CHAPTER 475

FORMERLY

SENATE BILL NO. 333

AS AMENDED BY SENATE AMENDMENT NOS. 3 AND 4

AND HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 5, TITLE 11 OF THE DELAWARE CODE RELATING TO CRIMES RELATING TO TELECOMMUNICATION SERVICES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend §850, Subchapter III, Chapter 5, Title 11, Delaware Code, by striking said section in its entirety and substituting in lieu thereof the following:

"§850. Possession of or Dealing in a Device for Unlawfully Taking Telecommunication Services; Unclassified Misdemeanor or Class G Felony.

(a) A person is guilty of possession of or dealing in a device for unlawfully taking telecommunication services if the person, under circumstances evidencing an intent to use or employ such device, or to allow the same to be used or employed, with the intent specified in § 841 of this title, or knowing or having reason to believe that the same is intended to be so used.

(1) makes, possesses, distributes, uses, assembles, sells, advertises for sale, transfers or gives any unlawful telecommunications device or modifies, alters, programs or reprograms a telecommunications device designed, adapted or which can be used:

(i) For the commission of an unlawful taking of telecommunication service or to acquire or facilitate the unlawful acquisition of telecommunication service; or

(ii) To conceal from any telecommunication service provider, or from any lawful authority, the existence or place of origin or destination, or the originating and receiving telephone numbers, of any telecommunication under circumstances evincing an intent to use the same in the commission of any offense.

(2) sells. possesses, distributes, gives or otherwise transfers to another or offers. promotes or advertises for sale any:

(i) unlawful telecommunication device, or plans or instructions for manufacturing, making or assembly the same; or

(ii) material, including hardware, cables, tools, data, computer software or other information or equipment, knowing that the purchaser or a third person intends to use the material in the manufacture of an unlawful telecommunication device.

Possession of or dealing in a device for unlawfully taking telecommunication services is an unclassified misdemeanor with a sentence up to one year incarceration at Level V and such line up to $10.000.00, restitution or other conditions as the Court deems appropriate; provided, however, if the offense involves the sale, manufacture or distribution of live or more unlawful telecommunication devices or the person knowingly possesses live or more unlawful telecommunication devices, he shall be guilty of a Class G felony.

(b) Restitution. The court may, in addition to any other sentence authorized by law, sentence a person convicted of violating this section to make restitution in the manner provided in Section 4106 of this title.

(c) Civil Action. A telecommunication service provider aggrieved by a violation of this section may, in a civil action in any court of competent jurisdiction, obtain appropriate relief, including preliminary and other equitable or declaratory relief, compensatory and punitive damages, reasonable investigation expenses, costs of suit and attorney fees.

(d) Definitions. As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

(1) "Manufacture of an unlawful telecommunication device." To produce or assemble an unlawful telecommunication device or to modify, alter, program or reprogram a telecommunication device to be capable of unlawfully acquiring or facilitating the acquisition of telecommunication service.

(2) "Telecommunication device." Any type of instrument, device, machine or equipment which is capable of transmitting or receiving telephonic, electronic or radio communications, or any part of such instrument, device, machine or equipment, or any computer circuit, computer chip, electronic mechanism or other component which is capable of facilitating the transmission or reception of telephonic, electronic or radio communications.

(3) "Telephone service" or "telecommunication service." Includes, but is not limited to, any service provided for a charge or compensation to facilitate the origination, transmission, emission or reception of signs, signals, data, writings, images and sounds or intelligence of any nature by telephone, including cellular telephones, wire, wireless, radio, electromagnetic, photelectronic or photo-optical system.

(4) "Telecommunication service provider." A person or entity providing telecommunication service, whether directly or indirectly as a reseller, including, but not limited to, a cellular, paging or other wireless communications company or other person or entity which. for a fee, supplies the facility, cell site, mobile telephone switching office or other equipment or telecommunication service.

(2) "Unlawful telecommunication device." Any electronic serial number, mobile identification number, personal identification number or any telecommunication device that is capable of unlawfully acquiring or facilitating the acquisition of a telecommunication service or that has been altered, modified, programmed or reprogrammed alone or in conjunction with another access device or other equipment to so acquire or facilitate. "Unlawful Telecommunication Device" includes, but is not limited to, phones altered to unlawfully obtain service from the telecommunication service provider, tumbler phones. counterfeit or clone phones, tumbler microchips, counterfeit or clone microchips, and other instruments capable of disguising their identity or location or of unlawfully gaining access to a communications system operated by a telecommunication service provider."

Section 2. This Act shall become effective 60 days after enactment.

Approved July 10, 1996