5820-S

AN ACT Relating to unauthorized use of telecommunication and subscription video services; amending RCW 9A.56.010, 9A.56.220, 9A.56.230, 9A.56.250, and 9A.82.010; adding new sections to chapter 9A.56 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 9A.56.010 and 1987 c 140 s 1 are each amended to read as follows:

The following definitions are applicable in this chapter unless the context otherwise requires:

(1) "Appropriate lost or misdelivered property or services" means obtaining or exerting control over the property or services of another which the actor knows to have been lost or mislaid, or to have been delivered under a mistake as to identity of the recipient or as to the nature or amount of the property;

(2) "By color or aid of deception" means that the deception operated to bring about the obtaining of the property or services; it is not necessary that deception be the sole means of obtaining the property or services;

(3) "Access device" means any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument;

(4) "Deception" occurs when an actor knowingly:

(a) Creates or confirms another's false impression which the actor knows to be false; or

(b) Fails to correct another's impression which the actor previously has created or confirmed; or

(d) Transfers or encumbers property without disclosing a lien, adverse claim, or other legal impediment to the enjoyment of the property, whether that impediment is or is not valid, or is or is not a matter of official record; or

(e) Promises performance which the actor does not intend to perform or knows will not be performed.

(5) "Deprive" in addition to its common meaning means to make unauthorized use or an unauthorized copy of records, information, data, trade secrets, or computer programs;

(6) "Obtain control over" in addition to its common meaning, means:

(a) In relation to property, to bring about a transfer or purported transfer to the obtainer or another of a legally recognized interest in the property; or

(b) In relation to labor or service, to secure performance thereof for the benefits of the obtainer or another;

(7) "Wrongfully obtains" or "exerts unauthorized control" means:

(a) To take the property or services of another;

(b) Having any property or services in one's possession, custody or control as bailee, factor, pledgee, servant, attorney, agent, employee, trustee, executor, administrator, guardian, or officer of any person, estate, association, or corporation, or as a public officer, or person authorized by agreement or competent authority to take or hold such possession, custody, or control, to secrete, withhold, or appropriate the same to his or her own use or to the use of any person other than the true owner or person entitled thereto; or

(c) Having any property or services in one's possession, custody, or control as partner, to secrete, withhold, or appropriate the same to his or her use or to the use of any person other than the true owner or person entitled thereto, where such use is unauthorized by the partnership agreement;

(8) "Owner" means a person, other than the actor, who has possession of or any other interest in the property or services involved, and without whose consent the actor has no authority to exert control over the property or services;

(9) "Receive" includes, but is not limited to, acquiring title, possession, control, or a security interest, or any other interest in the property;

(10) "Services" includes, but is not limited to, labor, professional services, transportation services, electronic computer services, the supplying of hotel accommodations, restaurant services, entertainment, the supplying of equipment for use, and the supplying of commodities of a public utility nature such as gas, electricity, steam, and water;

(11) "Stolen" means obtained by theft, robbery, or extortion;

(12) "Subscription television service" means an audio, video, or data service intended for viewing on home television or monitor by authorized members of the public, only, who pay a periodic fee for the service. Subscription television services include but are not limited to those presently delivered by coaxial cable, fiber optic cable, terrestrial microwave, television broadcast, and satellite transmission;

(13) "Telecommunication device" means (a) any type of instrument, device, machine, or equipment that is capable of transmitting or receiving telephonic or electronic communications; or (b) any part of such an instrument, device, machine, or equipment, or any computer circuit, computer chip, electronic mechanism, or other component, that is capable of facilitating the transmission or reception of telephonic or electronic communications;

(14) "Telecommunication service" includes any service provided for a charge or compensation to facilitate the transmission, transfer, or reception of a telephonic communication or an electronic communication;

(15) "Unlawful telecommunication device" means any telecommunication device that is capable, or has been altered, modified, programmed or reprogrammed, or activated or reactivated so as to be capable, of acquiring, or facilitating the acquisition of, a telecommunications service without the consent of the telecommunication service provider and includes any computer program or data designed or used to create, alter, modify, program, or activate a telecommunication device. Unlawful telecommunication devices include, but are not limited to, cloned telephones, tumbler telephones, tumbler microchips, cloned microchips, and other devices or components capable of disguising their identity or location or of gaining unauthorized access to a communication system operated by a telecommunication service provider;

(16) Value. (a) "Value" means the market value of the property or services at the time and in the approximate area of the criminal act.

