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H. 4054
STATUS INFORMATION
General Bill
Sponsors: Rep. Harrison
Document Path: l:\council\bills\nbd\11586djc03.doc
Introduced in the House on April 23, 2003
Currently residing in the House Committee on Judiciary
Summary: Communication Services Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 4/23/2003 House Introduced and read first time HJ-151 4/23/2003 House Referred to Committee on Judiciary HJ-151
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND CHAPTER 11, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY AMENDING ARTICLE 8 SO AS TO PROVIDE NEW DEFINITIONS USED IN THE ARTICLE, PROVIDE FOR CERTAIN CIVIL ACTIONS BY PERSONS AGGRIEVED BY A VIOLATION OF THIS ARTICLE, PROVIDE FOR DAMAGES THAT MAY BE RECOVERED, TO REVISE CERTAIN OFFENSES RELATING TO THEFT OF COMMUNICATION SERVICES, AND TO REVISE CERTAIN PENALTIES FOR VIOLATIONS OF THIS ARTICLE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 8, Chapter 11, Title 16 of the 1976 Code is amended to read:
Section 16-11-810. This article my be cited as the Theft of Cable Television Service Communication Services Act.
Section 16-11-815. As used in this article,: 'cable television service' includes (1) services provided by or through the facilities of any cable television system or closed circuit coaxial cable communication system, and (2) any transmission service used in connection with any cable television system or similar closed circuit coaxial cable communication system.
(1) 'Communication device' means:
(a) Any type of electronic mechanism, transmission lines, cables, or connections and appurtenances thereto, instrument, device, machine, equipment, technology or software which is capable of intercepting, transmitting, retransmitting, acquiring, decrypting or receiving any communication service or the facilitation thereof,
(b) Any component thereof, including any cable modem, computer circuit, splitter, connectors, switches, transmission hardware, security module, point-of-deployment (POD) module, conditional access card, smart card, software, computer chip, electronic mechanism or any component, accessory or part of any communication device which is capable of facilitating the interception, transmission, retransmission, decryption, acquisition or reception of any communication service; and
(c) Any electronic serial number, mobile identification number, personal identification number or any communication device that is capable of acquiring or facilitating the acquisition of a communication service.
(2) 'Communication service' means:
(a) services provided by or through the facilities of any cable television system or closed circuit coaxial cable communication system;
(b) any transmission service used in connection with any cable television system or similar closed circuit coaxial cable communication system; and
(c) any service lawfully provided for a charge or compensation to facilitate the lawful origination, transmission, emission or reception of signs, signals, data, writings, images and sounds or intelligence of any nature by telephone, including cellular or other wireless telephones, wire, broadband, wireless, radio, electromagnetic, photoelectronic or photo-optical systems networks or facilities; and any service lawfully provided for a charge or compensation by any radio, telephone, photo-optical, electromagnetic, photoelectronic, fiber optic, satellite, microwave, data transmission, wireless or Internet-based distribution system, network or facility including, but not limited to, any and all electronic, data, information, video, audio, Internet access, telephonic, microwave and radio communications, transmissions, signals and services, and any such communications, transmissions, signals and services lawfully provided directly or indirectly by or through any of the aforementioned systems, networks or facilities;
(3) 'Communication service provider' means:
(a) any person or entity owning or operating any fiber optic, photo-optical, electromagnetic, photoelectronic, cable television, information, broadband, satellite, Internet-based, telephone, wireless, microwave, data transmission or radio distribution system, network or facility;
(b) any person or entity providing a lawful communication 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 communication service; and
(c) any person or entity providing any lawful communication service directly or indirectly by or through any such distribution systems, networks or facilities.
(4) 'Manufacture, assembly or development of a communication device' means to make, produce, develop or assemble a communication device, or to knowingly assist others in those activities.
(5) 'Manufacture, develop or assemble an unlawful access device' means to make, develop, produce or assemble an unlawful access device or modify, alter, program or reprogram any instrument, device, machine, equipment, technology or software so that it for the purpose of or circumventing any effective technology, device or software used by the provider, owner or licensee of a communication service, or of any data, audio or video programs or transmissions, to protect any such communication, data, audio or video services, programs or transmissions from unauthorized receipt, interception, acquisition, access, decryption, disclosure, communication, transmission or retransmission, or to knowingly assist others in those activities.
(6) 'Multipurpose device' means any communication device that is capable of more than one function, and includes any component thereof.
