PRINTER'S NO. 687

THE GENERAL ASSEMBLY OF PENNSYLVANIA


SENATE BILL

No. 655 Session of 1995


        INTRODUCED BY ARMSTRONG, TOMLINSON, KASUNIC, AFFLERBACH,
           ANDREZESKI, BAKER, BELAN, BRIGHTBILL, DELP, FISHER, GERLACH,
           HART, HECKLER, HELFRICK, JUBELIRER, LAVALLE, LEMMOND, PUNT,
           RHOADES, SALVATORE, SHUMAKER, TILGHMAN, ULIANA, WAGNER AND
           WENGER, MARCH 2, 1995

        REFERRED TO COMMUNICATIONS AND HIGH TECHNOLOGY, MARCH 2, 1995

                                     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.  Sections 910 and 3926 of Title 18 of the
     8  Pennsylvania Consolidated Statutes are 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 or possesses any instrument, apparatus,
    13     equipment or] makes, distributes, possesses, uses or
    14     assembles an unlawful telecommunication device or modifies,
    15     alters, programs or reprograms a telecommunication device
    16     designed, adapted or which can be used:
    17             (i)  for commission of a theft of


     1         [telecommunications] telecommunication service or to
     2         acquire or facilitate the acquisition of
     3         telecommunication service without the consent of the
     4         telecommunication service provider; or
     5             (ii)  to conceal or to assist another to conceal from
     6         any [supplier of telecommunications] telecommunication
     7         service provider or from any lawful authority the
     8         existence or place of origin or of destination of any
     9         telecommunication; or
    10         (2)  sells, possesses, distributes, gives or otherwise
    11     transfers to another[,] or offers, promotes or advertises for
    12     sale [any instrument, apparatus, equipment or device
    13     described in paragraph (1) of this subsection,] any:
    14             (i)  unlawful telecommunication device, or plans or
    15         instructions for making or assembling the same, under
    16         circumstances evidencing an intent to use or employ such
    17         [instrument, apparatus, equipment or] unlawful
    18         telecommunication device, or to allow the same to be used
    19         or employed for a purpose described in paragraph (1) [of
    20         this subsection], or knowing or having reason to believe
    21         that the same is intended to be so used, or that the
    22         aforesaid plans or instructions are intended to be used
    23         for making or assembling such [instrument, apparatus,
    24         equipment or device.] unlawful telecommunication device;
    25         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
     2  [misdemeanor of the first] felony of the third degree if the
     3  person convicted of such offense has been previously convicted
     4  of any similar crime in this or any other state or Federal
     5  jurisdiction. Otherwise it is a misdemeanor of the [second]
     6  first degree.
     7     (c)  Restitution.--The court may, in addition to any other
     8  sentence authorized by law, sentence a person convicted of
     9  violating this section to make restitution under section 1106
    10  (relating to restitution for injuries to person or property) or
    11  42 Pa.C.S. § 9721(c) (relating to sentencing generally).
    12     (d)  Civil action.--A telecommunication service provider
    13  aggrieved by a violation of this section may, in a civil action
    14  in any court of competent jurisdiction, obtain appropriate
    15  relief, including preliminary and other equitable or declaratory
    16  relief, compensatory and punitive damages, reasonable
    17  investigation expenses, costs of suit and attorney fees.
    18     (e)  Definitions.--As used in this section, the following
    19  words and phrases shall have the meanings given to them in this
    20  subsection:
    21     "Manufacture of an unlawful telecommunication device."  To
    22  produce or assemble an unlawful telecommunication device or to
    23  modify, alter, program or reprogram a telecommunication device
    24  to be capable of acquiring or facilitating the acquisition of
    25  telecommunication service without the consent of the
    26  telecommunication service provider.
    27     "Telecommunication device."  Any type of instrument, device,
    28  machine or equipment which is capable of transmitting or
    29  receiving telephonic, electronic or radio communications, or any
    30  part of such instrument, device, machine or equipment, or any
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     1  computer circuit, computer chip, electronic mechanism or other
     2  component which is capable of facilitating the transmission or
     3  reception of telephonic, electronic or radio communications.
     4     "Telecommunication service."  The meaning given to it in
     5  section 3926 (relating to theft of services).
     6     "Telecommunication service provider."  The meanings given to
     7  it in section 3926 (relating to theft of service).
     8     "Unlawful telecommunication device."  The meaning given to it
     9  in section 3926 (relating to theft of service).
    10  § 3926.  Theft of services.
    11     (a)  Acquisition of services.--
    12         (1)  A person is guilty of theft if he intentionally