(b) Whether or not they have been issued or delivered, written instruments, except those having a readily ascertained market value, shall be evaluated as follows:

(i) The value of an instrument constituting an evidence of debt, such as a check, draft, or promissory note, shall be deemed the amount due or collectible thereon or thereby, that figure ordinarily being the face amount of the indebtedness less any portion thereof which has been satisfied;

(ii) The value of a ticket or equivalent instrument which evidences a right to receive transportation, entertainment, or other service shall be deemed the price stated thereon, if any; and if no price is stated thereon, the value shall be deemed the price of such ticket or equivalent instrument which the issuer charged the general public;

(iii) The value of any other instrument that creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation shall be deemed the greatest amount of economic loss which the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.

(c) Whenever any series of transactions which constitute theft, would, when considered separately, constitute theft in the third degree because of value, and said series of transactions are a part of a common scheme or plan, then the transactions may be aggregated in one count and the sum of the value of all said transactions shall be the value considered in determining the degree of theft involved.

(d) Whenever any person is charged with possessing stolen property and such person has unlawfully in his possession at the same time the stolen property of more than one person, then the stolen property possessed may be aggregated in one count and the sum of the value of all said stolen property shall be the value considered in determining the degree of theft involved.

(e) Property or services having value that cannot be ascertained pursuant to the standards set forth above shall be deemed to be of a value not exceeding two hundred and fifty dollars;

((~~(13)~~)) (17) "Shopping cart" means a basket mounted on wheels or similar container generally used in a retail establishment by a customer for the purpose of transporting goods of any kind;

((~~(14)~~)) (18) "Parking area" means a parking lot or other property provided by retailers for use by a customer for parking an automobile or other vehicle.

Sec. 2. RCW 9A.56.220 and 1989 c 11 s 1 are each amended to read as follows:

(1) A person is guilty of theft of ((~~cable~~)) subscription television services if((:

~~(a)~~)), with intent to avoid payment of the lawful charge ((~~for any communication~~)) of a subscription television service ((~~of a cable system~~)), he or she:

((~~(i) Tampers with the equipment of the cable system, whether by mechanical, electrical, acoustical, or other means; or~~

~~(ii) Knowingly misrepresents a material fact; or~~

~~(iii) Uses any other artifice, trick, deception, code, or other device; and~~

~~(b) He or she wrongfully obtains cable communication services for himself or herself or another.~~

(2) RCW 9A.56.220 through 9A.56.250 do not apply to the interception or receipt by any individual or the assisting (including the manufacture or sale), of such interception or receipt of any satellite-transmitted programming for private use.))

(a) Obtains or attempts to obtain subscription television service from a subscription television service company by trick, artifice, deception, use of a device or decoder, or other fraudulent means without authority from the company providing the service;

(b) Assists or instructs a person in obtaining or attempting to obtain subscription television service without authority of the company providing the service;

(c) Makes or maintains a connection or connections, whether physical, electrical, mechanical, acoustical, or by other means, with cables, wires, components, or other devices used for the distribution of subscription television services without authority from the company providing the services;

(d) Makes or maintains a modification or alteration to a device installed with the authorization of a subscription television service company for the purpose of interception or receiving a program or other service carried by the company that the person is not authorized by the company to receive; or

(e) Possesses without authority a device designed in whole or in part to receive subscription television services offered for sale by the subscription television service company, regardless of whether the program or services are encoded, filtered, scrambled, or otherwise made unintelligible, or to perform or facilitate the performance of any other acts set out in (a) through (d) of this subsection for the reception of subscription television services without authority.

(2) Intent to avoid payment of the lawful charge of a subscription television service is presumed when a person who is not an employee or agent of a subscription television service company:

(a) Has in his or her possession a device not authorized by the subscription television service company that permits reception of subscription television services without payment;

(b) Has installed a connection to the subscription television service system or descrambler or receiving device, or provided instructions or advice on the installations to another, without authority from the subscription television service company;

(c) Has a connection to subscription television services to his or her residence or business after disconnection by the subscription television service company and notification of the disconnection has been provided to the person; or

(d) Has in his or her possession a converter or decoder provided by the subscription television service company that has been tampered with, altered, or modified to allow the reception or interception of programming carried by the subscription television service company without authority to do so.

(3) Theft of ((~~cable~~)) subscription television services is a gross misdemeanor.

Sec. 3. RCW 9A.56.230 and 1985 c 430 s 2 are each amended to read as follows:

(1) A person is guilty of unlawful sale of ((~~cable~~)) subscription television services if, with intent to avoid payment of the lawful charge for any communications service of a cable system, he or she ((offers for sale or otherwise makes available any telecommunications decoder or descrambler that defeats a mechanism of electronic signal encryption, or that restricts delivery of individually addressed switching imposed by the cable system.

