[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 493 Engrossed Amendment House (EAH)]


  2d Session

                                 S. 493

_______________________________________________________________________

                               AMENDMENTS
                In the House of Representatives, U. S.,

                                                     February 26, 1998.

    Resolved, That the bill from the Senate (S. 493) entitled ``An Act to amend 
section 1029 of title 18, United States Code, with respect to cellular telephone 
cloning paraphernalia'', do pass with the following

                              AMENDMENTS:

            Strike out all after the enacting clause and insert:

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
                    ``(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.''.
    (e) 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;
                    (G) 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;
                    (H) the relationship of Federal sentencing 
                guidelines for the offenses to the Federal sentencing 
                guidelines for other offenses of comparable 
                seriousness; and
                    (I) any other factor that the Commission considers 
                to be appropriate.

            Amend the title so as to read ``An Act to amend title 18, 
        United States Code, with respect to scanning receivers and 
        similar devices.''.
            Attest:

                                                                          Clerk.