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
(c)
Prevents another from acquiring information material to the disposition of the
property involved; 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 cable or encrypted video and related audio and
data services intended for viewing on a home television by authorized members
of the public only, who have agreed to pay a fee for the service. Subscription
services include but are not limited to those video services 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 other than
subscription television service provided for a charge or compensation to
facilitate the transmission, transfer, or reception of a telephonic
communication or an electronic communication;
(15)
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)))
(16) "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)))
(17) "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.
(((3)))
(2) 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 or to facilitate the
avoidance of payment of the lawful charge for any ((communications
service of a cable system)) subscription television service, 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.)), 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)
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;
(c)
Kidnapping, as defined in RCW 9A.40.020 and 9A.40.030;
(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.
(c) A
beneficial interest shall be considered to be located where the real property
owned by the trustee is located.
(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 knowingly
and with intent to avoid payment:
(a)
Uses a telecommunication device to obtain telecommunication services without
having entered into a prior agreement with a telecommunication service provider
to pay for the telecommunication services; or
(b)
Possesses a 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 knowingly and with intent to avoid payment or to facilitate avoidance of
payment:
(a)
Manufactures, produces, or assembles a 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 a 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) A
telecommunication device, knowing that the purchaser, lessee, or recipient, or
a third person, intends to use the device to avoid payment or to facilitate
avoidance of payment for telecommunication services; or
(b)
Any material, including data, computer software, or other information and
equipment, knowing that the purchaser, lessee, or recipient, or a third person,
intends to use the material to avoid payment or to facilitate avoidance of
payment for telecommunication services.
(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.