~~(2)~~)), without authorization from the subscription television service company:

(a) Publishes or advertises for sale a plan for a device that is designed in whole or in part to receive subscription television or services offered for sale by the subscription television service company, regardless of whether the programming or services are encoded, filtered, scrambled, or otherwise made unintelligible;

(b) Advertises for sale or lease a device or kit for a device designed in whole or in part to receive subscription television services offered for sale by the subscription television service company, regardless of whether the programming or services are encoded, filtered, scrambled, or otherwise made unintelligible; or

(c) Manufactures, imports into the state of Washington, distributes, sells, leases, or offers for sale or lease a device, plan, or kit for a device designed in whole or in part to receive subscription television services offered for sale by the subscription television service company, regardless of whether the programming or services are encoded, filtered, scrambled, or otherwise made unintelligible.

(2) Intent to avoid payment of the lawful charge of a subscription television service is presumed when a person who is not an employee or agent of a subscription television service company:

(a) Has published or advertised for sale a plan for a device designed in whole or in part to receive television or services offered for sale by the subscription television service company and the advertisement states directly or indirectly that the plan will enable one to receive subscription television service without payment to the subscription television service company;

(b) Has advertised devices or kits designed in whole or in part to receive subscription television services offered for sale by the subscription television service company and the advertisement states directly or indirectly that the device or kit will enable one to receive subscription television service without payment to the subscription television service company; or

(c) Has sold, leased, or offered for sale or lease a device, plan, or kit for a device designed in whole or in part to receive subscription television services offered for sale by the subscription television service company and during the course of the transaction for sale or lease states directly or indirectly that the device or kit will enable one to receive subscription television service without payment to the subscription television service company.

(3) Unlawful sale of ((~~cable~~)) subscription television services is a ((~~gross misdemeanor~~)) class C felony.

Sec. 4. RCW 9A.56.250 and 1985 c 430 s 4 are each amended to read as follows:

(1) In addition to the criminal penalties provided in RCW 9A.56.220 and 9A.56.230, there is created a civil cause of action for theft of ((~~cable~~)) subscription television services and for unlawful sale of ((~~cable~~)) subscription television services.

(2) ((~~The prevailing party may recover actual damages, reasonable attorneys' fees, and costs.~~

~~(3)~~)) A person who sustains injury to his or her person, business, or property by an act described in RCW 9A.56.220 or 9A.56.230 may file an action in superior court for recovery of damages and the costs of the suit, including reasonable investigative and attorneys' fees and costs.

(3) Upon finding a violation of RCW 9A.56.220 or 9A.56.230, in addition to the remedies described in this section, the court may impose a civil penalty not exceeding twenty-five thousand dollars.

(4) The superior court may grant temporary and final injunctions on such terms as it deems reasonable to prevent or restrain violations of RCW 9A.56.220 and 9A.56.230.

Sec. 5. RCW 9A.82.010 and 1994 c 218 s 17 are each amended to read as follows:

Unless the context requires the contrary, the definitions in this section apply throughout this chapter.

(1) "Creditor" means a person making an extension of credit or a person claiming by, under, or through a person making an extension of credit.

(2) "Debtor" means a person to whom an extension of credit is made or a person who guarantees the repayment of an extension of credit or in any manner undertakes to indemnify the creditor against loss resulting from the failure of a person to whom an extension is made to repay the same.

(3) "Extortionate extension of credit" means an extension of credit with respect to which it is the understanding of the creditor and the debtor at the time the extension is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person.

(4) "Extortionate means" means the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person.

(5) "To collect an extension of credit" means to induce in any way a person to make repayment thereof.

(6) "To extend credit" means to make or renew a loan or to enter into an agreement, tacit or express, whereby the repayment or satisfaction of a debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or shall be deferred.

(7) "Repayment of an extension of credit" means the repayment, satisfaction, or discharge in whole or in part of a debt or claim, acknowledged or disputed, valid or invalid, resulting from or in connection with that extension of credit.

(8) "Dealer in property" means a person who buys and sells property as a business.

(9) "Stolen property" means property that has been obtained by theft, robbery, or extortion.

(10) "Traffic" means to sell, transfer, distribute, dispense, or otherwise dispose of stolen property to another person, or to buy, receive, possess, or obtain control of stolen property, with intent to sell, transfer, distribute, dispense, or otherwise dispose of the property to another person.

(11) "Control" means the possession of a sufficient interest to permit substantial direction over the affairs of an enterprise.

