ENROLLED HB 0079, Engrossed 2 2003 Legislature
1	A bill to be entitled
2	An act relating to communications services; amending s.
3	812.15, F.S.; redefining the terms "cable operator" and
4	"cable system"; defining the terms "communications
5	device," "communications service," "communications service
6	provider," and "manufacture, development, or assembly of a
7	communications device"; defining the term "multipurpose
8	device"; prohibiting certain interception, reception,
9	decryption, disruption, transmission, retransmission, or
10	acquisition of access to described communications services
11	and prohibiting assisting others in these acts;
12	prohibiting the advertisement of communications devices
13	for certain unlawful purposes; providing criminal and
14	civil penalties; providing for actual and statutory
15	damages; providing exceptions; providing an effective
16	date.
17
18	Be It Enacted by the Legislature of the State of Florida:
19
20	Section 1. Section 812.15, Florida Statutes, is amended to
21	read:
22	812.15 Unauthorized reception of communicationscable
23	televisionservices; penalties.--
24	(1) As used in this section, the term:
25	(a) "Cable operator" means a communications service
26	provider who provides some or all of its communications services
27	pursuant to a "cable television franchise" issued by a
28	"franchising authority," as those terms are defined in 47 U.S.C.
29	s. 522(9) and (10) (1992)"cable operator" as defined in 47
30	U.S.C. s. 522(4) (1988).
31	(b) "Cable system" means any communications service
32	network, system, or facility owned or operated by a cable
33	operator"cable system" as defined in 47 U.S.C. s. 522(6)
34	(1988).
35	(c) "Communications device" means any type of electronic
36	mechanism, transmission line or connections and appurtenances
37	thereto, instrument, device, machine, equipment, or software
38	that is capable of intercepting, transmitting, acquiring,
39	decrypting, or receiving any communications service, or any
40	part, accessory, or component thereof, including any computer
41	circuit, splitter, connector, switches, transmission hardware,
42	security module, smart card, software, computer chip, electronic
43	mechanism, or other component, accessory, or part of any
44	communications device which is capable of facilitating the
45	interception, transmission, retransmission, acquisition,
46	decryption, or reception of any communications service.
47	(d) "Communications service" means any service lawfully
48	provided for a charge or compensation by any cable system or by
49	any radio, fiber optic, photooptical, electromagnetic,
50	photoelectronic, satellite, microwave, data transmission,
51	Internet-based, or wireless distribution network, system, or
52	facility, including, but not limited to, any electronic, data,
53	video, audio, Internet access, microwave, and radio
54	communications, transmissions, signals, and services, and any
55	such communications, transmissions, signals, and services
56	lawfully provided for a charge or compensation, directly or
57	indirectly by or through any of those networks, systems, or
58	facilities.
59	(e) "Communications service provider" means:
60	1. Any person or entity owning or operating any cable
61	system or any fiber optic, photooptical, electromagnetic,
62	photoelectronic, satellite, wireless, microwave, radio, data
63	transmission, or Internet-based distribution network, system, or
64	facility.
65	2. Any person or entity providing any lawful
66	communications service, whether directly or indirectly, as a
67	reseller or licensee, by or through any such distribution
68	network, system, or facility.
69	(f) "Manufacture, development, or assembly of a
70	communications device" means to make, produce, develop, or
71	assemble a communications device or any part, accessory, or
72	component thereof, or to modify, alter, program, or reprogram
73	any communications device so that it is capable of facilitating
74	the commission of a violation of this section.
75	(g) "Multipurpose device" means any communications device
76	that is capable of more than one function and includes any
77	component thereof.
