HB 0079 2003
1	CHAMBER ACTION
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6	The Committee on Judiciary recommends the following:
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8	Committee Substitute
9	Remove the entire bill and insert:
10	A bill to be entitled
11	An act relating to communications services; amending s.
12	812.15, F.S.; revising definition of "cable operator" and
13	"cable system" and defining "communications device,"
14	"communications service," "communications service
15	provider," and "manufacture, development, or assembly of a
16	communications device"; prohibiting certain interception,
17	reception, decryption, disruption, transmission,
18	retransmission, or acquisition of access to described
19	communications services and prohibiting assisting others
20	in doing so; prohibiting described communications devices
21	for certain purposes and promotion of such devices;
22	providing criminal and civil penalties; providing for
23	actual and statutory damages; exempting described entities
24	under certain circumstances; providing an effective date.
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26	Be It Enacted by the Legislature of the State of Florida:
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28	Section 1. Section 812.15, Florida Statutes, is amended to
29	read:
30	812.15 Unauthorized reception of communicationscable
31	televisionservices; penalties.--
32	(1) As used in this section, the term:
33	(a) "Cable operator" means a communications service
34	provider who provides some or all of its communications services
35	pursuant to a "cable television franchise" issued by a
36	"franchising authority" as those terms are defined in 47 U.S.C.
37	s. 522(9) and (10) (1992)"cable operator" as defined in 47
38	U.S.C. s. 522(4) (1988).
39	(b) "Cable system" means any communications service
40	network, system, or facility owned or operated by a cable
41	operator"cable system" as defined in 47 U.S.C. s. 522(6)
42	(1988).
43	(c) "Communications device" means any type of electronic
44	mechanism, transmission line or connections and appurtenances
45	thereto, instrument, device, machine, equipment, or software
46	which is capable of intercepting, transmitting, acquiring,
47	decrypting, or receiving any communications service, or any
48	part, accessory, or component thereof, including any computer
49	circuit, splitter, connector, switches, transmission hardware,
50	security module, smart card, software, computer chip, electronic
51	mechanism, or other component, accessory, or part of any
52	communications device which is capable of facilitating the
53	interception, transmission, retransmission, acquisition,
54	decryption, or reception of any communications service.
55	(d) "Communications service" means any service lawfully
56	provided for a charge or compensation by any cable system or by
57	any radio, telephone, fiber optic, photo-optical,
58	electromagnetic, photoelectronic, satellite, microwave, data
59	transmission, Internet-based or wireless distribution network,
60	system, or facility, including, but not limited to, any and all
61	electronic, data, video, audio, Internet access, microwave, and
62	radio communications, transmissions, signals, and services, and
63	any such communications, transmissions, signals, and services
64	lawfully provided directly or indirectly by or through any of
65	those networks, systems, or facilities.
66	(e) "Communications service provider" means:
67	1. Any person or entity owning or operating any cable
68	system or any fiber optic, photo-optical, electromagnetic,
69	photoelectronic, satellite, wireless, microwave, radio, data
70	transmission, or Internet-based distribution network, system, or
71	facility.
72	2. Any person or entity providing any communications
73	service, whether directly or indirectly, as a reseller or
74	licensee, by or through any such distribution network, system,
75	or facility.
76	(f) "Manufacture, development, or assembly of a
77	communications device" means to make, produce, develop, or
78	assemble a communications device or any part, accessory, or
79	component thereof, or to modify, alter, program, or reprogram
80	any communications device so that it is capable of facilitating
81	the commission of a violation of this section.
