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.
