
15 (c.1) Forfeiture of unlawful telecommunication devices.--
16 Upon conviction of a defendant under this section, the court
17 may, in addition to any other sentence authorized by law, direct
18 that the defendant forfeit any unlawful telecommunication
19 devices in the defendant's possession or control which were
20 involved in the violation for which the defendant was convicted.
21 (c.2) Venue.--An offense under subsection (a) may be deemed
22 to have been committed at either place where the defendant
23 manufactures or assembles an unlawful telecommunication device
24 or assists others in doing so, or the places where the unlawful
25 telecommunication device is sold or delivered to a purchaser, in
26 accordance with section 102 (relating to territorial
27 applicability). It shall be no defense to a violation of
28 subsection (a) that some or all of the acts constituting the <--
29 offense occurred outside of this Commonwealth.
30 (d) Civil action.--[A telecommunication service provider
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1 aggrieved by a violation of this section may, in a civil action
2 in any court of competent jurisdiction, obtain appropriate
3 relief, including preliminary and other equitable or declaratory
4 relief, compensatory and punitive damages, reasonable
5 investigation expenses, costs of suit and attorney fees.]
6 (1) Any person aggrieved by a violation of this section
7 may bring a civil action in any court of competent
8 jurisdiction.
9 (2) The court may:
10 (i) grant temporary and final injunctions to prevent
11 or restrain violations of this section;
12 (ii) at any time while an action is pending, order
13 the impounding, on such terms as it deems reasonable, of
14 any unlawful telecommunication device that is in the
15 custody or control of the violator and that the court has
16 reasonable cause to believe was involved in the alleged
17 violation of this section;
18 (iii) award damages as described in subsection
19 (d.1);
20 (iv) in its discretion, award reasonable attorney
21 fees and costs, including, but not limited to, costs for
22 investigation, testing and expert witness fees, to an
23 aggrieved party who prevails; or
24 (v) as part of a final judgment or decree finding a
25 violation of this section, order the remedial
26 modification or destruction of any unlawful
27 telecommunication device involved in the violation that
28 is in the custody or control of the violator or has been
29 impounded under subparagraph (ii).
30 (d.1) Types of damages recoverable.--Damages awarded by a
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1 court under this section shall be computed as either of the
2 following:
3 (1) Upon his election of such damages at any time before
4 final judgment is entered, the complaining party may recover
5 the actual damages suffered by him as a result of the
6 violation of this section and any profits of the violator
7 that are attributable to the violation and are not taken into
8 account in computing the actual damages. In determining the
9 violator's profits, the complaining party shall be required
10 to prove only the violator's gross revenue and the violator
11 shall be required to prove his deductible expenses and the
12 elements of profit attributable to factors other than the
13 violation.
14 (2) Upon election by the complaining party at any time
15 before final judgment is entered, that party may recover, in
16 lieu of actual damages, an award of statutory damages of
17 between $250 to $10,000 for each unlawful telecommunication
18 device involved in the action, with the amount of statutory
19 damages to be determined by the court, not the jury, as the
20 court considers just. In any case where the court finds that
21 any of the violations of this section were committed
22 willfully and for purposes of commercial advantage or private
23 financial gain, the court in its discretion may increase the
24 award of statutory damages by an amount of not more than
25 $50,000 for each unlawful telecommunication device involved
26 in the action.
27 (3) For purposes of all civil remedies established for
28 violations of this section, the prohibited activity
29 established in this section applies to each unlawful
30 telecommunication device and shall be deemed a separate
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1 violation.
2 (e) Definitions.--As used in this section, the following
3 words and phrases shall have the meanings given to them in this
4 subsection:
5 "Manufacture of an unlawful telecommunication device." To
6 produce or assemble an unlawful telecommunication device or to
7 modify, alter, program or reprogram a telecommunication device
8 to be capable of acquiring, receiving, transmitting, decrypting
9 or facilitating the acquisition, receipt, transmission or
10 decryption of a telecommunication service without the consent of
11 the telecommunication service provider or to knowingly assist
12 others in those activities.
13 "Telecommunication device." Any type of instrument, device,
14 machine or equipment which is capable of transmitting,
15 acquiring, decrypting or receiving any telephonic, electronic,
16 data, Internet access, audio, video, microwave or radio
17 transmissions, signals, communications or [any part of such
18 instrument, device, machine or equipment or any computer
19 circuit, computer chip, electronic mechanism or other component
20 which is capable of facilitating the transmission or reception
21 of telephonic, electronic or radio communications.] services,
22 including the receipt, acquisition, transmission or decryption
23 of all such communications, transmissions, signals or services
24 over any cable television, telephone, satellite, microwave,
25 radio or wireless distribution system or facility, or any part,
26 accessory or components thereof, including any computer circuit,
27 security module, smart card, software, computer chip, electronic
28 mechanism or other component, accessory or part which is capable
29 of facilitating the transmission, decryption, acquisition or
30 reception of all such communications, transmissions, signals or
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1 services.
2 ["Telecommunication service." The meaning given to it in
3 section 3926 (relating to theft of services).
4 "Telecommunication service provider." The meaning given to
5 it in section 3926 (relating to theft of services).
6 "Unlawful telecommunication device." The meaning given to it
7 in section 3926 (relating to theft of services).]
8 "Telecommunication service." The meaning given to it in
9 section 3926 (relating to theft of services) and also any
10 service provided by any radio, telephone, cable television,
11 satellite, microwave or wireless distribution system or
12 facility, including, but not limited to, any and all electronic,
13 data, video, audio, Internet access, telephonic, microwave and
14 radio communications, transmissions, signals and services.
15 "Telecommunication service provider." The meaning given to
16 it in section 3926 (relating to theft of services) and includes
17 any person or entity providing any telecommunication service,
18 including, but not limited to, any person or entity owning or
19 operating any cable television, satellite, telephone, wireless,
20 microwave or radio distribution system or facility.
21 "Unlawful telecommunication device." The meaning given to it
22 in section 3926 (relating to theft of services) and includes any
23 telecommunication device which is capable of, or has been
24 altered, designed, modified, programmed or reprogrammed, alone
25 or in conjunction with another telecommunication device or
26 devices, so as to be capable of facilitating the acquisition,
27 receipt, transmission or decryption of a telecommunication
28 service without the consent or knowledge of the
29 telecommunication service provider. In addition to the examples
30 listed in section 3926, the term includes, but is not limited
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1 to, any device, technology, product, service, equipment,
2 computer software, or component or part thereof, primarily
3 distributed, sold, designed, assembled, manufactured, modified,
4 programmed, reprogrammed or used for the purpose of providing
5 unauthorized decryption of, access to, or acquisition of, any
6 telecommunication service provided by any cable television,
7 satellite, telephone, wireless, microwave or radio distribution
8 system or facility.
9 Section 2. This act shall take effect in 60 days.
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