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2003 SESSION


CHAPTER 354
An Act to amend and reenact §§ 18.2-187.1, 18.2-190.1 through 18.2-190.5, 18.2-190.7 and 18.2-190.8 of the Code of Virginia, relating to offenses involving electronic communications devices.
[H 1931]
Approved March 16, 2003

Be it enacted by the General Assembly of Virginia:

1. That §§ 18.2-187.1, 18.2-190.1 through 18.2-190.5, 18.2-190.7 and 18.2-190.8 of the Code of Virginia are amended and reenacted as follows:

§ 18.2-187.1. Obtaining or attempting to obtain oil, electric, gas, water, telephone, telegraph, cable television or electronic communication service without payment; penalty; civil liability.

A. It shall be unlawful for any person knowingly, with the intent to defraud, to obtain or attempt to obtain, for himself or for another, oil, electric, gas, water, telephone, telegraph, cable television or telecommunication electronic communication service by the use of any false information, or in any case where such service has been disconnected by the supplier and notice of disconnection has been given.

B. It shall be unlawful for any person to obtain or attempt to obtain oil, electric, gas, water, telephone, telegraph, cable television or telecommunication electronic communication service by the use of any scheme, device, means or method, or by a false application for service with intent to avoid payment of lawful charges therefor.

B1. It shall be unlawful for any person to obtain, or attempt to obtain, telecommunication electronic communication service as defined in § 18.2-190.1 by the use of an unlawful telecommunication electronic communication device as defined in § 18.2-190.1.

C. The word "notice" as used in subsection A shall be notice given in writing to the person to whom the service was assigned. The sending of a notice in writing by registered or certified mail in the United States mail, duly stamped and addressed to such person at his last known address, requiring delivery to the addressee only with return receipt requested, and the actual signing of the receipt for such mail by the addressee, shall be prima facie evidence that such notice was duly received.

D. Any person who violates any provisions of this section, if the value of service, credit or benefit procured is $200 or more, shall be guilty of a Class 6 felony; or if the value is less than $200, shall be guilty of a Class 1 misdemeanor. In addition, the court may order restitution for the value of the services unlawfully used and for all costs. Such costs shall be limited to actual expenses, including the base wages of employees acting as witnesses for the Commonwealth, and suit costs. However, the total amount of allowable costs granted hereunder shall not exceed $250, excluding the value of the service.

E. Any party providing oil, electric, gas, water, telephone, telegraph, cable television or telecommunication electronic communication service who is aggrieved by a violation of this section may, in a civil proceeding in any court of competent jurisdiction, seek both injunctive and equitable relief, and an award of damages, including attorney's fees and costs. In addition to any other remedy provided by law, the party aggrieved may recover an award of actual damages or $500 whichever is greater for each action.

§ 18.2-190.1. Definitions.

As used in this article, unless the context requires a different meaning:

"Electronic communication device" means (i) any type of instrument, device, machine, equipment or software that is capable of transmitting, acquiring, encrypting, decrypting or receiving any signs, signals, writings, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems or (ii) any part, accessory or component of such an instrument, device, machine, equipment or software, including, but not limited to, any computer circuit, computer chip, security module, smart card, electronic mechanism, or other component, accessory or part, that is capable of facilitating the transmission, acquisition, encryption, decryption or reception of signs, signals, writings, images, and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems.

"Electronic communication service" means any service provided for a charge or compensation to facilitate the lawful origination, transmission, emission or reception of signs, signals, writings, images and sounds or intelligence of any nature through the use of an electronic communication device as that term is defined in this section.

"Electronic communication service provider" means any person or entity providing any electronic communication service including (i) any person or entity owning or operating any cable television, satellite, Internet-based, telephone, wireless, microwave, fiber optic, data transmission or radio distribution network, system or facility; (ii) any person or entity that for a fee supplies equipment or services to an electronic communication service provider; and (iii) any person or entity providing an electronic communication service directly or indirectly using any of the systems, networks, or facilities described in clause (i).

"Equipment or materials used to manufacture an unlawful telecommunication electronic communication device" means (i) a scanner capable of intercepting the electronic serial number or mobile identification number of a cellular or other wireless telephone; (ii) electronic software or hardware capable of altering or changing the factory-installed electronic serial number of a cellular or other wireless telephone or a computer containing such software; (iii) a list of cellular or other wireless telephone electronic serial numbers with their associated mobile identification numbers; or (iv) a part, accessory or component of an unlawful telecommunications electronic communications device possessed or used in the manufacture of such device including any electronic serial number, computer software, mobile identification number, service access card, account number, or personal identification number used to acquire, receive, use, decrypt or transmit a telecommunication an electronic communication service without the actual consent or knowledge of the telecommunication electronic communication service provider.

"Manufacture of an unlawful telecommunication electronic communication device" means to make, produce or assemble an unlawful telecommunication electronic communication device, or to modify, alter, program or reprogram a telecommunication an electronic communication device to be capable of performing any of the illegal functions of an unlawful telecommunication electronic communication device as that term is defined in this section.

"Sell" means to sell, exchange, lease, give or dispose of to another or to offer or agree to do the same.

