[EVO 4G General] Papa Smurf151:
[105th Congress Public Law 172]

[From the U.S. Government Printing Office]

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[DOCID: f:publ172.105]

[[Page 112 STAT. 53]]

Public Law 105-172

105th Congress

An Act

To amend title 18, United States Code, with respect to scanning

receivers and similar devices. <<NOTE: Apr. 24, 1998 - [S. 493]>>

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, <<NOTE: Wireless

Telephone Protection Act. Law enforcement and crime. 18 USC 1001

note.>>

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Wireless Telephone Protection Act''.

SEC. 2. FRAUD AND RELATED ACTIVITY IN CONNECTION WITH COUNTERFEIT

ACCESS DEVICES.

(a) Unlawful Acts.--Section 1029(a) of title 18, United States Code,

is amended--

(1) by redesignating paragraph (9) as paragraph (10); and

(2) by striking paragraph (8) and inserting the following:

``(8) knowingly and with intent to defraud uses, produces,

traffics in, has control or custody of, or possesses a scanning

receiver;

``(9) knowingly uses, produces, traffics in, has control or

custody of, or possesses hardware or software, knowing it has

been configured to insert or modify telecommunication

identifying information associated with or contained in a

telecommunications instrument so that such instrument may be

used to obtain telecommunications service without authorization;

or''.

(b) Penalties.--

(1) Generally.--Section 1029(c) of title 18, United States

Code, is amended to read as follows:

``(c) Penalties.--

``(1) Generally.--The punishment for an offense under

subsection (a) of this section is--

``(A) in the case of an offense that does not occur

after a conviction for another offense under this

section--

``(i) if the offense is under paragraph (1),

(2), (3), (6), (7), or (10) of subsection (a), a

fine under this title or imprisonment for not more

than 10 years, or both; and

``(ii) if the offense is under paragraph (4),

(5), (8), or (9), of subsection (a), a fine under

this title or imprisonment for not more than 15

years, or both;

``(B) in the case of an offense that occurs after a

conviction for another offense under this section, a

fine under this title or imprisonment for not more than

20 years, or both; and

[[Page 112 STAT. 54]]

``(C) in either case, forfeiture to the United

States of any personal property used or intended to be

used to commit the offense.

``(2) Forfeiture procedure.--The forfeiture of property

under this section, including any seizure and disposition of the

property and any related administrative and judicial proceeding,

shall be governed by section 413 of the Controlled Substances

Act, except for subsection (d) of that section.''.

(2) Attempts.--Section 1029(b)(1) of title 18, United States

Code, is amended by striking ``punished as provided in

subsection (c) of this section'' and inserting ``subject to the

same penalties as those prescribed for the offense attempted''.

(c) Definitions.--Section 1029(e)(8) of title 18, United States

Code, is amended by inserting before the period ``or to intercept an

electronic serial number, mobile identification number, or other

identifier of any telecommunications service, equipment, or

instrument''.

(d) Applicability of New Section 1029(a)(9).--

(1) In general.--Section 1029 of title 18, United States

Code, is amended by adding at the end the following:

``(g)(1) It is not a violation of subsection (a)(9) for an officer,

employee, or agent of, or a person engaged in business with, a

facilities-based carrier, to engage in conduct (other than trafficking)

otherwise prohibited by that subsection for the purpose of protecting

the property or legal rights of that carrier, unless such conduct is for

the purpose of obtaining telecommunications service provided by another

facilities-based carrier without the authorization of such carrier.

``(2) In a prosecution for a violation of subsection (a)(9), (other

than a violation consisting of producing or trafficking) it is an

affirmative defense (which the defendant must establish by a

preponderance of the evidence) that the conduct charged was engaged in

for research or development in connection with a lawful purpose.''.

(2) Definitions.--Section 1029(e) of title 18, United States

Code, is amended--

(A) by striking ``and'' at the end of paragraph (6);

(B) by striking the period at the end of paragraph

(7) and inserting a semicolon; and

(C) by striking the period at the end of paragraph

(8); and

(D) by adding at the end the following:

``(9) the term `telecommunications service' has the meaning

given such term in section 3 of title I of the Communications

Act of 1934 (47 U.S.C. 153);

``(10) the term `facilities-based carrier' means an entity

that owns communications transmission facilities, is responsible

for the operation and maintenance of those facilities, and holds

an operating license issued by the Federal Communications

Commission under the authority of title III of the

Communications Act of 1934; and

``(11) the term `telecommunication identifying information'

means electronic serial number or any other number or signal

that identifies a specific telecommunications instrument or

account, or a specific communication transmitted from a

telecommunications instrument.''.

[[Page 112 STAT. 55]]

(e) <<NOTE: 28 USC 994 note.>> Amendment of Federal Sentencing

Guidelines for Wireless Telephone Cloning.--

(1) In general.--Pursuant to its authority under section 994

of title 28, United States Code, the United States Sentencing

Commission shall review and amend the Federal sentencing

guidelines and the policy statements of the Commission, if

appropriate, to provide an appropriate penalty for offenses

involving the cloning of wireless telephones (including offenses

involving an attempt or conspiracy to clone a wireless

telephone).

(2) Factors for consideration.--In carrying out this

subsection, the Commission shall consider, with respect to the

offenses described in paragraph (1)--

(A) the range of conduct covered by the offenses;

(B) the existing sentences for the offenses;

(C) the extent to which the value of the loss caused

by the offenses (as defined in the Federal sentencing

guidelines) is an adequate measure for establishing

penalties under the Federal sentencing guidelines;

(D) the extent to which sentencing enhancements

within the Federal sentencing guidelines and the court's

authority to sentence above the applicable guideline

range are adequate to ensure punishment at or near the

maximum penalty for the most egregious conduct covered

by the offenses;

(E) the extent to which the Federal sentencing

guideline sentences for the offenses have been

constrained by statutory maximum penalties;

(F) the extent to which Federal sentencing

guidelines for the offenses adequately achieve the

purposes of sentencing set forth in section 3553(a)(2)

of title 18, United States Code;

(G) the relationship of Federal sentencing

guidelines for the offenses to the Federal sentencing

guidelines for other offenses of comparable seriousness;

and

(H) any other factor that the Commission considers

to be appropriate.

Approved April 24, 1998.

LEGISLATIVE HISTORY--S. 493 (H.R. 2460):

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HOUSE REPORTS: No. 105-418 accompanying H.R. 2460 (Comm. on the

Judiciary).

CONGRESSIONAL RECORD:

Vol. 143 (1997):

Nov. 10, considered and passed

Senate.

Vol. 144 (1998):

Feb. 26, considered and passed

House, amended, in lieu of H.R.

2460.

Apr. 1, Senate concurred in House

amendments.

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