Text: S.493 — 105th Congress (1997-1998)All Information (Except Text)

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Public Law No: 105-172 (04/24/1998)

 
[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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