(7) 'Unlawful access device' means any type of instrument, device, machine, equipment, technology or software which is primarily designed, developed, assembled, manufactured, sold, distributed, possessed, used or offered, promoted or advertised, for the purpose of defeating or circumventing any effective technology, device or software, or any component or part thereof, used by the provider, owner or licensee of any communication service or of any data, audio or video programs or transmissions, to protect any such communication, data, audio or video services, programs or transmissions from unauthorized receipt, acquisition, interception, access, decryption, disclosure, communication, transmission or retransmission.
Section 16-11-820. It is unlawful for any person knowingly and with the intent to defraud a communication service provider to: obtain or use cable television service without the authorization of, or payment to, the operator of the service. It is permissible to infer that the existence of any connection, wire, conductor, or other device whatsoever, between facilities of a cable television system or closed circuit coaxial cable communication system and the premises occupied by the person which makes possible the use of cable television service by any person without that use being specifically authorized by, or compensation paid to, the operator of cable television service indicates that the occupant of the premises has violated this section. If any person pays the amount charged for service provided by the operator of the cable television system, whether or not the amount billed is in conformity with the established charges for the service, the person is not guilty of any offense hereunder by reason of the use of the service.
(1) Possess, use, manufacture, make, develop, assemble, sell, distribute, lease, license, transfer, import into this State or offer, promote or advertise for sale, use or distribution any communication device:
(a) for the unauthorized acquisition or theft of any communication service or to receive, intercept, disrupt, transmit, retransmit, decrypt, acquire or facilitate the receipt, interception, disruption, transmission, retransmission, decryption or acquisition of any communication service without the express consent or express authorization of the communication service provider as stated in a contract or otherwise; or
(b) to conceal or assist another to conceal from any communication service provider or from any lawful authority, the existence or place of origin or of destination of any communication provided that the concealment is for the purpose of committing a violation of subitem (a) above;
(2) Modify, alter, program or reprogram a communication device designed, adapted or used for the purposes prohibited in subsections (1)(a) and (b) above; or
(3) Possess, use, manufacture, assemble, develop, distribute, import into this State, license, transfer, sell, lease or offer, promote or advertise for sale, use, or distribution, or publish any advertisement for any unlawful access device; or
(4) Possess, use, distribute, sell, give, publish, transfer or offer, promote or advertise for sale, use or distribution any:
(a) plans or instructions for making or assembling any communication or unlawful access device, under circumstances evidencing an intent to use or employ the communication or unlawful access device, or to allow the same to be used or employed, for a purpose prohibited by this section, or knowing or having reason to believe that the same is intended to be so used, or that the aforesaid plans or instructions are intended to be used for manufacturing or assembling such communication or unlawful access device for a purpose prohibited by this section; 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, development or assembly of a communication or unlawful access device for a purpose prohibited by this section, or for use in the manufacture, assembly or development of an unlawful access device.
(5) Obtain or use a communication service without the authorization of, or payment to, the communication service provider;
(6) Make or maintain a connection or connections, whether physical, electrical, mechanical, acoustical or by other means, tamper with or otherwise interfere with any cables, wires, components, modems, lockboxes, pedestals, or other devices or equipment of a communication service provider used for the distribution of a communication service without the express consent or express authorization of the communication service provider; or
(7) Assist others in committing any of the acts prohibited by this article.
Section 16-11-825. It is unlawful for any person to make or use a connection not authorized by the operator of a cable television service, whether physical, electrical, mechanical, electronic, induction, or otherwise, or to attach any unauthorized device, or permit the attachment of any unauthorized connection or device to any cable, wire, or other component of a cable television system or service or to a television set connected into the system or service, for the purpose of permitting the reception and viewing of signals which are intended to be received and viewed only upon payment to the operator of the cable television system of the lawful charge therefor.
Section 16-11-830. It is unlawful for any person to assist, instruct, aid or abet, or attempt to assist, instruct, aid or abet any other person in obtaining any cable television service without payment of the lawful charge therefor.
Section 16-11-835. It is unlawful for any person, firm, or corporation to advertise, promote the sale of, sell, rent, install, or use any instrument, apparatus, equipment, or device, or plans or instructions for making or assembling the same, designed or adapted to avoid the lawful charge for any cable television service.
Section 16-11-840. It is unlawful for any person, without the express authorization of a franchised or other duly licensed cable television system, knowingly and wilfully to manufacture, import into this State, distribute, sell, offer to sell, possess for sale, advertise for sale, or install any device, or any plan or kit for a device or for a printed circuit, designed in whole or in part to decode, descramble, or otherwise make intelligible any encoded, scrambled, or other nonstandard signal carried by that cable television system. For the purposes of this section, 'encoded, scrambled, or other nonstandard signal' includes, but is not limited to, any type of signal not intended to produce an intelligible program or service without the aid of a decoder, descrambler, filter, trap, or similar device.
