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 -