SENATE AMENDED
PRIOR PRINTER'S NOS. 2660, 2736, 3091 PRINTER'S NO. 3338
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
SENATOR GREENLEAF, JUDICIARY, IN SENATE, AS AMENDED,
APRIL 11, 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 SECTIONS 910 AND 7328(C) of Title 18 <--
12 of the Pennsylvania Consolidated Statutes is ARE amended to <--
13 read:
14 § 910. Manufacture, distribution, USE or possession of devices <--
15 for theft of telecommunications services.
16 (a) Offense defined.--Any person commits an offense if he:
17 (1) makes, distributes, possesses, uses or assembles an
18 unlawful telecommunication device or modifies, alters,
1 programs or reprograms a telecommunication device designed,
2 adapted or which can be used:
3 (i) for commission of a theft of telecommunication
4 service or to acquire or facilitate the acquisition of <--
5 SERVICE OR TO DISRUPT, TRANSMIT, DECRYPT, ACQUIRE OR <--
6 FACILITATE THE DISRUPTION, TRANSMISSION, DECRYPTION OR
7 ACQUISITION OF ANY telecommunication service without the
8 consent of the telecommunication service provider; or
9 (ii) to conceal or to assist another to conceal from
10 any telecommunication service provider or from any lawful
11 authority the existence or place of origin or of
12 destination of any telecommunication; or
13 (2) sells, possesses, distributes, gives or otherwise
14 transfers to another or offers, promotes or advertises for
15 sale any:
16 (i) unlawful telecommunication device, or plans or
17 instructions for making or assembling the same, under
18 circumstances evidencing an intent to use or employ such
19 unlawful telecommunication device, or to allow the same
20 to be used or employed for a purpose described in
21 paragraph (1), or knowing or having reason to believe
22 that the same is intended to be so used, or that the
23 aforesaid plans or instructions are intended to be used
24 for making or assembling such unlawful telecommunication
25 device; or
26 (ii) material, including hardware, cables, tools,
27 data, computer software or other information or
28 equipment, knowing that the purchaser or a third person
29 intends to use the material in the manufacture of an
30 unlawful telecommunication device.
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1 (b) Grading.--[An offense under this section is a felony of
2 the third degree if the person convicted of such offense has
3 been previously convicted of any similar crime in this or any
4 other state or Federal jurisdiction. Otherwise it is a
5 misdemeanor of the first degree.]
6 (1) Except for violations of this section as provided
7 for in paragraph (2) or (3), an offense under this section is
8 a misdemeanor of the first degree.
9 (2) An offense under this section is a felony of the
10 third degree if:
11 (i) the defendant has been convicted previously
12 under this section or convicted of any similar crime in
13 this or any Federal or other state jurisdiction; or
14 (ii) the violation of this section involves at least
15 ten, but not more than 50, unlawful telecommunication
16 devices.
17 (3) An offense under this section is a felony of the
18 second degree if:
19 (i) the defendant has been convicted previously on
20 two or more occasions for offenses under this section or
21 for any similar crime in this or any Federal or other
22 state jurisdiction; or
23 (ii) the violation of this section involves more
24 than 50 unlawful telecommunication devices.
25 (4) For purposes of grading an offense based upon a
26 prior conviction under this section or for any similar crime
27 pursuant to paragraphs (2)(i) and (3)(i), a prior conviction
28 shall consist of convictions upon separate indictments or
29 criminal complaints for offenses under this section or any
30 similar crime in this or any Federal or other state
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1 jurisdiction.
2 (5) As provided for in paragraphs (2)(i) and (3)(i), in
3 grading an offense under this section based upon a prior
4 conviction, the term "any similar crime" shall include, but
5 not be limited to, offenses involving theft of service or
6 fraud, including violations of the Cable Communications
7 Policy Act of 1984 (Public Law 98-549, 98 Stat. 2779).
8 (b.1) Separate offenses.--For purposes of all criminal
9 penalties or fines established for violations of this section,
10 the prohibited activity established herein as it applies to each
11 unlawful telecommunication device shall be deemed a separate
12 offense.