(12) "Enterprise" includes any individual, sole proprietorship, partnership, corporation, business trust, or other profit or nonprofit legal entity, and includes any union, association, or group of individuals associated in fact although not a legal entity, and both illicit and licit enterprises and governmental and nongovernmental entities.

(13) "Financial institution" means any bank, trust company, savings and loan association, savings bank, mutual savings bank, credit union, or loan company under the jurisdiction of the state or an agency of the United States.

(14) "Criminal profiteering" means any act, including any anticipatory or completed offense, committed for financial gain, that is chargeable or indictable under the laws of the state in which the act occurred and, if the act occurred in a state other than this state, would be chargeable or indictable under the laws of this state had the act occurred in this state and punishable as a felony and by imprisonment for more than one year, regardless of whether the act is charged or indicted, as any of the following:

(a) Murder, as defined in RCW 9A.32.030 and 9A.32.050;

(b) Robbery, as defined in RCW 9A.56.200 and 9A.56.210;

(d) Forgery, as defined in RCW 9A.60.020 and 9A.60.030;

(e) Theft, as defined in RCW 9A.56.030, 9A.56.040, 9A.56.060, and 9A.56.080;

(f) Unlawful sale of subscription television services, as defined in RCW 9A.56.230;

(g) Theft of telecommunication services or unlawful manufacture of a telecommunication device, as defined in sections 6 and 7 of this act;

(h) Child selling or child buying, as defined in RCW 9A.64.030;

((~~(g)~~)) (i) Bribery, as defined in RCW 9A.68.010, 9A.68.020, 9A.68.040, and 9A.68.050;

((~~(h)~~)) (j) Gambling, as defined in RCW 9.46.220 and 9.46.215 and 9.46.217;

((~~(i)~~)) (k) Extortion, as defined in RCW 9A.56.120 and 9A.56.130;

((~~(j)~~)) (l) Extortionate extension of credit, as defined in RCW 9A.82.020;

((~~(k)~~)) (m) Advancing money for use in an extortionate extension of credit, as defined in RCW 9A.82.030;

((~~(l)~~)) (n) Collection of an extortionate extension of credit, as defined in RCW 9A.82.040;

((~~(m)~~)) (o) Collection of an unlawful debt, as defined in RCW 9A.82.045;

((~~(n)~~)) (p) Delivery or manufacture of controlled substances or possession with intent to deliver or manufacture controlled substances under chapter 69.50 RCW;

((~~(o)~~)) (q) Trafficking in stolen property, as defined in RCW 9A.82.050;

((~~(p)~~)) (r) Leading organized crime, as defined in RCW 9A.82.060;

((~~(q)~~)) (s) Money laundering, as defined in RCW 9A.83.020;

((~~(r)~~)) (t) Obstructing criminal investigations or prosecutions in violation of RCW 9A.72.090, 9A.72.100, 9A.72.110, 9A.72.120, 9A.72.130, 9A.76.070, or 9A.76.180;

((~~(s)~~)) (u) Fraud in the purchase or sale of securities, as defined in RCW 21.20.010;

((~~(t)~~)) (v) Promoting pornography, as defined in RCW 9.68.140;

((~~(u)~~)) (w) Sexual exploitation of children, as defined in RCW 9.68A.040, 9.68A.050, and 9.68A.060;

((~~(v)~~)) (x) Promoting prostitution, as defined in RCW 9A.88.070 and 9A.88.080;

((~~(w)~~)) (y) Arson, as defined in RCW 9A.48.020 and 9A.48.030;

((~~(x)~~)) (z) Assault, as defined in RCW 9A.36.011 and 9A.36.021;

((~~(y)~~)) (aa) Assault of a child, as defined in RCW 9A.36.120 and 9A.36.130;

((~~(z)~~)) (bb) A pattern of equity skimming, as defined in RCW 61.34.020; or

((~~(aa)~~)) (cc) Commercial telephone solicitation in violation of RCW 19.158.040(1).

(15) "Pattern of criminal profiteering activity" means engaging in at least three acts of criminal profiteering, one of which occurred after July 1, 1985, and the last of which occurred within five years, excluding any period of imprisonment, after the commission of the earliest act of criminal profiteering. In order to constitute a pattern, the three acts must have the same or similar intent, results, accomplices, principals, victims, or methods of commission, or be otherwise interrelated by distinguishing characteristics including a nexus to the same enterprise, and must not be isolated events. However, in any civil proceedings brought pursuant to RCW 9A.82.100 by any person other than the attorney general or county prosecuting attorney in which one or more acts of fraud in the purchase or sale of securities are asserted as acts of criminal profiteering activity, it is a condition to civil liability under RCW 9A.82.100 that the defendant has been convicted in a criminal proceeding of fraud in the purchase or sale of securities under RCW 21.20.400 or under the laws of another state or of the United States requiring the same elements of proof, but such conviction need not relate to any act or acts asserted as acts of criminal profiteering activity in such civil action under RCW 9A.82.100.

