Senate Bill sb1078c1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 CS for SB 1078
By the Committee on Criminal Justice; and Senator Atwater
307-2420-03
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"; defining the term "multipurpose
10 device"; prohibiting certain interception,
11 reception, decryption, disruption,
12 transmission, retransmission, or acquisition of
13 access to described communications services and
14 prohibiting assisting others in these acts;
15 prohibiting the advertisement of communications
16 devices for certain unlawful purposes;
17 providing criminal and civil penalties;
18 providing for actual and statutory damages;
19 providing exceptions; providing an effective
20 date.
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Section 812.15, Florida Statutes, is
25 amended to read:
26 812.15 Unauthorized reception of communications cable
27 television services; penalties.--
28 (1) As used in this section, the term:
29 (a) "Cable operator" means a communications service
30 provider who provides some or all of its communications
31 services pursuant to a "cable television franchise" issued by
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 CS for SB 1078
307-2420-03
1 a "franchising authority," as those terms are defined in 47
2 U.S.C. s. 522(9) and (10) (1992) "cable operator" as defined
3 in 47 U.S.C. s. 522(4) (1988).
4 (b) "Cable system" means any communications service
5 network, system, or facility owned or operated by a cable
6 operator "cable system" as defined in 47 U.S.C. s. 522(6)
7 (1988).
8 (c) "Communications device" means any type of
9 electronic mechanism, transmission line or connections and
10 appurtenances thereto, instrument, device, machine, equipment,
11 or software that is capable of intercepting, transmitting,
12 acquiring, decrypting, or receiving any communications
13 service, or any part, accessory, or component thereof,
14 including any computer circuit, splitter, connector, switches,
15 transmission hardware, security module, smart card, software,
16 computer chip, electronic mechanism, or other component,
17 accessory, or part of any communications device which is
18 capable of facilitating the interception, transmission,
19 retransmission, acquisition, decryption, or reception of any
20 communications service.
21 (d) "Communications service" means any service
22 lawfully provided for a charge or compensation by any cable
23 system or by any radio, fiber optic, photooptical,
24 electromagnetic, photoelectronic, satellite, microwave, data
25 transmission, Internet-based, or wireless distribution
26 network, system, or facility, including, but not limited to,
27 any electronic, data, video, audio, Internet access,
28 microwave, and radio communications, transmissions, signals,
29 and services, and any such communications, transmissions,
30 signals, and services lawfully provided for a charge or
31
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 CS for SB 1078
307-2420-03
1 compensation, directly or indirectly by or through any of
2 those networks, systems, or facilities.
3 (e) "Communications service provider" means:
4 1. Any person or entity owning or operating any cable
5 system or any fiber optic, photooptical, electromagnetic,
6 photoelectronic, satellite, wireless, microwave, radio, data
7 transmission, or Internet-based distribution network, system,
8 or facility.
9 2. Any person or entity providing any lawful
10 communications service, whether directly or indirectly, as a
11 reseller or licensee, by or through any such distribution
12 network, system, or facility.
13 (f) "Manufacture, development, or assembly of a
14 communications device" means to make, produce, develop, or
15 assemble a communications device or any part, accessory, or
16 component thereof, or to modify, alter, program, or reprogram
17 any communications device so that it is capable of
18 facilitating the commission of a violation of this section.
19 (g) "Multipurpose device" means any communications
20 device that is capable of more than one function and includes
21 any component thereof.
