Senate Bill sb1078

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003                                  SB 1078

    By Senator Atwater





    25-597-03

  1                      A bill to be entitled

  2         An act relating to communications services;

  3         amending s. 812.15, F.S.; redefining the terms

  4         "cable operator" and "cable system"; defining

  5         the terms "communications device,"

  6         "communications service," "communications

  7         service provider," and "manufacture,

  8         development, or assembly of a communications

  9         device"; prohibiting certain interception,

10         reception, decryption, disruption,

11         transmission, retransmission, or acquisition of

12         access to described communications services and

13         prohibiting assisting others in these acts;

14         prohibiting the advertisement of communications

15         devices for certain unlawful purposes;

16         providing criminal and civil penalties;

17         providing for actual and statutory damages;

18         providing an effective date.

19

20  Be It Enacted by the Legislature of the State of Florida:

21

22         Section 1.  Section 812.15, Florida Statutes, is

23  amended to read:

24         812.15  Unauthorized reception of communications cable

25  television services; penalties.--

26         (1)  As used in this section, the term:

27         (a)  "Cable operator" means a communications service

28  provider who provides some or all of its communications

29  services pursuant to a "cable television franchise" issued by

30  a "franchising authority," as those terms are defined in 47

31

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                                  SB 1078
    25-597-03




  1  U.S.C. s. 522(9) and (10) (1992) "cable operator" as defined

  2  in 47 U.S.C. s. 522(4) (1988).

  3         (b)  "Cable system" means any communications service

  4  network, system, or facility owned or operated by a cable

  5  operator "cable system" as defined in 47 U.S.C. s. 522(6)

  6  (1988).

  7         (c)  "Communications device" means any type of

  8  electronic mechanism, transmission line or connections and

  9  appurtenances thereto, instrument, device, machine, equipment,

10  or software that is capable of intercepting, transmitting,

11  acquiring, decrypting, or receiving any communications

12  service, or any part, accessory, or component thereof,

13  including any computer circuit, splitter, connector, switches,

14  transmission hardware, security module, smart card, software,

15  computer chip, electronic mechanism, or other component,

16  accessory, or part of any communications device which is

17  capable of facilitating the interception, transmission,

18  retransmission, acquisition, decryption, or reception of any

19  communications service.

20         (d)  "Communications service" means any service

21  lawfully provided for a charge or compensation by any cable

22  system or by any radio, fiber optic, photooptical,

23  electromagnetic, photoelectronic, satellite, microwave, data

24  transmission, Internet-based, or wireless distribution

25  network, system, or facility, including, but not limited to,

26  any electronic, data, video, audio, Internet access,

27  microwave, and radio communications, transmissions, signals,

28  and services, and any such communications, transmissions,

29  signals, and services lawfully provided directly or indirectly

30  by or through any of those networks, systems, or facilities.

31         (e)  "Communications service provider" means:

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                                  SB 1078
    25-597-03




  1         1.  Any person or entity owning or operating any cable

  2  system or any fiber optic, photooptical, electromagnetic,

  3  photoelectronic, satellite, wireless, microwave, radio, data

  4  transmission, or Internet-based distribution network, system,

  5  or facility.

  6         2.  Any person or entity providing any communications

  7  service, whether directly or indirectly, as a reseller or

  8  licensee, by or through any such distribution network, system,

  9  or facility.

10         (f)  "Manufacture, development, or assembly of a

11  communications device" means to make, produce, develop, or

12  assemble a communications device or any part, accessory, or

13  component thereof, or to modify, alter, program, or reprogram

14  any communications device so that it is capable of

15  facilitating the commission of a violation of this section.

16         (2)(a)  A No person may not knowingly shall intercept,

17  or receive, decrypt, disrupt, transmit, retransmit, or acquire

18  access to or assist in intercepting or receiving any

19  communications service offered by over a cable operator or any

20  other communications service provider, or knowingly assist

21  others in those acts system, unless specifically authorized to

22  do so by a cable operator or other communications service

23  provider, or as may otherwise be specifically authorized by

24  law. For the purpose of this section, the term "assist others"

25  in committing any of these acts includes:

26         1.  The sale, transfer, license, distribution,

27  deployment, lease, manufacture, development, or assembly of a

28  communications device for the purpose of facilitating the

29  unauthorized receipt, acquisition, interception, disruption,

30  decryption, transmission, retransmission, or access to any

31

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                                  SB 1078
    25-597-03