(16) "Records" means any book, paper, writing, record, computer program, or other material.

(17) "Documentary material" means any book, paper, document, writing, drawing, graph, chart, photograph, phonograph record, magnetic tape, computer printout, other data compilation from which information can be obtained or from which information can be translated into usable form, or other tangible item.

(18) "Unlawful debt" means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in the state in full or in part because the debt was incurred or contracted:

(a) In violation of any one of the following:

(i) Chapter 67.16 RCW relating to horse racing;

(ii) Chapter 9.46 RCW relating to gambling;

(b) In a gambling activity in violation of federal law; or

(c) In connection with the business of lending money or a thing of value at a rate that is at least twice the permitted rate under the applicable state or federal law relating to usury.

(19)(a) "Beneficial interest" means:

(i) The interest of a person as a beneficiary under a trust established under Title 11 RCW in which the trustee for the trust holds legal or record title to real property;

(ii) The interest of a person as a beneficiary under any other trust arrangement under which a trustee holds legal or record title to real property for the benefit of the beneficiary; or

(iii) The interest of a person under any other form of express fiduciary arrangement under which one person holds legal or record title to real property for the benefit of the other person.

(b) "Beneficial interest" does not include the interest of a stockholder in a corporation or the interest of a partner in a general partnership or limited partnership.

(20) "Real property" means any real property or interest in real property, including but not limited to a land sale contract, lease, or mortgage of real property.

(21)(a) "Trustee" means:

(i) A person acting as a trustee under a trust established under Title 11 RCW in which the trustee holds legal or record title to real property;

(ii) A person who holds legal or record title to real property in which another person has a beneficial interest; or

(iii) A successor trustee to a person who is a trustee under subsection (21)(a) (i) or (ii) of this section.

(b) "Trustee" does not mean a person appointed or acting as:

(i) A personal representative under Title 11 RCW;

(ii) A trustee of any testamentary trust;

(iii) A trustee of any indenture of trust under which a bond is issued; or

(iv) A trustee under a deed of trust.

NEW SECTION. Sec. 6. A new section is added to chapter 9A.56 RCW to read as follows:

(1) A person is guilty of theft of telecommunication services if he or she:

(a) Uses a telecommunication device to transmit or receive telephonic or electronic telecommunication without having entered into a prior agreement with a telecommunication service provider to pay for the telecommunication services; or

(b) Possesses an unlawful telecommunication device.

(2) Theft of telecommunication services is a class C felony.

NEW SECTION. Sec. 7. A new section is added to chapter 9A.56 RCW to read as follows:

(1) A person is guilty of unlawful manufacture of a telecommunication device if he or she:

(a) Manufactures, produces, or assembles an unlawful telecommunication device;

(b) Modifies, alters, programs, or reprograms a telecommunication device to be capable of acquiring or of facilitating the acquisition of telecommunication service without the consent of the telecommunication service provider; or

(c) Writes, creates, or modifies a computer program that he or she knows is thereby capable of being used to manufacture an unlawful telecommunication device.

(2) Unlawful manufacture of a telecommunication device is a class C felony.

NEW SECTION. Sec. 8. A new section is added to chapter 9A.56 RCW to read as follows:

(1) A person is guilty of unlawful sale of a telecommunication device if he or she sells, leases, exchanges, or offers to sell, lease, or exchange:

(a) An unlawful telecommunication device; or

(b) Any material, including 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.

(2) Unlawful sale of a telecommunication device is a class C felony.

NEW SECTION. Sec. 9. A new section is added to chapter 9A.56 RCW to read as follows:

(1) In addition to the criminal penalties provided in sections 6 through 8 of this act, there is created a civil cause of action for theft of telecommunication services, for unlawful manufacture of a telecommunication device, and for unlawful sale of a telecommunication device.

(2) A person who sustains injury to his or her person, business, or property by an act described in section 6, 7, or 8 of this act may file an action in superior court for recovery of damages and the costs of the suit, including reasonable investigative and attorneys' fees and costs.

(3) Upon finding a violation of section 6, 7, or 8 of this act, in addition to the remedies described in this section, the court may impose a civil penalty not exceeding twenty-five thousand dollars.

(4) The superior court may grant temporary and final injunctions on such terms as it deems reasonable to prevent or restrain violations of sections 6 through 8 of this act.