13 (b.2) Fines.--For purposes of imposing fines upon conviction
14 of a defendant for an offense under this section, all fines
15 shall be imposed in accordance with section 1101 (relating to
16 fines).
17 (c) Restitution.--The court [may] shall, in addition to any
18 other sentence authorized by law, sentence a person convicted of
19 violating this section to make restitution under section 1106
20 (relating to restitution for injuries to person or property) or
21 42 Pa.C.S. § 9721(c) (relating to sentencing generally).
22 (c.1) Forfeiture of unlawful telecommunication devices.--
23 Upon conviction of a defendant under this section, the court
24 may, in addition to any other sentence authorized by law, direct
25 that the defendant forfeit any unlawful telecommunication
26 devices in the defendant's possession or control which were
27 involved in the violation for which the defendant was convicted.
28 (c.2) Venue.--An offense under subsection (a) may be deemed
29 to have been committed at either place where the defendant
30 manufactures or assembles an unlawful telecommunication device
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1 or assists others in doing so, or the places where the unlawful
2 telecommunication device is sold or delivered to a purchaser, in
3 accordance with section 102 (relating to territorial
4 applicability). It shall be no defense to a violation of
5 subsection (a) that some of the acts constituting the offense
6 occurred outside of this Commonwealth.
7 (d) Civil action.--[A telecommunication service provider
8 aggrieved by a violation of this section may, in a civil action
9 in any court of competent jurisdiction, obtain appropriate
10 relief, including preliminary and other equitable or declaratory
11 relief, compensatory and punitive damages, reasonable
12 investigation expenses, costs of suit and attorney fees.]
13 (1) Any person aggrieved by a violation of this section
14 may bring a civil action in any court of competent
15 jurisdiction.
16 (2) The court may:
17 (i) grant temporary and final injunctions to prevent
18 or restrain violations of this section;
19 (ii) at any time while an action is pending, order
20 the impounding, on such terms as it deems reasonable, of
21 any unlawful telecommunication device that is in the
22 custody or control of the violator and that the court has
23 reasonable cause to believe was involved in the alleged
24 violation of this section;
25 (iii) award damages as described in subsection
26 (d.1);
27 (iv) in its discretion, award reasonable attorney
28 fees and costs, including, but not limited to, costs for
29 investigation, testing and expert witness fees, to an
30 aggrieved party who prevails; or
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1 (v) as part of a final judgment or decree finding a
2 violation of this section, order the remedial
3 modification or destruction of any unlawful
4 telecommunication device involved in the violation that
5 is in the custody or control of the violator or has been
6 impounded under subparagraph (ii).
7 (d.1) Types of damages recoverable.--Damages awarded by a
8 court under this section shall be computed as either of the
9 following:
10 (1) Upon his election of such damages at any time before
11 final judgment is entered, the complaining party may recover
12 the actual damages suffered by him as a result of the
13 violation of this section and any profits of the violator
14 that are attributable to the violation and are not taken into
15 account in computing the actual damages. In determining the
16 violator's profits, the complaining party shall be required
17 to prove only the violator's gross revenue and the violator
18 shall be required to prove his deductible expenses and the
19 elements of profit attributable to factors other than the
20 violation.
21 (2) Upon election by the complaining party at any time
22 before final judgment is entered, that party may recover, in
23 lieu of actual damages, an award of statutory damages of
24 between $250 to $10,000 for each unlawful telecommunication
25 device involved in the action, with the amount of statutory
26 damages to be determined by the court, not the jury, as the
27 court considers just. In any case where the court finds that
28 any of the violations of this section were committed
29 willfully and for purposes of commercial advantage or private
30 financial gain, the court in its discretion may increase the
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1 award of statutory damages by an amount of not more than
2 $50,000 for each unlawful telecommunication device involved
3 in the action.
4 (3) For purposes of all civil remedies established for
5 violations of this section, the prohibited activity
6 established in this section applies to each unlawful
7 telecommunication device and shall be deemed a separate
8 violation.
