CHAPTER 106

FORMERLY

HOUSE BILL NO. 163

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 11, DELAWARE CODE RELATING TO THEFT AND RELATED OFFENSES AND CIVIL ACTIONS.

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, Chapter 5, Title 11, Delaware Code by striking said section in its entirety and substituting in lieu thereof the following:

"§ 850. Use, Possession, Manufacture, Distribution, and Sale of Unlawful Telecommunication and Access Devices.

(a) Prohibited acts.

A person is guilty of a violation of this section if the person knowingly:

(1) manufactures, assembles, distributes, possesses with intent to distribute, transfers, sells, promotes, offers or advertises for sale, use or distribution any unlawful telecommunication device or modifies, alters, programs or reprograms a telecommunication device:

a. for the unauthorized acquisition or theft of any telecommunication service or to receive, disrupt, transmit, decrypt, acquire or facilitate the receipt, disruption, transmission, decryption or acquisition of any telecommunication service without the express consent or express authorization of the telecommunication service provider; or

b. to conceal, or to assist another 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) manufacturers, assembles, distributes, possesses with intent to distribute, transfers, sells, offers, promotes or advertises for sale, use or distribution any unlawful access device;

(3) prepares, distributes, possesses with intent to distribute, sells, gives, transfers, offers, promotes or advertises for sale, use or distribution:

a. plans or instructions for the manufacture or assembly of an unlawful telecommunication or access or device under circumstances evincing an intent to use or employ the unlawful telecommunication access device, or to allow the unlawful telecommunication or access device to be used, for a purpose prohibited by this section, or knowing or having reason to believe that the unlawful telecommunication or access device is intended to be so used, or that the plan or instruction is intended to be used for the manufacture of assembly of the unlawful telecommunication or access device; or

b. 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 or access device.

(b) Criminal Penalties.

(1) Except as provided for in subsection (2) or (3) below, an offense under this section is an unclassified misdemeanor with a sentence up to 1 year incarceration at Level V, and a fine of up to $10,000 for all violations of this section.

(2) A person shall be guilty of a Class F felony if:

(i) the defendant has been convicted previously under this section or convicted of any similar crime in this or any Federal or other state jurisdiction; or

(ii) the violation of this section involves at least 10, but not more than 50, unlawful telecommunication or access devices.

(3) A person shall be guilty of a Class D felony if:

(i) the defendant has been convicted previously on two or more occasions for offenses under this section or for any similar crime in this or any Federal or other state jurisdiction; or

(ii) the violation of this section involves more than 50 unlawful telecommunication or access devices.

(4) For purposes of grading an offense based upon a prior conviction under this section or for any similar crime pursuant to subsections (2)(i) and (3)(i), a prior conviction shall consist of convictions upon separate indictments or criminal complaints for offenses under this section or any similar crime in this or any Federal or other state jurisdiction.

(5) As provided for in subsections (2)(i) and (3)(i), in grading an offense under this section based upon a prior conviction, the term "any similar crime" shall include, but not be limited to, offenses involving theft of service or fraud, including violations of the Cable Communications Policy Act of 1984 (Public Law 98-549, 98 Stat.2779).

(6) Separate offenses. For purposes of all criminal fines established for violations of this section, the prohibited activity established herein as it applies to each unlawful telecommunication or access device shall be deemed a separate offense.

(7) Fines. For purposes of imposing fines upon conviction of a defendant for an offense under this section, all fines shall be imposed for each unlawful telecommunication or access device involved in the violation.

(8) Restitution. The court shall, 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 § 4106 of this title.

(9) Forfeiture of unlawful telecommunication or access devices. Upon conviction of a defendant under this section, the court may, in addition to any other sentence authorized by law, direct that the defendant forfeit any unlawful telecommunication or access devices in the defendant's possession or control which were involved in the violation for which the defendant was convicted.

(c) Venue.

An offense under this section may be deemed to have been committed at either place where the defendant manufactures or assembles an unlawful telecommunication or access device, or assists others in doing so, or the places where the unlawful telecommunication or access device is sold or delivered to a purchaser or recipient. It shall be no defense to a violation of this section that some of the acts constituting the offense occurred outside of this State.

(d) Civil action.

(1) Any person aggrieved by a violation of this section may bring a civil action in any court of competent jurisdiction.

(2) The court may:

(a) grant preliminary and final injunctions to prevent or restrain violations of this section;

(b) at any time while an action is pending, order the impounding, on such terms as it deems reasonable, of any unlawful telecommunication or access device that is in the custody or control of the violator and that the court has reasonable cause to believe was involved in the alleged violation of this section;

(c) award damages as described in subsection (3) below;

(d) in its discretion, award reasonable attorney fees and costs, including, but not limited to, costs for investigation, testing and expert witness fees, to an aggrieved party who prevails; and

(e) as part of a final judgment or decree finding a violation of this section, order the remedial modification or destruction of any unlawful telecommunication or access device involved in the violation that is in the custody or control of the violator or has been impounded under subsection (b).