78	(2)(a) ANo person may not knowinglyshall intercept,or
79	receive, decrypt, disrupt, transmit, retransmit, or acquire
80	access toor assist in intercepting or receivingany
81	communications service without the express authorization of the
82	offered over a cable system, unless specifically authorized to
83	do so by a cable operator or other communications service
84	provider,or as stated in a contract ormay otherwise, with the
85	intent to defraud the cable operator or communications service
86	provider, or to knowingly assist others in doing those acts with
87	the intent to defraud the cable operator or other communications
88	providerbe specifically authorized by law. For the purpose of
89	this section, the term "assist others" includes:
90	1. The sale, transfer, license, distribution, deployment,
91	lease, manufacture, development, or assembly of a communications
92	device for the purpose of facilitating the unauthorized receipt,
93	acquisition, interception, disruption, decryption, transmission,
94	retransmission, or access to any communications service offered
95	by a cable operator or any other communications service
96	provider; or
97	2. The sale, transfer, license, distribution, deployment,
98	lease, manufacture, development, or assembly of a communications
99	device for the purpose of defeating or circumventing any
100	effective technology, device, or software, or any component or
101	part thereof, used by a cable operator or other communications
102	service provider to protect any communications service from
103	unauthorized receipt, acquisition, interception, disruption,
104	access, decryption, transmission, or retransmission.in
105	intercepting or receiving" shall include the manufacture of or
106	distribution of equipment intended by the manufacturer or
107	distributor, as the case may be, for unauthorized reception of
108	any communications service offered over a cable system in
109	violation of this section.
110	(b) Any person who willfully violates this subsection
111	commitsshall be guilty ofa misdemeanor of the first degree,
112	punishable as provided in s. 775.082 or s. 775.083.
113	(3)(a) Any person who willfully violates paragraph (2)(a),
114	paragraph (4)(a), or subsection (5) and who has been previously
115	convicted of any such provision commitsshall be guilty ofa
116	felony of the third degree, punishable as provided in s.
117	775.082, s. 775.083, or s. 775.084.
118	(b) Any person who willfully and for purposes of direct or
119	indirect commercial advantage or private financial gainviolates
120	paragraph (2)(a), paragraph (4)(a), or subsection (5) commits
121	shall be guilty ofa felony of the third degree, punishable as
122	provided in s. 775.082, s. 775.083, or s. 775.084.
123	(4)(a) Any person who intentionally possesses a
124	communications deviceequipment, knowing or having reason to
125	know that the design of such deviceequipmentrenders it
126	primarily useful for the purpose of committing, or assisting
127	others in committing, a violation of paragraph (2)(a) commits
128	the unauthorized reception of any communications service offered
129	over a cable system, shall be guilty ofa misdemeanor of the
130	first degree, punishable as provided in s. 775.082 or s.
131	775.083.
132	(b) Any person who intentionally possesses five or more
133	communications devices or pieces of equipmentand knows or has
134	reason to know that the design of such devices or pieces of
135	equipment renders them primarily useful for committing, or
136	assisting others in committing, a violation of paragraph (2)(a)
137	commitsthe unauthorized reception of any communications
138	services offered over a cable system is guilty ofa felony of
139	the third degree, punishable as provided in s. 775.082, s.
140	775.083, or s. 775.084.
141	(c) Any person who intentionally possesses fifty or more
142	communications devices or pieces of equipmentand knows or has
143	reason to know that the design of such devices or equipment
144	renders them primarily useful for committing, or assisting
145	others in committing, a violation of paragraph (2)(a) commits
146	the unauthorized reception of any communications services
147	offered over a cable system is guilty of a felony ofinthe
148	second degree, punishable as provided in s. 775.082, s. 775.083,
149	or s. 775.084.
150	(5) It is unlawful for any person to place in any
151	newspaper, magazine, handbill, or other publication, including
152	any electronic medium, any advertisement that, in whole or in
153	part, promotes the sale of a communications deviceequipment,if
154	the person placing the advertisement knows or has reason to know
155	that the deviceequipment is designed to be primarily useful for
156	committing, or assisting others in committing, a violation of
157	paragraph (2)(a)the unauthorized reception of any
158	communications service offered over a cable system. Any person
159	who violates this subsection shall be guilty of a misdemeanor of
160	the first degree, punishable as provided in s. 775.082 or s.