Section 16-11-845. It is unlawful for any person (a) to use a converter or similar device for the reception of intelligible signals without the authorization of the operator of the cable television system, (b) to sell a converter or similar device to any other person with knowledge that the person intends to use it for the reception of intelligible signals without the authorization of the operator of the cable television system or, (c) to install a converter or similar device for any other person with knowledge that the person intends to use it for the reception of intelligible signals without the authorization of the operator of the cable television system. This section does not prohibit the manufacture, distribution, or sale of any television receiver in which a converter has been incorporated by the manufacturer.
Section 16-11-850. Nothing in this article makes it unlawful to receive or capture signals from the air by use of a satellite dish, antenna, or otherwise.
Section 16-11-855. Any person who violates any section of this article is guilty of a misdemeanor and upon conviction for a first offense must be fined not more than two hundred dollars or imprisoned for not more than thirty days and for a second and subsequent offense fined not more than one thousand dollars or imprisoned for not more than one year, or both.
(A) Except as provided in this section:
(1) a person who violates a provision of this article for a first offense is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not more than five hundred dollars or imprisoned for not more than thirty days, or both.
(2) a person who violates a provision of this article for a second or subsequent offense is guilty of a felony and, upon conviction, must be punished by a fine of not more than one thousand dollars or imprisoned for not more than five years.
(3) a person who commits an offense in violation of this article that involves at least five but not more than twenty-five communication or unlawful access devices is guilty of a felony and, upon conviction, must be punished by a fine of not more than one thousand dollars or imprisoned for not more than five years.
(4) a person who commits an offense in violation of this article that involves more than twenty-five communication or unlawful access devices is guilty of a felony and, upon conviction, must be punished by a fine of not more than five thousand dollars or imprisoned for not more than ten years.
(B) A person may be sentenced as for a second or subsequent offense if he has been convicted of a violation of this article or of the same or a similar offense in another jurisdiction, or if he is convicted for a first offense in violation of this article involving at least five, but not more than twenty-five, communication or unlawful access devices.
(C) For purposes of determining punishment for a person convicted of a violation of a provision of this article, 'prior conviction' means a conviction under this article or for a similar offense in another state or federal court upon separate indictments or criminal complaints. 'Similar crime' means an offense involving theft of service or fraud, including violations of the Cable Communications Policy Act of 1984 (Public Law 98-549, 98 Stat. 2779). The entry of a plea of guilty, the forfeiture of bail or bond posted, or the entry of plea of nolo contendre for a violation of this article or a similar offense in another jurisdiction is a conviction for purposes of this article.
(D) For purposes of punishment under this article, a prohibited activity as applied to each communication or unlawful access device is a separate offense. Each day a person is in violation of this article is also a separate offense.
(E) Fines shall be imposed as authorized by law for each day a person is in violation of this article and for each communication or unlawful access device involved in a violation of a provision of this article.
(F) In addition to any other sentence authorized by law, a sentencing court shall require a person convicted of violating this article to make restitution to the victim for the theft of cable service as authorized by law.
(G) Upon conviction of a person for a violation under this article, all instruments, apparatus, equipment, device, plans or instructions belonging to the person convicted or in his possession in violation of this article shall be either destroyed as contraband by the sheriff of the county in which such person was convicted or turned over to the communication service provider in whose service area such instrument, apparatus, device, plan or instruction was seized.
(H) An offense or violation of this article is committed and completed at the place where a person manufactures, develops or assembles a communication or unlawful access device or assists another in doing so, or the place where the communication or unlawful access device is sold or delivered to a purchaser or recipient. It is not a defense to a violation of this article that an act contributing to a violation of this article occurred outside of the State of South Carolina.
Section 16-11-860. (A) In a criminal prosecution or civil action under this article, a jury or trier of fact may infer from proof of the following that a defendant intended to violate this section:
(1) The presence of an unauthorized connection of any kind between the defendant's property or the premises occupied by the defendant, and any network, system or facility owned or operated by a communication service provider; or
(2) The presence on the defendant's property or the premises occupied by the defendant, or in the defendant's possession or control, of any communication device which is connected in such a manner as would permit the unauthorized receipt, interception, acquisition, decryption, transmission or retransmission of a communication service; or
(3) The defendant's possession of five or more communication or unlawful access devices for any purpose prohibited by this section; or
(4) The existence on the defendant's property or the premises occupied by the defendant of any connection, wire conductor, microwave antenna, lockbox key, pedestal key, lockbox tool, or any device whatsoever, or connection in any pedestal or lockbox, which is connected in such a manner as would permit the receipt of a communication service without such service being reported for payment to and specifically authorized by the communication service provider; or
(5) The giving of a false name or identity to a communication service provider in order for the communication service provider to provision a communication service to the defendant's property or the premises occupied by the defendant.