(3) Types of damages recoverable. Damages awarded by a court under this section shall be computed as either of the following:

(a) upon his or her election of such damages at any time before final judgment is entered, the complaining party may recover the actual damages suffered by him or her as a result of the violation of this section and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages. In determining the violator's profits, the complaining party shall be required to prove only the violator's gross revenue, and the violator shall be required to prove his deductible expenses and the elements of profit attributable to factors other than the violation; or

(b) upon election by the complaining party at any time before final judgment is entered, that party may recover in lieu of actual damages an award of statutory damages of between $250 to $10,000 for each unlawful telecommunication or access device involved in the action, with the amount of statutory damages to be determined by the court as the court considers just. In any case where the court finds that any of the violations of this section were committed willfully and for purposes of commercial advantage or private financial gain, the court in its discretion may increase the award of statutory damages by an amount of not more than $50,000 for each unlawful telecommunication or access device involved in the action.

(4) For purposes of all civil remedies established for violations of this section, the prohibited activity established in this section applies to each unlawful telecommunication or access device and shall be deemed a separate violation.

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

(1) 'Manufacture or assembly of an unlawful telecommunication device.' To make, produce or assemble an unlawful telecommunication device or to modify, alter, program or reprogram a telecommunication device to be capable of acquiring, disrupting, receiving, transmitting, decrypting or facilitating the acquisition, disruption, receipt, transmission or decryption of a telecommunication service without the express consent or express authorization of the telecommunication service provider, or to knowingly assist others in those activities.

(2) 'Telecommunication device.' Any type of instrument, device, machine, equipment, technology or software which is capable of transmitting, acquiring, decrypting or receiving any telephonic, electronic, data, Internet access, audio, video, microwave or radio transmissions, signals, communications or services, including the receipt, acquisition, transmission or decryption of all such communications, transmissions, signals or services provided by or through any cable television, fiber optic, telephone, satellite, microwave, data transmission, radio, Internet-based or wireless distribution network, system or facility, or any part, accessory or components thereof, including any computer circuit, security module, smart card, software, computer chip, electronic mechanism or other component, accessory or part of any telecommunication device which is capable of facilitating the transmission, decryption, acquisition or reception of all such communications, transmissions, signals or services.

(3) 'Telecommunication service.' Any service provided for a charge or compensation to facilitate the origination, transmission, emission or reception of signs, signals, data, writing, images and sounds or intelligence of any nature by telephone, including cellular telephones, wire, wireless, radio, electromagnetic, photelectronic or photo-optical system, network, facility or technology; and any service provided by any radio, telephone, fiber optic, cable television, satellite, microwave, data transmission, wireless or Internet-based distribution system, network, facility or technology, including, but not limited to, any and all electronic, data, video, audio, Internet access, telephonic, microwave and radio communications, transmissions, signals and services, and any such communications, transmissions, signals and services provided directly or indirectly by or through any of the aforementioned systems, networks, facilities or technologies.

(4) 'Telecommunication service provider.'

(a) A person or entity providing a 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;

(b) any person or entity owning or operating any cable television, satellite, Internet-based, telephone, wireless, microwave, data transmission or radio distribution system, network or facility; and

(c) any person or entity providing any telecommunication service directly or indirectly by or through any such distribution systems, networks or facilities.

(5) 'Unlawful telecommunication device.' Any electronic serial number, mobile identification number, personal identification number or any telecommunication device that is capable of acquiring or facilitating the acquisition of a telecommunication service without the express consent or express authorization of the telecommunication service provider, or that has been altered, modified, programmed or reprogrammed alone or in conjunction with another telecommunication device or other equipment to so acquire or facilitate the unauthorized acquisition of a telecommunication service. 'Unlawful Telecommunication Device' also means:

(a) phones altered to obtain service without the express consent or express authorization of 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 gaining unauthorized access to a telecommunications system, network or facility operated by a telecommunication service provider; and

(b) any telecommunication device which is capable of, or has been altered, designed, modified, programmed or reprogrammed, alone or in conjunction with another telecommunication device, so as to be capable of facilitating the disruption, acquisition, receipt, transmission or decryption of a telecommunication service without the express consent or express authorization of the telecommunication service provider, including, but not limited to, any device, technology, product, service, equipment, computer software, or component or part thereof, primarily distributed, sold, designed, assembled, manufactured, modified, programmed, reprogrammed or used for the purpose of providing the unauthorized receipt of, transmission of, disruption of, decryption of, access to, or acquisition of any telecommunication service provided by any telecommunication service provider.

(6) 'Unlawful access device.' Any type of instrument, device, machine, equipment, technology or software which is primarily designed, assembled, manufactured, sold, distributed, possessed, used or offered, promoted or advertised for the purpose of defeating or circumventing any technology, device or software, or any component or part thereof, used by the provider, owner or licensee of any telecommunication service or of any data, audio or video programs or transmissions, to protect any such telecommunication, data, audio or video services, programs or transmissions from unauthorized receipt, acquisition, access, decryption, disclosure, communication, transmission or re-transmission.

(7) 'Manufacture or assembly of any unlawful access device.' To make, produce or assemble an unlawful access device or modify, alter, program or reprogram any instrument, device, machine, equipment, technology or software so that it is capable of defeating or circumventing any technology, device or software used by the provider, owner or licensee of a telecommunication service, or of any data, audio or video programs or transmissions, to protect any such telecommunication, data, audio or video services, programs or transmissions from unauthorized receipt, acquisition, access, decryption, disclosure, communication, transmission or re-transmission, or to knowingly assist others in those activities."

Approved July 09, 2001