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