82	(2)(a) No person shall knowingly intercept,or receive,
83	decrypt, disrupt, transmit, retransmit, or acquire access toor
84	assist in intercepting or receivingany communications service
85	offered byover a cable operator or any other communications
86	service provider, or knowingly assist others in doing sosystem,
87	unless specifically authorized to do so by a cable operator or
88	other communications service provider,or as may otherwise be
89	specifically authorized by law. For the purpose of this section,
90	the term to "assist others" in committing any of these acts
91	shall include:
92	1. The sale, transfer, license, distribution, deployment,
93	lease, manufacture, development, or assembly of a communications
94	device for the purpose of facilitating the unauthorized receipt,
95	acquisition, interception, disruption, decryption, transmission,
96	retransmission, or access to any communications service offered
97	by a cable operator or any other communications service
98	provider; or
99	2. The sale, transfer, distribution, deployment, lease,
100	manufacture, development, or assembly of a communications device
101	for the purpose of defeating or circumventing any technology,
102	device, or software, or any component or part thereof, used by a
103	cable operator or other communications service provider to
104	protect any communications service from unauthorized receipt,
105	acquisition, interception, disruption, access, decryption,
106	transmission, or retransmission"assist in intercepting or
107	receiving" shall include the manufacture of or distribution of
108	equipment intended by the manufacturer or distributor, as the
109	case may be, for unauthorized reception of any communications
110	service offered over a cable system in violation of this
111	section.
112	(b) Any person who willfully violates this subsection
113	shall be guilty of a misdemeanor of the first degree, punishable
114	as provided in s. 775.082 or s. 775.083.
115	(3)(a) Any person who willfully violates paragraph(2)(a),
116	paragraph (4)(a), or subsection (5) and who has been previously
117	convicted of any such provision shall be guilty of a felony of
118	the third degree, punishable as provided in s. 775.082, s.
119	775.083, or s. 775.084.
120	(b) Any person who willfully and for purposes of direct or
121	indirect commercial advantage or private financial gainviolates
122	paragraph (2)(a), paragraph(4)(a), or subsection (5) shall be
123	guilty of a felony of the third degree, punishable as provided
124	in s. 775.082, s. 775.083, or s. 775.084.
125	(4)(a) Any person who intentionally possesses a
126	communications deviceequipment, knowing or having reason to
127	know that the design of such deviceequipmentrenders it
128	primarily useful for the purpose of committing or assisting
129	others in committing a violation of paragraph (2)(a)the
130	unauthorized reception of any communications service offered
131	over a cable system, shall be guilty of a misdemeanor of the
132	first degree, punishable as provided in s. 775.082 or s.
133	775.083.
134	(b) Any person who intentionally possesses five or more
135	communications devices or pieces of equipmentand knows or has
136	reason to know that the design of such devices or pieces of
137	equipment renders them primarily useful for committing or
138	assisting others in committing a violation of paragraph(2)(a)
139	the unauthorized reception of any communications services
140	offered over a cable systemis guilty of a felony of the third
141	degree, punishable as provided in s. 775.082, s. 775.083, or s.
142	775.084.
143	(c) Any person who intentionally possesses fifty or more
144	communications devices or pieces of equipmentand knows or has
145	reason to know that the design of such devices or equipment
146	renders them primarily useful for committing or assisting others
147	in committing a violation of paragraph(2)(a)the unauthorized
148	reception of any communications services offered over a cable
149	systemis guilty of a felony in the second degree, punishable as
150	provided in s. 775.082, s. 775.083, or s. 775.084.
151	(5) It is unlawful for any person to place in any
152	newspaper, magazine, handbill, or other publication, including
153	any electronic medium, any advertisement that, in whole or in
154	part, promotes the sale of a communications deviceequipment, if
155	the person placing the advertisement knows or has reason to know
156	that the deviceequipment is designed to be primarily useful for
157	committing or assisting others in committing a violation of
158	paragraph(2)(a)the unauthorized reception of any communications
159	service offered over a cable system. Any person who violates
160	this subsection shall be guilty of a misdemeanor of the first
161	degree, punishable as provided in s. 775.082 or s. 775.083.
162	(6) All fines shall be imposed as provided in s. 775.083
163	for each communications device involved in the prohibited
164	activity or for each day a defendant is in violation of this
165	section.
166	(7) The court shall, in addition to any other sentence
167	authorized by law, sentence a person convicted of violating this
168	section to make restitution as authorized by law.