  1  communications service offered by a cable operator or any

  2  other communications service provider; or

  3         2.  The sale, transfer, license, distribution,

  4  deployment, lease, manufacture, development, or assembly of a

  5  communications device for the purpose of defeating or

  6  circumventing any technology, device, or software, or any

  7  component or part thereof, used by a cable operator or other

  8  communications service provider to protect any communications

  9  service from unauthorized receipt, acquisition, interception,

10  disruption, access, decryption, transmission, or

11  retransmission. in intercepting or receiving" shall include

12  the manufacture of or distribution of equipment intended by

13  the manufacturer or distributor, as the case may be, for

14  unauthorized reception of any communications service offered

15  over a cable system in violation of this section.

16         (b)  Any person who willfully violates this subsection

17  commits shall be guilty of a misdemeanor of the first degree,

18  punishable as provided in s. 775.082 or s. 775.083.

19         (3)(a)  Any person who willfully violates paragraph

20  (2)(a), paragraph (4)(a), or subsection (5) and who has been

21  previously convicted of any such provision commits shall be

22  guilty of a felony of the third degree, punishable as provided

23  in s. 775.082, s. 775.083, or s. 775.084.

24         (b)  Any person who willfully and for purposes of

25  direct or indirect commercial advantage or private financial

26  gain violates paragraph (2)(a), paragraph (4)(a), or

27  subsection (5) commits shall be guilty of a felony of the

28  third degree, punishable as provided in s. 775.082, s.

29  775.083, or s. 775.084.

30         (4)(a)  Any person who intentionally possesses a

31  communications device equipment, knowing or having reason to

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                                  SB 1078
    25-597-03




  1  know that the design of such device equipment renders it

  2  primarily useful for the purpose of committing, or assisting

  3  others in committing, a violation of paragraph (2)(a) commits

  4  the unauthorized reception of any communications service

  5  offered over a cable system, shall be guilty of a misdemeanor

  6  of the first degree, punishable as provided in s. 775.082 or

  7  s. 775.083.

  8         (b)  Any person who intentionally possesses five or

  9  more communications devices or pieces of equipment and knows

10  or has reason to know that the design of such devices or

11  pieces of equipment renders them primarily useful for

12  committing, or assisting others in committing, a violation of

13  paragraph (2)(a) commits the unauthorized reception of any

14  communications services offered over a cable system is guilty

15  of a felony of the third degree, punishable as provided in s.

16  775.082, s. 775.083, or s. 775.084.

17         (c)  Any person who intentionally possesses fifty or

18  more communications devices or pieces of equipment and knows

19  or has reason to know that the design of such devices or

20  equipment renders them primarily useful for committing, or

21  assisting others in committing, a violation of paragraph

22  (2)(a) commits the unauthorized reception of any

23  communications services offered over a cable system is guilty

24  of a felony of in the second degree, punishable as provided in

25  s. 775.082, s. 775.083, or s. 775.084.

26         (5)  It is unlawful for any person to place in any

27  newspaper, magazine, handbill, or other publication, including

28  any electronic medium, any advertisement that, in whole or in

29  part, promotes the sale of a communications device equipment,

30  if the person placing the advertisement knows or has reason to

31  know that the device equipment is designed to be primarily

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                                  SB 1078
    25-597-03




  1  useful for committing, or assisting others in committing, a

  2  violation of paragraph (2)(a) the unauthorized reception of

  3  any communications service offered over a cable system. Any

  4  person who violates this subsection shall be guilty of a

  5  misdemeanor of the first degree, punishable as provided in s.

  6  775.082 or s. 775.083.

  7         (6)  For purposes of all criminal penalties established

  8  for violations of this section, each communications device

  9  involved in the prohibited activity constitutes a separate

10  violation of this section. All fines shall be imposed as

11  authorized by law for each such communications device and for

12  each day a defendant is in violation of this section.

13         (7)  The court shall, in addition to any other sentence

14  authorized by law, sentence a person convicted of violating

15  this section to make restitution as authorized by law.

16         (8)  Upon conviction of a defendant for violating this

17  section, the court may, in addition to any other sentence

18  authorized by law, direct that the defendant forfeit any

19  communications device in the defendant's possession or control

20  which was involved in the violation for which the defendant

21  was convicted.