"Telecommunication device" means (i) any type of instrument, device, machine or equipment which is capable of transmitting or receiving telephonic, electronic or radio communications, (ii) any part of such an instrument, device, machine or equipment, or any computer circuit, computer chip, electronic mechanism, or other component, which is capable of facilitating the transmission or reception of telephonic or electronic communications or (iii) any type of instrument, device, machine, equipment or software that is capable of transmitting, acquiring, encrypting, decrypting or receiving any telephonic, electronic, data, Internet access, audio, video, microwave or radio transmissions, signals, communications, or services, including the receipt, acquisition, transmission, encryption or decryption of all such telecommunication services over any cable television, fiber optic, telephone, satellite, microwave, data transmission, radio, Internet-based, or wireless distribution system, network, or facility, or any part, accessory or component thereof, including any computer circuit, security module, smart card, software, computer chip, electronic mechanism or other component, accessory or part of any telecommunication device that is capable of facilitating the transmission, decryption, encryption, acquisition, or reception of telecommunication services.

"Telecommunication service" means any service provided for a charge or compensation to facilitate the lawful origination, transmission, emission or reception of signs, signals, writings, images and sounds or intelligence of any nature through the use of a telecommunication device as that term is defined in this section.

"Telecommunication service provider" means any person or entity providing any telecommunication service including (i) any person or entity owning or operating any cable television, satellite, Internet-based, telephone, wireless, microwave, fiber optic, data transmission or radio distribution network, system or facility; (ii) any person or entity who for a fee supplies equipment or services to a telecommunication service provider; and (iii) any person or entity providing a telecommunication service directly or indirectly using any of the systems, networks, or facilities described in clause (i).

"Unlawful telecommunication electronic communication device" means any telecommunication electronic communication device that has been manufactured, designed, developed, altered, modified, programmed or reprogrammed, alone or in conjunction with another telecommunication electronic communication device, so as to be capable of facilitating the disruption, acquisition, receipt, transmission, retransmission or decryption of a telecommunication an electronic communication service without the actual consent or knowledge of the telecommunication electronic communication service provider. Such unlawful devices include, but are not limited to (i) any device, technology, product, service, equipment, computer software, or any component or part thereof, primarily distributed, sold, designed, assembled, developed, manufactured, modified, programmed, reprogrammed or used for the purpose of facilitating the unauthorized receipt of, transmission of, disruption of, decryption of, access to, or acquisition of any telecommunication electronic communication service provided by any telecommunication electronic communication service provider; and (ii) any type of instrument, device, machine, equipment, technology, or software that is primarily designed, assembled, manufactured, developed, sold, distributed, possessed, used or offered, promoted or advertised for the purpose of defeating or circumventing any technology, device or software, or any component or part thereof, used by the provider, owner or licensee of any telecommunication electronic communication service or of any data, audio or video programs or transmissions, to protect any such telecommunication electronic communication, data, audio or video services, programs or transmissions from unauthorized receipt, acquisition, access, decryption, disclosure, communication, transmission or retransmission.

§ 18.2-190.2. Possession of an unlawful electronic communication device or equipment etc., used to manufacture such device; penalty.

A person who knowingly possesses (i) an unlawful telecommunication electronic communication device or (ii) equipment or materials used to manufacture an unlawful telecommunication electronic communication device as defined in § 18.2-190.1 with the intent to manufacture an unlawful telecommunication electronic communication device is shall be guilty of a Class 6 felony unless such possession is by a telecommunication an electronic communication equipment manufacturer while lawfully acting in that capacity, or a facilities-based telecommunication electronic communication service provider licensed by the Federal Communications Commission or by a law-enforcement agency.

§ 18.2-190.3. Sale of an unlawful electronic communication device; penalty.

A person who (i) knowingly sells an unlawful telecommunication electronic communication device or (ii) sells material, including hardware, data, computer software or other information or equipment, knowing, or having reason to know, that the purchaser or a third person intends to use such material in the manufacture of an unlawful telecommunication electronic communication device, is shall be guilty of a Class 6 felony.

§ 18.2-190.4. Manufacture of an unlawful electronic communication device; penalty.

A person who knowingly manufactures an unlawful telecommunication electronic communication device is shall be guilty of a Class 6 felony.

§ 18.2-190.5. Separate offenses; penalty.

For purposes of imposing criminal penalties for violations of §§ 18.2-190.3 and 18.2-190.4, the commission of the prohibited activity regarding each unlawful telecommunication electronic communication device shall be deemed a separate offense.

§ 18.2-190.7. Forfeiture of unlawful electronic communication devices.

Any unlawful telecommunication electronic communication device possessed, manufactured or sold in violation of §§ 18.2-190.2, 18.2-190.3 or § 18.2-190.4 may be seized and forfeited to the Commonwealth, and turned over to the circuit court in the city or county in which it was seized and such property shall be disposed of as provided by law.

§ 18.2-190.8. Civil relief; damages.

Any telecommunication electronic communication service provider aggrieved by a violation of this article may seek both injunctive and equitable relief and an award of damages including attorney's fees and costs. In addition to any other remedy provided by law, the party aggrieved may recover an award of actual damages or $500, whichever is greater, for each unlawful telecommunications electronic communications device involved in the action. In any case in which the court finds that the violation was committed for purposes of commercial advantage or financial gain, the award shall be increased by an amount not to exceed three times the actual damages sustained or $1,500 for each unlawful telecommunications electronic communications device involved, whichever is greater.