S. 493 (rs) To amend section 1029 of title 18, United States Code, with respect to cellular telephone cloning paraphernalia. ...

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105th CONGRESS
  1st Session
                                 S. 493


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           November 12, 1997

               Referred to the Committee on the Judiciary

_______________________________________________________________________

                                 AN ACT


 
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,

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.--(1) In general.--The punishment for an offense 
under subsection (a) is--
            ``(A) in the case of an offense that does not occur after a 
        conviction for another offense under this section, which 
        conviction has become final--
                    ``(i) if the offense is under paragraph (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 (1), (2), 
                (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, which 
        conviction has become final, a fine under this title or 
        imprisonment for not more than 20 years, or both; and
            ``(C) in any case, in addition to any other punishment 
        imposed or any other forfeiture required by law, forfeiture to 
        the United States of any personal property used or intended to 
        be used to commit, facilitate, or promote the commission of the 
        offense.
    ``(2) Applicable Procedure.--The criminal forfeiture of personal 
property subject to forfeiture under paragraph (1)(C), any seizure and 
disposition thereof, and any administrative or judicial proceeding in 
relation thereto, shall be governed by subsections (c) and (e) through 
(p) of section 413 of the Controlled Substances Act (21 U.S.C. 853).''.
            (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): Provided, That if such hardware or software is used to obtain 
access to telecommunications service provided by another facilities-
based carrier, such access is authorized.''.
            (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.

            Passed the Senate November 10, 1997.

            Attest:

                                                    GARY SISCO,

                                                             Secretary.

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