(B) Where a communication service provider notifies the owner or the occupant of the premises of the circumstances described in items (1) through (5) of subsection (A) and the same circumstances are found to exist within a reasonable time thereafter, an inference shall be created that the defendant or owner or occupant of the premises acted wilfully in violation of this article.
Section 16-11-865. (A) A person aggrieved by a violation of this section may bring a civil action in a court of competent jurisdiction. A 'person aggrieved' shall include a communication service provider. The inferences set forth in Section 16-11-860 apply in an action under this article.
(B) For purposes of establishing liability, the entry of a plea of guilty, the forfeiture of any bail or bond posted or the entry of plea of nolo contendre for a violation of this article shall have the same effect as a conviction after trial.
(C) In a civil action brought under this article a court may:
(1) award declaratory relief and other equitable remedies, including preliminary and final injunctions to prevent or restrain violations of this article, without requiring proof that the plaintiff has suffered, or will suffer, actual damages, irreparable harm or lacks an adequate remedy at law;
(2) at any time while an action is pending, order the impounding, on such terms as it deems reasonable, of any communication or unlawful 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 article;
(3) award damages as provided in this section;
(4) 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
(5) as part of a final judgment or decree finding a violation of this section, order the remedial modification or destruction of any communication or unlawful access device, or any other devices or equipment involved in the violation, that is in the custody or control of the violator, or has been impounded under this article.
(D) Damages awarded by a court under this section shall be computed as either of the following:
(1) Upon his election of such damages at any time before final judgment is entered, the complaining party may recover the actual damages suffered by him as a result of the violation of this article and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages. Actual damages include the retail value of any communication services illegally available to those persons to whom the violator directly or indirectly provided or distributed any communication or unlawful access devices. In proving actual damages, the complaining party shall be required to prove only that the violator manufactured, distributed or sold any communication or unlawful access devices, but shall not be required to prove that those devices were actually used in violation of this article. 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
(2) 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 fifteen thousand dollars to ten thousand dollars for each communication or unlawful access device involved in the action, with the amount of statutory damages to be determined by the court, not the jury, as the court considers just.
(E) In a case where the court finds that a violation of this article was committed wilfully and for purposes of commercial advantage or private financial gain, the court may increase the total award of damages awarded by an amount of not more than fifty thousand dollars for each communication or unlawful access device involved in the action and for each day the defendant was in violation of this article.
Section 16-11-870. (A) A person that manufactures, produces, assembles, designs, sells, distributes, licenses or develops a multipurpose device shall not be in violation of this article unless that person acts knowingly and with an intent to defraud a communication service provider and the multipurpose device:
(1) is manufactured, developed, assembled, produced, designed, distributed, sold or licensed for the primary purpose of committing a violation of this article; or
(2) has only a limited commercially significant purpose or use other than as an unlawful access device or for the commission of any other violation of this article; or
(3) is marketed by that person or another acting in concert with that person with that person's knowledge for use as an unlawful access device or for the purpose of committing any other violation of this article.
(B) Nothing in this article shall require that the design of, or design and selection of parts, software code, and/or components for, a communication device provide for a response to any particular technology, device or software, or any component or part thereof, used by the provider, owner or licensee of any communication service or of any data, audio or video programs or transmission, to protect any such communication, data, audio or video service, programs or transmissions from unauthorized receipt, acquisition, interception, access, decryption, disclosure, communication, transmission or retransmission.
(C) This section shall not be construed to impose civil or criminal liability upon any:
(1) state or local law enforcement agency;
(2) state or local government authority, municipality, or agency; or a
(3) communication service provider, unless such entity is acting knowingly and with an intent to defraud a communications service provider as defined in this section. The inferences permitted under Section 16-11-860 shall not apply to establish intent to defraud for purposes of this subsection.
Section 16-11-875. The provisions of this article are severable. If any part of this article is declared invalid or unconstitutional, that declaration shall not affect the part that remains."
SECTION 2. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 3. This act takes effect upon approval by the Governor.
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