[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 493 Reported in Senate (RS)]





                                                       Calendar No. 167

105th CONGRESS

  1st Session

                                 S. 493

_______________________________________________________________________

                                 A BILL

To amend section 1029 of title 18, United States Code, with respect to 
               cellular telephone cloning paraphernalia.

_______________________________________________________________________

                           September 18, 1997

                       Reported with an amendment





                                                       Calendar No. 167
105th CONGRESS
  1st Session
                                 S. 493

To amend section 1029 of title 18, United States Code, with respect to 
               cellular telephone cloning paraphernalia.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 20, 1997

Mr. Kyl (for himself, Mr. Gorton, Mr. DeWine, Mr. Helms, Mr. Lott, Mr. 
   Dorgan, Mr. Thurmond, Ms. Mikulski, Mr. Durbin, and Mr. Cleland) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

                           September 18, 1997

                Reported by Mr. Hatch, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
To amend section 1029 of title 18, United States Code, with respect to 
               cellular telephone cloning paraphernalia.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Cellular Telephone 
Protection Act''.</DELETED>

<DELETED>SEC. 2. FRAUD AND RELATED ACTIVITY IN CONNECTION WITH 
              COUNTERFEIT ACCESS DEVICES.</DELETED>

<DELETED>    (a) Unlawful Acts.--Section 1029(a) of title 18, United 
States Code, is amended--</DELETED>
        <DELETED>    (1) in paragraph (7), by striking ``use of'' and 
        inserting ``access to'';</DELETED>
        <DELETED>    (2) by redesignating paragraph (9) as paragraph 
        (10); and</DELETED>
        <DELETED>    (3) by striking paragraph (8) and inserting the 
        following:</DELETED>
        <DELETED>    ``(8) knowingly and with intent to defraud uses, 
        produces, traffics in, has control or custody of, or possesses 
        a scanning receiver;</DELETED>
        <DELETED>    ``(9) knowingly uses, produces, traffics in, has 
        control or custody of, or possesses hardware or software that 
        may be used for--</DELETED>
                <DELETED>    ``(A) modifying or copying an electronic 
                serial number; or</DELETED>
                <DELETED>    ``(B) altering or modifying a 
                telecommunications instrument so that the instrument 
                may be used to obtain unauthorized access to 
                telecommunications services; or''.</DELETED>
<DELETED>    (b) Penalties.--Section 1029(c) of title 18, United States 
Code, is amended to read as follows:</DELETED>
<DELETED>    ``(c) Penalties.--The punishment for an offense under 
subsection (a) or (b)(1) is--</DELETED>
        <DELETED>    ``(1) in the case of an offense that does not 
        occur after a conviction for another offense under subsection 
        (a) or (b)(1), or an attempt to commit an offense punishable 
        under subsection (a) or (b)(1), a fine under this title or 
        twice the value obtained by the offense, whichever is greater, 
        imprisonment for not more than 15 years, or both; and</DELETED>
        <DELETED>    ``(2) in the case of an offense that occurs after 
        a conviction for another offense under subsection (a) or 
        (b)(1), or an attempt to commit an offense punishable under 
        subsection (a) or (b)(1), a fine under this title or twice the 
        value obtained by the offense, whichever is greater, 
        imprisonment for not more than 20 years, or both.''.</DELETED>
<DELETED>    (c) Definition of Scanning Receiver.--Section 1029(e)(8) 
of title 18, United States Code, is amended by inserting before the 
period at the end the following: ``or any electronic serial number, 
mobile identification number, personal identification number, or other 
identifier of any telecommunications service, equipment, or 
instrument''.</DELETED>
<DELETED>    (d) Exception for Certain Telecommunications Services 
Providers.--Section 1029 of title 18, United States Code, is amended by 
adding at the end the following:</DELETED>
<DELETED>    ``(g) Exception for Certain Telecommunications Services 
Providers.--</DELETED>
        <DELETED>    ``(1) Definitions.--In this subsection, the term 
        `telecommunications carrier' has the same meaning as in section 
        3 of the Communications Act of 1934 (47 U.S.C. 153).</DELETED>
        <DELETED>    ``(2) Permissible activities.--This section does 
        not prohibit any telecommunications carrier, or an officer, 
        agent, or employee of, or a person under contract with a 
        telecommunications carrier, engaged in protecting any property 
        or legal right of the telecommunications carrier, from sending 
        through the mail, sending or carrying in interstate or foreign 
        commerce, having control or custody of, or possessing, 
        manufacturing, assembling, or producing any otherwise 
        unlawful--</DELETED>
                <DELETED>    ``(A) device-making equipment, scanning 
                receiver, or access device; or</DELETED>
                <DELETED>    ``(B) hardware or software used for--
                </DELETED>
                        <DELETED>    ``(i) modifying or altering an 
                        electronic serial number; or</DELETED>
                        <DELETED>    ``(ii) altering or modifying a 
                        telecommunications instrument so that the 
                        instrument may be used to obtain unauthorized 
                        access to telecommunications 
                        services.''.</DELETED>

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 for altering or modifying a telecommunications 
        instrument so that such instrument may be used to obtain 
        unauthorized access to telecommunications services; or''.
    (b) Penalties.--
            (1) Generally.--Section 1029(c) of title 18, United States 
        Code, is amended to read as follows:
    ``(c) Penalties.--The punishment for an offense under subsection 
(a) section is--
            ``(1) in the case of an offense that does not occur after a 
        conviction for another offense under this section that has 
        become final and that was committed on a separate prior 
        occasion.
                    ``(A) if the offense is under paragraph (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
                    ``(B) if the offense is under paragraph (1), (4), 
                (5), (8), or (9), of subsection (a), a fine under this 
                title or imprisonment for not more than 15 years, or 
                both; and
            ``(2) in the case of an offense that occurs after a 
        conviction for another offense under this section, that has 
        become final and that was committed on a separate prior 
        occasion, that has a fine under this title or imprisonment for 
        not more than 20 years, or both.''.
            (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) Definition of Scanning Receiver.--Section 1029(e) of title 18, 
United States Code, is amended--
            (1) in paragraph (6), by striking ``and'' at the end;
            (2) in paragraph (7)--
                    (A) by striking ``The'' and inserting ``the''; and
                    (B) by striking the period at the end and inserting 
                a semicolon; and
            (3) in paragraph (8), by striking the period at the end and 
        inserting ``or to intercept an electronic serial number, mobile 
        identification number, or other identifier of any 
telecommunications service, equipment, or instrument; and''.
    (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) It is not a violation of subsection (a)(9) for an officer, 
employee, or agent of, or a person under contract with, a facilities-
based carrier, for the purpose of protecting the property or legal 
rights of that carrier, to use, produce, have custody or control of, or 
possess hardware or software configured as described in that subsection 
(a)(9).''.
            (2) Definition of facilities-based carrier.--Section 
        1029(e) of title 18, United States Code, as amended by 
        subsection (c) of this section, is amended by adding at the end 
        the following:
    ``(9) 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.''.
    (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 impose a sentence in excess of 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 factors that the Commission considers 
                to be appropriate.