22 (2)(a) A No person may not knowingly shall intercept,
23 or receive, decrypt, disrupt, transmit, retransmit, or acquire
24 access to or assist in intercepting or receiving any
25 communications service without the express authorization of
26 the offered over a cable system, unless specifically
27 authorized to do so by a cable operator or other
28 communications service provider, or as stated in a contract or
29 may otherwise, with the intent to defraud the cable operator
30 or communications service provider, or to knowingly assist
31 others in doing those acts with the intent to defraud the
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 CS for SB 1078
307-2420-03
1 cable operator or other communications provider be
2 specifically authorized by law. For the purpose of this
3 section, the term "assist others" includes:
4 1. The sale, transfer, license, distribution,
5 deployment, lease, manufacture, development, or assembly of a
6 communications device for the purpose of facilitating the
7 unauthorized receipt, acquisition, interception, disruption,
8 decryption, transmission, retransmission, or access to any
9 communications service offered by a cable operator or any
10 other communications service provider; or
11 2. The sale, transfer, license, distribution,
12 deployment, lease, manufacture, development, or assembly of a
13 communications device for the purpose of defeating or
14 circumventing any effective technology, device, or software,
15 or any component or part thereof, used by a cable operator or
16 other communications service provider to protect any
17 communications service from unauthorized receipt, acquisition,
18 interception, disruption, access, decryption, transmission, or
19 retransmission. in intercepting or receiving" shall include
20 the manufacture of or distribution of equipment intended by
21 the manufacturer or distributor, as the case may be, for
22 unauthorized reception of any communications service offered
23 over a cable system in violation of this section.
24 (b) Any person who willfully violates this subsection
25 commits shall be guilty of a misdemeanor of the first degree,
26 punishable as provided in s. 775.082 or s. 775.083.
27 (3)(a) Any person who willfully violates paragraph
28 (2)(a), paragraph (4)(a), or subsection (5) and who has been
29 previously convicted of any such provision commits shall be
30 guilty of a felony of the third degree, punishable as provided
31 in s. 775.082, s. 775.083, or s. 775.084.
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 CS for SB 1078
307-2420-03
1 (b) Any person who willfully and for purposes of
2 direct or indirect commercial advantage or private financial
3 gain violates paragraph (2)(a), paragraph (4)(a), or
4 subsection (5) commits shall be guilty of a felony of the
5 third degree, punishable as provided in s. 775.082, s.
6 775.083, or s. 775.084.
7 (4)(a) Any person who intentionally possesses a
8 communications device equipment, knowing or having reason to
9 know that the design of such device equipment renders it
10 primarily useful for the purpose of committing, or assisting
11 others in committing, a violation of paragraph (2)(a) commits
12 the unauthorized reception of any communications service
13 offered over a cable system, shall be guilty of a misdemeanor
14 of the first degree, punishable as provided in s. 775.082 or
15 s. 775.083.
16 (b) Any person who intentionally possesses five or
17 more communications devices or pieces of equipment and knows
18 or has reason to know that the design of such devices or
19 pieces of equipment renders them primarily useful for
20 committing, or assisting others in committing, a violation of
21 paragraph (2)(a) commits the unauthorized reception of any
22 communications services offered over a cable system is guilty
23 of a felony of the third degree, punishable as provided in s.
24 775.082, s. 775.083, or s. 775.084.
25 (c) Any person who intentionally possesses fifty or
26 more communications devices or pieces of equipment and knows
27 or has reason to know that the design of such devices or
28 equipment renders them primarily useful for committing, or
29 assisting others in committing, a violation of paragraph
30 (2)(a) commits the unauthorized reception of any
31 communications services offered over a cable system is guilty
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 CS for SB 1078
307-2420-03
1 of a felony of in the second degree, punishable as provided in
2 s. 775.082, s. 775.083, or s. 775.084.
3 (5) It is unlawful for any person to place in any
4 newspaper, magazine, handbill, or other publication, including
5 any electronic medium, any advertisement that, in whole or in
6 part, promotes the sale of a communications device equipment,
7 if the person placing the advertisement knows or has reason to
8 know that the device equipment is designed to be primarily
9 useful for committing, or assisting others in committing, a
10 violation of paragraph (2)(a) the unauthorized reception of
11 any communications service offered over a cable system. Any
12 person who violates this subsection shall be guilty of a
13 misdemeanor of the first degree, punishable as provided in s.
14 775.082 or s. 775.083.
15 (6) All fines shall be imposed as provided in s.
