S.B. 31 Enrolled

CELLULAR PHONE FRAUD
1997 GENERAL SESSION
STATE OF UTAH
Sponsor: Scott N. Howell
AN ACT RELATING TO CRIMINAL CODE; ADDING DEFINITIONS; ADDING AND
MODIFYING ELEMENTS OF CRIME AND PENALTIES; AND MAKING
TECHNICAL CORRECTIONS.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
76-6-409.5, as enacted by Chapter 215, Laws of Utah 1994
76-6-409.6, as last amended by Chapter 291, Laws of Utah 1995
76-6-409.7, as enacted by Chapter 215, Laws of Utah 1994
76-6-409.8, as enacted by Chapter 215, Laws of Utah 1994
76-6-409.9, as enacted by Chapter 215, Laws of Utah 1994
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 76-6-409.5 is amended to read:
76-6-409.5. Definitions.
As used in this section and Sections 76-6-409.6 through 76-6-409.10:
(1) "Access device" means any telecommunication device including the telephone calling
card number, electronic serial number, account number, mobile identification number, or personal
identification number that can be used to obtain telephone service.
(2) "Clone cellular telephone" or "counterfeit cellular telephone" means a cellular
telephone whose electronic serial number has been altered from the electronic serial number that
was programmed in the telephone by the manufacturer by someone other than the manufacturer.
(3) "Cloning paraphernalia" means materials that, when possessed in combination, are
capable of the creation of a cloned cellular telephone. These materials include scanners to
intercept the electronic serial number and mobile identification number, cellular telephones, cables,
EPROM chips, EPROM burners, software for programming the cloned telephone with a false
electronic serial number and mobile identification number combination, a computer containing

such software, and lists of electronic serial number and mobile identification number combinations.
(4) "Electronic serial number" means the unique number that:
(a) was programmed into a cellular telephone by its manufacturer;
(b) is transmitted by the cellular telephone; and
(c) is used by cellular telephone providers to validate radio transmissions to the system as
having been made by an authorized device.
(5) "EPROM" or "Erasable programmable read-only memory" means an integrated circuit
memory that can be programmed from an external source and erased, for reprogramming, by
exposure to ultraviolet light.
(6) "Intercept" means to electronically capture, record, reveal, or otherwise access, the
signals emitted or received during the operation of a cellular telephone without the consent of the
sender or receiver, by means of any instrument, device or equipment.
[(2)] (7) "Manufacture of an unlawful telecommunication device" means to produce or
assemble an unlawful telecommunication device, or to modify, alter, program, or reprogram a
telecommunication device to be capable of acquiring or facilitating the acquisition of
telecommunication service without the consent of the telecommunication service provider.
(8) "Mobile identification number" means the cellular telephone number assigned to the
cellular telephone by the cellular telephone carrier.
(9) "Possess" means to have physical possession or otherwise to exercise control over
tangible property.
[(3)] (10) "Sell" means to offer to, agree to offer to, or to sell, exchange, give, or dispose of
an unlawful telecommunications device to another.
[(4)] (11) "Telecommunication device" means:
(a) any type of instrument, device, machine, or equipment which is capable of transmitting
or receiving telephonic, electronic, or radio communications; or
(b) any part of an instrument, device, machine, or equipment, or other computer circuit,
computer chip, electronic mechanism, or other component, which is capable of facilitating the
transmission or reception of telephonic or electronic communications within the radio spectrum

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allocated to cellular radio telephony.
[(5)] (12) "Telecommunication service" includes any service provided for a charge or
compensation to facilitate the origination, transmission, emission, or reception of signs, signals,
writings, images, and sounds or intelligence of any nature by telephone, including cellular
telephones, wire, radio, television optical or other electromagnetic system.
[(6)] (13) "Telecommunication service provider" means any person or entity providing
telecommunication service including a cellular telephone or paging company or other person or
entity which, for a fee, supplies the facility, cell site, mobile telephone switching office, or other
equipment or telecommunication service.
[(7)] (14) "Unlawful telecommunication device" means any telecommunication device that
is capable of, or has been altered, modified, programmed, or reprogrammed, alone or in conjunction
with another access device, so as to be capable of, acquiring or facilitating the acquisition of a
telecommunication service without the consent of the telecommunication service provider. Unlawful
devices include tumbler phones, counterfeit phones, tumbler microchips, counterfeit microchips, and
other instruments capable of disguising their identity or location or of gaining access to a
communications system operated by a telecommunication service provider.
Section 2. Section 76-6-409.6 is amended to read:
76-6-409.6. Use of telecommunication device to avoid lawful charge for service --
Penalty.
(1) Any person who uses a telecommunication device with the intent to avoid the payment
of any lawful charge for telecommunication service or with the knowledge that it was to avoid the
payment of any lawful charge for telecommunication service is guilty of:
(a) a class B misdemeanor, if the value of the telecommunication service is less than $300
or cannot be ascertained;
(b) a class A misdemeanor, if the value of the telecommunication service charge is or
exceeds $300 but is not more than $1,000;
(c) a third degree felony, if the value of the telecommunication service is or exceeds $1,000
but is not more than $5,000; [or]

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(d) a second degree felony, if:
(i) the value of the telecommunication service is or exceeds $5,000[.]; or
(ii) the cloned cellular telephone was used to facilitate the commission of a felony.
(2) Any person who has been convicted previously of an offense under this section [shall
be] is guilty of a second degree felony upon a second conviction and any subsequent conviction.
Section 3. Section 76-6-409.7 is amended to read:
76-6-409.7. Possession of any unlawful telecommunication device -- Penalty.
(1) Any person who knowingly possesses an unlawful telecommunication device [shall be]
is guilty of a class B misdemeanor.
(2) [If any] Any person who knowingly possesses five or more unlawful telecommunication
devices in the same criminal episode[, he shall be] is guilty of a [class A misdemeanor] third degree
felony.
(3) Any person is guilty of a second degree felony who:
(a) knowingly and unlawfully possesses an instrument capable of intercepting electronic
serial number and mobile identification number combinations under circumstances evidencing an
intent to clone; or
(b) knowingly and unlawfully possesses cloning paraphernalia under circumstances
evidencing an intent to clone.
Section 4. Section 76-6-409.8 is amended to read:
76-6-409.8. Sale of an unlawful telecommunication device -- Penalty.
(1) Any person [shall be] is guilty of a [class A misdemeanor] third degree felony who
intentionally sells an unlawful telecommunication device or material, including hardware, data,
computer software, or other information or equipment, knowing that the purchaser or a third person
intends to use such material in the manufacture of an unlawful telecommunication device.
(2) If the offense under this section involves the intentional sale of five or more unlawful
telecommunication devices within a six-month period, the person committing the offense [shall be]
is guilty of a [third] second degree felony.
Section 5. Section 76-6-409.9 is amended to read:

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76-6-409.9. Manufacture of an unlawful telecommunication device -- Penalty.
(1) Any person who intentionally manufactures an unlawful telecommunication device [shall
be] is guilty of a [class A misdemeanor] third degree felony.
(2) If the offense under this section involves the intentional manufacture of five or more
unlawful telecommunication devices within a six-month period, the person committing the offense
[shall be] is guilty of a [third] second degree felony.

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