9 (e) Definitions.--As used in this section, the following
10 words and phrases shall have the meanings given to them in this
11 subsection:
12 "Manufacture of an unlawful telecommunication device." To
13 produce or assemble an unlawful telecommunication device or to
14 modify, alter, program or reprogram a telecommunication device
15 to be capable of acquiring, DISRUPTING, receiving, transmitting, <--
16 decrypting or facilitating the acquisition, DISRUPTION, receipt, <--
17 transmission or decryption of a telecommunication service
18 without the consent of the telecommunication service provider or
19 to knowingly assist others in those activities.
20 "Telecommunication device." Any type of instrument, device,
21 machine or equipment which is capable of transmitting,
22 acquiring, decrypting or receiving any telephonic, electronic,
23 data, Internet access, audio, video, microwave or radio
24 transmissions, signals, communications or [any part of such
25 instrument, device, machine or equipment or any computer
26 circuit, computer chip, electronic mechanism or other component
27 which is capable of facilitating the transmission or reception
28 of telephonic, electronic or radio communications.] services,
29 including the receipt, acquisition, transmission or decryption
30 of all such communications, transmissions, signals or services
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1 over any cable television, telephone, satellite, microwave,
2 radio or wireless distribution system or facility, or any part,
3 accessory or components thereof, including any computer circuit,
4 security module, smart card, software, computer chip, electronic
5 mechanism or other component, accessory or part which is capable
6 of facilitating the transmission, decryption, acquisition or
7 reception of all such communications, transmissions, signals or
8 services.
9 ["Telecommunication service." The meaning given to it in
10 section 3926 (relating to theft of services).
11 "Telecommunication service provider." The meaning given to
12 it in section 3926 (relating to theft of services).
13 "Unlawful telecommunication device." The meaning given to it
14 in section 3926 (relating to theft of services).]
15 "Telecommunication service." The meaning given to it in
16 section 3926 (relating to theft of services) and also any
17 service provided by any radio, telephone, cable television,
18 satellite, microwave or wireless distribution system or
19 facility, including, but not limited to, any and all electronic,
20 data, video, audio, Internet access, telephonic, microwave and
21 radio communications, transmissions, signals and services.
22 "Telecommunication service provider." The meaning given to
23 it in section 3926 (relating to theft of services) and includes
24 any person or entity providing any telecommunication service,
25 including, but not limited to, any person or entity owning or
26 operating any cable television, satellite, telephone, wireless,
27 microwave or radio distribution system or facility.
28 "Unlawful telecommunication device." The meaning given to it
29 in section 3926 (relating to theft of services) and includes any
30 telecommunication device which is capable of, or has been
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1 altered, designed, modified, programmed or reprogrammed, alone
2 or in conjunction with another telecommunication device or
3 devices, so as to be capable of facilitating the DISRUPTION, <--
4 acquisition, receipt, transmission or decryption of a
5 telecommunication service without the consent or knowledge of
6 the telecommunication service provider. In addition to the
7 examples listed in section 3926, the term includes, but is not
8 limited to, any device, technology, product, service, equipment,
9 computer software, or component or part thereof, primarily
10 distributed, sold, designed, assembled, manufactured, modified,
11 programmed, reprogrammed or used for the purpose of providing
12 unauthorized DISRUPTION OF, decryption of, access to, or <--
13 acquisition of, any telecommunication service provided by any
14 cable television, satellite, telephone, wireless, microwave or
15 radio distribution system or facility.