22         (9)  A violation of paragraph (2)(a) may be deemed to

23  have been committed at any place where the defendant

24  manufactures, develops, or assembles any communications

25  devices involved in the violation, or assists others in these

26  acts, or any place where the communications device is sold or

27  delivered to a purchaser or recipient. It is not a defense to

28  a violation of paragraph (2)(a) that some of the acts

29  constituting the violation occurred outside the state.

30

31

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                                  SB 1078
    25-597-03




  1         (10)(6)(a)  Any person aggrieved by any violation of

  2  this section may bring a civil action in a circuit court or in

  3  any other court of competent jurisdiction.

  4         (b)  The court may:

  5         1.  Grant temporary and final injunctions on such terms

  6  as it finds may deem reasonable to prevent or restrain

  7  violations of this section in conformity with the principles

  8  that govern the granting of injunctive relief from threatened

  9  loss or damage in other civil cases, except that a no showing

10  of special or irreparable damages to the person need not shall

11  have to be made.;

12         2.  At any time while the action is pending, order the

13  impounding, on reasonable terms, of any communications device

14  that is in the custody or control of the violator and that the

15  court has reasonable cause to believe was involved in the

16  alleged violation of this section and may grant other

17  equitable relief, including the imposition of a constructive

18  trust, as the court considers reasonable and necessary.

19         3.2.  Award damages pursuant to paragraphs (c), (d),

20  and (e).; and

21         4.3.  Direct the recovery of full costs, including

22  awarding reasonable attorney's fees, to an aggrieved party who

23  prevails.

24         5.  As part of a final judgment or decree finding a

25  violation of this section, order the remedial modification or

26  destruction of any communications device, or any other device

27  or equipment, involved in the violation which is in the

28  custody or control of the violator or has been impounded under

29  subparagraph 2.

30

31

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                                  SB 1078
    25-597-03




  1         (c)  Damages awarded by any court under this section

  2  shall be computed in accordance with subparagraph 1. or

  3  subparagraph 2. either of the following:

  4         1.  The party aggrieved may recover the actual damages

  5  suffered by him or her as a result of the violation and any

  6  profits of the violator that are attributable to the violation

  7  which are not taken into account in computing the actual

  8  damages.;

  9         a.  Actual damages include the retail value of all

10  communications services to which the violator had unauthorized

11  access as a result of the violation and the retail value of

12  any communications service illegally available to each person

13  to whom the violator directly or indirectly provided or

14  distributed a communications device. In proving actual

15  damages, the party aggrieved must prove only that the violator

16  manufactured, distributed, or sold a communications device and

17  is not required to prove that any such device was actually

18  used in violation of this section.

19         b. In determining the violator's profits, the party

20  aggrieved must shall be required to prove only the violator's

21  gross revenue, and the violator must is required to prove his

22  or her deductible expenses and the elements of profit

23  attributable to factors other than the violation.; or

24         2.  Upon election of such damages at any time before

25  final judgment is entered, the party aggrieved may recover an

26  award of statutory damages for each communications device

27  violation involved in the action, in a sum of not less than

28  $1,500 $250 or more than $10,000 for each such device and for

29  each day the defendant is in violation of this section, as the

30  court considers just.

31

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                                  SB 1078
    25-597-03




  1         (d)  In any case in which the court finds that the

  2  violation was committed willfully and for purposes of

  3  commercial advantage or private financial gain, the court in

  4  its discretion may increase the award of damages, whether

  5  actual or statutory under this section, by an amount of not

  6  more than $50,000 for each communications device involved in

  7  the action and for each day the defendant is in violation of

  8  this section violation.

  9         (e)  In any case in which the court finds that the

10  violator was not aware and had no reason to believe that his

11  or her acts constituted a violation of this section, the court

12  in its discretion may reduce the award of damages to a sum of

13  not less than $100.

14         Section 2.  This act shall take effect October 1, 2003.

15

16            *****************************************

17                          SENATE SUMMARY

18    Revises a law prohibiting the unauthorized reception of
      communications services. Prohibits the interception,
19    reception, decryption, disruption, transmission,
      retransmission, or acquisition of access to certain
20    communications services and prohibits assisting others in
      these acts. Provides criminal and civil penalties and
21    provides for actual and statutory damages. (See bill for
      details.)
22

23

24

25

26

27

28

29

30

31

                                  9

CODING: Words stricken are deletions; words underlined are additions.