    13     obtains services for himself or for another which he knows
    14     are available only for compensation, by deception or threat,
    15     by altering or tampering with the public utility meter or
    16     measuring device by which such services are delivered or by
    17     causing or permitting such altering or tampering, by making
    18     or maintaining any unauthorized connection, whether
    19     physically, electrically or inductively, to a distribution or
    20     transmission line, by attaching or maintaining the attachment
    21     of any unauthorized device to any cable, wire or other
    22     component of an electric, telephone or cable television
    23     system or to a television receiving set connected to a cable
    24     television system, by making or maintaining any unauthorized
    25     modification or alteration to any device installed by a cable
    26     television system, or by false token or other trick or
    27     artifice to avoid payment for the service.
    28         (1.1)  A person is guilty of theft if he intentionally
    29     obtains or attempts to obtain telecommunication service by
    30     the use of an unlawful telecommunication device or without
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     1     the consent of the telecommunication service provider.
     2         [(2)  As used in this section, the word "service"
     3     includes, but is not limited to, labor, professional service,
     4     transportation service, the supplying of hotel
     5     accommodations, restaurant services, entertainment, cable
     6     television service, the supplying of equipment for use, and
     7     the supplying of commodities of a public utility nature such
     8     as gas, electricity, steam and water, and telephone service.
     9     The term "unauthorized" means that payment of full
    10     compensation for service has been avoided, or has been sought
    11     to be avoided, without the consent of the supplier of the
    12     service.]
    13         (3)  A person is not guilty of theft of cable television
    14     service under this section who subscribes to and receives
    15     service through an authorized connection of a television
    16     receiving set at his dwelling and, within his dwelling, makes
    17     an unauthorized connection of an additional television
    18     receiving set or sets or audio system which receives only
    19     basic cable television service obtained through such
    20     authorized connection.
    21         (4)  Where compensation for service is ordinarily paid
    22     immediately upon the rendering of such service, as in the
    23     case of hotels and restaurants, refusal to pay or absconding
    24     without payment or offer to pay gives rise to a presumption
    25     that the service was obtained by deception as to intention to
    26     pay.
    27     (b)  Diversion of services.--A person is guilty of theft if,
    28  having control over the disposition of services of others to
    29  which he is not entitled, he knowingly diverts such services to
    30  his own benefit or to the benefit of another not entitled
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     1  thereto.
     2     (c)  Grading.--
     3         (1)  An offense under this section constitutes a summary
     4     offense when the value of the services obtained or diverted
     5     is less than $50.
     6         (2)  When the value of the services obtained or diverted
     7     is $50 or more, the grading of the offense shall be as
     8     established in section 3903 (relating to grading of theft
     9     offenses).
    10         (3)  Amounts involved in theft of services committed
    11     pursuant to one scheme or course of conduct, whether from the
    12     same person or several persons, may be aggregated in
    13     determining the grade of the offense.
    14     (d)  Inferences.--
    15         (1)  Any person having possession of or access to the
    16     location of a public utility meter or service measuring
    17     device which has been avoided or tampered with so as to
    18     inhibit or prevent the accurate measurement of utility
    19     service and who enjoys the use of or receives the benefit
    20     from the public utility service intended to be metered or
    21     measured by the public utility meter or measuring device so
    22     avoided or tampered with may be reasonably inferred to have
    23     acted to avoid or tamper with the public utility meter or
    24     measuring device with the intent to obtain the public utility
    25     service without making full compensation therefor.
    26         (2)  Any person having possession of or access to the
    27     location of the distribution or transmission lines or other
    28     facilities of a cable television system which have been
    29     tapped, altered or tampered with or to which any unauthorized
    30     connection has been made or to which any unauthorized device
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     1     has been attached or any person having possession of or
     2     access to any device installed by a cable television system
     3     to which an unauthorized modification or alteration has been
     4     made, the result of which tapping, altering, tampering,