16 § 7328. OPERATION OF CERTAIN ESTABLISHMENTS PROHIBITED WITHOUT <--
17 LOCAL OPTION.
18 * * *
19 (C) DEFINITION.--AS USED IN THIS SECTION, THE TERM "BOTTLE
20 CLUB" MEANS AN ESTABLISHMENT OPERATED FOR PROFIT OR PECUNIARY
21 GAIN, [WHICH ADMITS PATRONS UPON THE PAYMENT OF A FEE,] WHICH
22 HAS A CAPACITY FOR THE ASSEMBLAGE OF 20 OR MORE PERSONS[,] AND
23 [IN] INTO WHICH ALCOHOLIC LIQUORS, ALCOHOL OR MALT OR BREWED
24 BEVERAGES [ARE NOT LEGALLY SOLD BUT WHERE ALCOHOLIC LIQUORS,
25 ALCOHOL OR MALT OR BREWED BEVERAGES ARE EITHER PROVIDED BY THE
26 OPERATOR OR AGENTS OR EMPLOYEES OF THE OPERATOR FOR CONSUMPTION
27 ON THE PREMISES OR] ARE BROUGHT [INTO OR KEPT AT THE
28 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
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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 Section 2. The definition of "bottle club" in section
5 7329(c) of Title 18 is amended to read:
6 § 7329. Prohibition of certain types of entertainment on bottle
7 club premises.
8 * * *
9 (c) Definitions.--As used in this section, the following
10 words and phrases shall have the meanings given to them in this
11 subsection:
12 "Bottle club." An establishment operated for profit or
13 pecuniary gain, which has a capacity for the assemblage of 20 or
14 more persons and [in] INTO which alcoholic liquors, alcohol or <--
15 malt or brewed beverages [are not legally sold but where
16 alcoholic liquors, alcohol or malt or brewed beverages are
17 either provided by the operator or agents or employees of the
18 operator for consumption on the premises or] are brought [into <--
19 [or kept at] the establishment] by the patrons or persons <--
20 assembling there for use and consumption. The term shall not
21 include a licensee under the act of April 12, 1951 (P.L.90,
22 No.21), known as the Liquor Code, or any organization as set
23 forth in section 6 of the act of December 19, 1990 (P.L.1200,
24 No.202), known as the Solicitation of Funds for Charitable
25 Purposes Act.
26 * * *
27 Section 3. Title 18 is amended by adding sections to read:
28 § 7330. Prohibition of certain practices by telemarketers.
29 (a) Offense defined.--No telemarketer, as defined in section
30 2 of the act of December 4, 1996 (P.L.911, No.147), known as the
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1 Telemarketer Registration Act, shall refuse or otherwise fail to
2 disclose the name, city, state and telephone number of the
3 telemarketer after a recipient of a telephone solicitation by
4 the telemarketer requests such information.
5 (b) Penalty.--A person who violates subsection (a) commits a
6 summary offense and shall, upon conviction, be sentenced to pay
7 a fine of $250.
8 § 7331. Prohibition of certain billing practices of long
9 distance telephone service providers.
10 (a) Offense.--No person shall bill a residential telephone
11 service consumer for more than one month in advance for long
12 distance telephone service fees or charges without the
13 consumer's prior written approval.
14 (b) Penalty.--A person who violates subsection (a) commits a
15 summary offense and shall, upon conviction, be sentenced to pay
16 a fine of $100.
17 Section 4. Section 9121(b) of Title 18 is amended to read:
18 § 9121. General regulations.
19 * * *
20 (b) Dissemination to noncriminal justice agencies and
21 individuals.--Criminal history record information shall be
22 disseminated by a State or local police department to any
23 individual or noncriminal justice agency only upon request.
24 Except as provided in subsection (b.1):
25 (1) A fee may be charged by a State or local police
26 department for each request for criminal history record
27 information by an individual or noncriminal justice agency,
28 except that no fee shall be charged to an individual who
29 makes the request in order to apply to become a volunteer
30 with an affiliate of Big Brothers of America or Big Sisters
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1 of America or to participate as a volunteer in a block parent
2 program, including, but not limited to, the McGruff House
3 Program.
4 (2) Before a State or local police department
5 disseminates criminal history record information to an
6 individual or noncriminal justice agency, it shall extract
7 from the record all notations of arrests, indictments or
8 other information relating to the initiation of criminal
9 proceedings where:
10 (i) three years have elapsed from the date of
11 arrest;
12 (ii) no conviction has occurred; and
13 (iii) no proceedings are pending seeking a
14 conviction.
15 * * *
16 Section 5. This act shall take effect in 60 days.
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