16 775.083 for each communications device involved in the
17 prohibited activity or for each day a defendant is in
18 violation of this section.
19 (7) The court shall, in addition to any other sentence
20 authorized by law, sentence a person convicted of violating
21 this section to make restitution as authorized by law.
22 (8) Upon conviction of a defendant for violating this
23 section, the court may, in addition to any other sentence
24 authorized by law, direct that the defendant forfeit any
25 communications device in the defendant's possession or control
26 which was involved in the violation for which the defendant
27 was convicted.
28 (9) A violation of paragraph (2)(a) may be deemed to
29 have been committed at any place where the defendant
30 manufactures, develops, or assembles any communications
31 devices involved in the violation, or assists others in these
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 CS for SB 1078
307-2420-03
1 acts, or any place where the communications device is sold or
2 delivered to a purchaser or recipient. It is not a defense to
3 a violation of paragraph (2)(a) that some of the acts
4 constituting the violation occurred outside the state.
5 (10)(6)(a) Any person aggrieved by any violation of
6 this section may bring a civil action in a circuit court or in
7 any other court of competent jurisdiction.
8 (b) The court may:
9 1. Grant temporary and final injunctions on such terms
10 as it finds may deem reasonable to prevent or restrain
11 violations of this section in conformity with the principles
12 that govern the granting of injunctive relief from threatened
13 loss or damage in other civil cases, except that a no showing
14 of special or irreparable damages to the person need not shall
15 have to be made.;
16 2. At any time while the action is pending, order the
17 impounding, on reasonable terms, of any communications device
18 that is in the custody or control of the violator and that the
19 court has reasonable cause to believe was involved in the
20 alleged violation of this section and may grant other
21 equitable relief, including the imposition of a constructive
22 trust, as the court considers reasonable and necessary.
23 3.2. Award damages pursuant to paragraphs (c), (d),
24 and (e).; and
25 4.3. Direct the recovery of full costs, including
26 awarding reasonable attorney's fees, to an aggrieved party who
27 prevails.
28 5. As part of a final judgment or decree finding a
29 violation of this section, order the remedial modification or
30 destruction of any communications device, or any other device
31 or equipment, involved in the violation which is in the
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 CS for SB 1078
307-2420-03
1 custody or control of the violator or has been impounded under
2 subparagraph 2.
3 (c) Damages awarded by any court under this section
4 shall be computed in accordance with subparagraph 1. or
5 subparagraph 2. either of the following:
6 1. The party aggrieved may recover the actual damages
7 suffered by him or her as a result of the violation and any
8 profits of the violator that are attributable to the violation
9 which are not taken into account in computing the actual
10 damages.;
11 a. Actual damages include the retail value of all
12 communications services to which the violator had unauthorized
13 access as a result of the violation and the retail value of
14 any communications service illegally available to each person
15 to whom the violator directly or indirectly provided or
16 distributed a communications device. In proving actual
17 damages, the party aggrieved must prove only that the violator
18 manufactured, distributed, or sold a communications device and
19 is not required to prove that any such device was actually
20 used in violation of this section.
21 b. In determining the violator's profits, the party
22 aggrieved must shall be required to prove only the violator's
23 gross revenue, and the violator must is required to prove his
24 or her deductible expenses and the elements of profit
25 attributable to factors other than the violation.; or
26 2. Upon election of such damages at any time before
27 final judgment is entered, the party aggrieved may recover an
28 award of statutory damages for each communications device
29 violation involved in the action, in a sum of not less than
30 $250 or more than $10,000 for each such device, as the court
31 considers just.
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 CS for SB 1078
307-2420-03
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 financial gain, the court in its
4 discretion may increase the award of damages, whether actual
5 or statutory under this section, by an amount of not more than
6 $50,000 for each communications device involved in the action
7 and for each day the defendant is in violation of this section
8 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 (11) This section shall not be construed to impose any
15 criminal or civil liability upon any state or local law
16 enforcement agency; any state or local government agency,
17 municipality, or authority; or any communications service
18 provider unless such entity is acting knowingly and with
19 intent to defraud a communications service provider as defined
20 in this section.