     5     connection, attachment or modification is to avoid payment
     6     for all or any part of the cable television service for which
     7     payment is normally required, and who enjoys the use of or
     8     receives the benefit from the cable television service, may
     9     be reasonably inferred to have acted to have tapped, altered,
    10     tampered with, connected or attached to or modified cable
    11     television facilities with the intent to obtain cable
    12     television service without making full compensation therefor.
    13     This inference shall not apply to the act of a subscriber to
    14     cable television service, who receives service through an
    15     authorized connection of a television receiving set at his
    16     dwelling, in making, within his dwelling, an unauthorized
    17     connection of an additional television receiving set or sets
    18     or audio system which receives only basic cable television
    19     service obtained through such authorized connection.
    20     (e)  Sale or transfer of device or plan intended for
    21  acquisition or diversion.--A person is guilty of a misdemeanor
    22  of the third degree if he sells, gives or otherwise transfers to
    23  others or offers, advertises or exposes for sale to others, any
    24  device, kit, plan or other instructional procedure for the
    25  making of such device or a printed circuit, under circumstances
    26  indicating his having knowledge or reason to believe that such
    27  device, kit, plan or instructional procedure is intended for use
    28  by such others for the acquisition or diversion of services as
    29  set forth in subsections (a) and (b).
    30     (f)  Restitution.--The court may, in addition to any other
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     1  sentence authorized by law, sentence a person convicted of
     2  violating this section to make restitution under section 1106
     3  (relating to restitution for injuries to person or property) or
     4  42 Pa.C.S. § 9721(c) (relating to sentencing generally).
     5     (g)  Civil action.--A telecommunication service provider
     6  aggrieved by a violation of this section may, in a civil action
     7  in any court of competent jurisdiction, obtain appropriate
     8  relief, including preliminary and other equitable or declaratory
     9  relief, compensatory and punitive damages, reasonable
    10  investigation expenses, costs of suit and attorney fees.
    11     (h)  Definitions.--As used in this section, the following
    12  words and phrases shall have the meanings given to them in this
    13  subsection:
    14     "Service."  Includes, but is not limited to, labor,
    15  professional service, transportation service, the supplying of
    16  hotel accommodations, restaurant services, entertainment, cable
    17  television service, the supplying of equipment for use, and the
    18  supplying of commodities of a public utility nature such as gas,
    19  electricity, steam and water, and telephone or telecommunication
    20  service. The term "unauthorized" means that payment of full
    21  compensation for service has been avoided, or has been sought to
    22  be avoided, without the consent of the supplier of the service.
    23     "Telephone service" or "telecommunication service."
    24  Includes, but is not limited to, any service provided for a
    25  charge or compensation to facilitate the origination,
    26  transmission, emission or reception of signs, signals, data,
    27  writings, images and sounds or intelligence of any nature by
    28  telephone, including cellular telephones, wire, radio,
    29  electromagnetic, photoelectronic or photo-optical system.
    30     "Telecommunication service provider."  A person or entity
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     1  providing telecommunication service, including, but not limited
     2  to, a cellular, paging or other wireless communications company
     3  or other person or entity which, for a fee, supplies the
     4  facility, cell site, mobile telephone switching office or other
     5  equipment or telecommunication service.
     6     "Unlawful telecommunication device."  Any electronic serial
     7  number, mobile identification number, personal identification
     8  number or any telecommunication device that is capable, or has
     9  been altered, modified, programmed or reprogrammed alone or in
    10  conjunction with another access device or other equipment so as
    11  to be capable, of acquiring or facilitating the acquisition of a
    12  telecommunication service without the consent of the
    13  telecommunication service provider. The term includes, but is
    14  not limited to, phones altered to obtain service without the
    15  consent of the telecommunication service provider, tumbler
    16  phones, counterfeit or clone phones, tumbler microchips,
    17  counterfeit or clone microchips, scanning receivers of wireless
    18  telecommunication service of a telecommunication service
    19  provider and other instruments capable of disguising their
    20  identity or location or of gaining access to a communications
    21  system operated by a telecommunication service provider.
    22     Section 2.  This act shall take effect in 60 days.






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