161	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 device in the defendant's possession or control
173	which was 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 any place where the defendant manufactures,
177	develops, or assembles any communications devices involved in
178	the violation, or assists others in these acts, or any place
179	where the communications device is sold or delivered to a
180	purchaser or recipient. It is not a 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 findsmay deemreasonable to prevent or restrain violations
189	of this section in conformity with the principles that govern
190	the granting of injunctive relief from threatened loss or damage
191	in other civil cases, except that anoshowing of special or
192	irreparable damages to the person need notshall have tobe
193	made.;
194	2. At any time while the action is pending, order the
195	impounding, on reasonable terms, of any communications device
196	that is in the custody or control of the violator and that the
197	court has reasonable cause to believe was involved in the
198	alleged violation of this section, and may grant other equitable
199	relief, including the imposition of a constructive trust, as the
200	court considers reasonable and 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 device, or any other device or
208	equipment, involved in the violation which is in the custody or
209	control of the violator or has been impounded under subparagraph
210	2.
211	(c) Damages awarded by any court under this section shall
212	be computed in accordance with subparagraph 1. or subparagraph
213	2.either 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 service illegally available to each person to
223	whom the violator directly or indirectly provided or distributed
224	a communications device. In proving actual damages, the party
225	aggrieved must prove only that the violator manufactured,
226	distributed, or sold a communications device and is not required
227	to prove that any such device was actually used in violation of
228	this section.
229	b.In determining the violator's profits, the party
230	aggrieved mustshall be required toprove only the violator's
231	gross revenue, and the violator mustis required toprove his or
232	her deductible expenses and the elements of profit attributable
233	to 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, as the court considers just.
239	(d) In any case in which the court finds that the
240	violation was committed willfully and for purposes of commercial
241	advantage or financial gain, the court in its discretion may
242	increase the award of damages, whether actual or statutory under
243	this section, by an amount of not more than $50,000 for each
244	communications device involved in the action and for each day
245	the defendant is in violation of this sectionviolation.
246	(e) In any case in which the court finds that the violator
247	was not aware and had no reason to believe that his or her acts
248	constituted a violation of this section, the court in its
249	discretion may reduce the award of damages to a sum of not less
250	than $100.
251	(11) This section shall not be construed to impose any
252	criminal or civil liability upon any state or local law
253	enforcement agency; any state or local government agency,
254	municipality, or authority; or any communications service
255	provider unless such entity is acting knowingly and with intent
256	to defraud a communications service provider as defined in this
257	section.
258	(12) A person that manufactures, produces, assembles,
259	designs, sells, distributes, licenses, or develops a
260	multipurpose device shall not be in violation of this section
261	unless that person acts knowingly and with an intent to defraud
262	a communications services provider and the multipurpose device:
263	(a) Is manufactured, developed, assembled, produced,
264	designed, distributed, sold, or licensed for the primary purpose
265	of committing a violation of this section;
266	(b) Has only a limited commercially significant purpose or
267	use other than for the commission of any violation of this
268	section; or
269	(c) Is marketed by that person or another acting in
270	concert with that person with that person's knowledge for the
271	purpose of committing any violation of this section.
272	(13) Nothing in this section shall require that the design
273	of, or design and selection of parts, software code, or
274	components for, a communications device provide for a response
275	to any particular technology, device, or software, or any
276	component or part thereof, used by the provider, owner, or
277	licensee of any communications service or of any data, audio or
278	video programs, or transmissions, to protect any such
279	communications, data, audio or video service, programs, or
280	transmissions from unauthorized receipt, acquisition,
281	interception, access, decryption, disclosure, communication,
282	transmission, or retransmission.
283	Section 2. This act shall take effect October 1, 2003.