21 (12) A person that manufactures, produces, assembles,
22 designs, sells, distributes, licenses, or develops a
23 multipurpose device shall not be in violation of this section
24 unless that person acts knowingly and with an intent to
25 defraud a communications services provider and the
26 multipurpose device:
27 (a) Is manufactured, developed, assembled, produced,
28 designed, distributed, sold, or licensed for the primary
29 purpose of committing a violation of this section;
30
31
9
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 CS for SB 1078
307-2420-03
1 (b) Has only a limited commercially significant
2 purpose or use other than for the commission of any violation
3 of this section; or
4 (c) Is marketed by that person or another acting in
5 concert with that person with that person's knowledge for the
6 purpose of committing any violation of this section.
7 (13) Nothing in this section shall require that the
8 design of, or design and selection of parts, software code, or
9 components for, a communications device provide for a response
10 to any particular technology, device, or software, or any
11 component or part thereof, used by the provider, owner, or
12 licensee of any communications service or of any data, audio
13 or video programs, or transmissions, to protect any such
14 communications, data, audio or video service, programs, or
15 transmissions from unauthorized receipt, acquisition,
16 interception, access, decryption, disclosure, communication,
17 transmission, or retransmission.
18 Section 2. This act shall take effect October 1, 2003.
19
20
21
22
23
24
25
26
27
28
29
30
31
10
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 CS for SB 1078
307-2420-03
1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 1078
3
4 - Modifies the definition of "communication service" to
indicate the definition includes communications,
5 transmissions, signals, and services provided for a
charge or compensation.
6
- Modifies the definition of "communications service
7 provider" to indicate the definition applies to any
lawful communications service, as specified.
8
- Defines the term "multipurpose device" and provides
9 exceptions, as specified, in which manufacture,
production, assembly, design, sale, distribution,
10 licensing, and development of a multipurpose device do
not violate s. 812.15, F.S.
11
- Broadens the offense of intercepting or receiving
12 communications services and modifies its elements so that
it prohibits a person from knowingly intercepting,
13 receiving, decrypting, disrupting, transmitting,
retransmitting, or acquiring access to any communications
14 service without the express authorization of the cable
operator or other communications service provider as
15 stated in a contract or otherwise, with the intent to
defraud either of them, or knowingly assist others in
16 doing those acts with the intent to defraud either of
them.
17
- Provides that unlawful assistance includes, in part, the
18 sale, transfer, license, distribution, deployment, lease,
manufacture, development, or assembly of a communications
19 device for the purpose of defeating or circumventing any
effective technology, device, or software, or any
20 component or part thereof, as specified.
21 - Provides that all fines shall be imposed as provided in
s. 775.083, F.S., for each communications device involved
22 in the prohibited activity or for each day a defendant is
in violation of s. 812.15, F.S.
23
- Provides that statutory damages may apply for each such
24 device as the court consider just.
25 - Specifies that authorization for a court to increase the
award of damages applies to willful violation for the
26 purpose of financial gain.
27 - Provides an exception from criminal or civil liability
for state and local agencies (including law enforcement
28 agencies), municipalities, authorities, and communication
providers if they do not act knowingly and with intent to
29 defraud a communications service provider.
30 - Provides that s. 812.15, F.S., does not require that the
design of, or design and selection of parts, software
31 code, or components for, a communications device provide
for a response to any particular technology, device, or
11
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2003 CS for SB 1078
307-2420-03
1 software, or any component or part thereof, used by the
provider, owner, or licensee of any communications
2 service or of any data, audio or video programs, or
transmissions to protect any of them from unauthorized
3 receipt, acquisition, interception, access, decryption,
disclosure, communication, transmission, or
4 retransmission.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
12
CODING: Words stricken are deletions; words underlined are additions.