169	(8) Upon conviction of a defendant for violating this
170	section, the court may, in addition to any other sentence
171	authorized by law, direct that the defendant forfeit any
172	communications devices in the defendant's possession or control
173	which were involved in the violation for which the defendant was
174	convicted.
175	(9) A violation of paragraph (2)(a) may be deemed to have
176	been committed at either place where the defendant manufactures,
177	develops, or assembles any communications devices involved in
178	the violation, or assists others in doing so, or the places
179	where those communications devices are sold or delivered to a
180	purchaser or recipient. It shall be no defense to a violation of
181	paragraph (2)(a) that some of the acts constituting the
182	violation occurred outside the state.
183	(10)(6)(a) Any person aggrieved by any violation of this
184	section may bring a civil action in a circuit court or in any
185	other court of competent jurisdiction.
186	(b) The court may:
187	1. Grant temporary and final injunctions on such terms as
188	it may deem reasonable to prevent or restrain violations of this
189	section in conformity with the principles that govern the
190	granting of injunctive relief from threatened loss or damage in
191	other civil cases, except that no showing of special or
192	irreparable damages to the person shall have to be made.;
193	2. At any time while the action is pending, order the
194	impounding, on such terms as it seems reasonable, of any
195	communications device that is in the custody or control of the
196	violator and that the court has reasonable cause to believe was
197	involved in the alleged violation of this section and grant
198	other equitable relief, including the imposition of a
199	constructive trust, as the court considers reasonable and
200	necessary.
201	3.2.Award damages pursuant to paragraphs (c), (d), and
202	(e).; and
203	4.3.Direct the recovery of full costs, including awarding
204	reasonable attorney's fees, to an aggrieved party who prevails.
205	5. As part of a final judgment or decree finding a
206	violation of this section, order the remedial modification or
207	destruction of any communications devices, or any other devices
208	or equipment, involved in the violation that are in the custody
209	or control of the violator, or have been impounded under
210	subparagraph 2.
211	(c) Damages awarded by any court under this section shall
212	be computed in accordance with either subparagraph 1. or
213	subparagraph 2. of the following:
214	1. The party aggrieved may recover the actual damages
215	suffered by him or her as a result of the violation and any
216	profits of the violator that are attributable to the violation
217	which are not taken into account in computing the actual
218	damages.;
219	a. Actual damages include the retail value of all
220	communications services to which the violator had unauthorized
221	access as a result of the violation and the retail value of any
222	communications services illegally available to those persons to
223	whom the violator directly or indirectly provided or distributed
224	any communications device. In proving actual damages, the party
225	aggrieved shall be required to prove only that the violator
226	manufactured, distributed, or sold any communications devices,
227	but shall not be required to prove that those devices were
228	actually used in violation of this section.
229	b.In determining the violator's profits, the party
230	aggrieved shall be required to prove only the violator's gross
231	revenue, and the violator is required to prove his or her
232	deductible expenses and the elements of profit attributable to
233	factors other than the violation.; or
234	2. Upon election of such damages at any time before final
235	judgment is entered,the party aggrieved may recover an award of
236	statutory damages for each communications deviceviolation
237	involved in the action, in a sum of not less than $250 or more
238	than $10,000 for each such device the defendant is in violation
239	of this section, as the court considers just.
240	(d) In any case in which the court finds that the
241	violation involved the possession or sale of five or more
242	communication devices andwas committed willfully and for
243	purposes of commercial advantage or private financial gain, the
244	court in its discretion may increase the award of damages,
245	whether actual or statutory under this section, by an amount of
246	not more than $50,000 for each communications device involved in
247	the action and for each day the defendant is in violation of
248	this sectionviolation.
249	(e) In any case in which the court finds that the violator
250	was not aware and had no reason to believe that his or her acts
251	constituted a violation of this section, the court in its
252	discretion may reduce the award of damages to a sum of not less
253	than $100.
254	(11) This section shall not apply to any state or local
255	law enforcement agency, any state or local government agency,
256	municipality, or authority, or any provider of communications
257	services, lawfully acting as such in accordance with any other
258	state or federal law.
259	Section 2. This act shall take effect October 1, 2003.