S.B. 31

1

CELLULAR PHONE FRAUD
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Scott N. Howell
5 AN ACT RELATING TO CRIMINAL CODE; ADDING DEFINITIONS; ADDING AND
6 MODIFYING ELEMENTS OF CRIME AND PENALTIES; AND MAKING TECHNICAL
7 CORRECTIONS.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 AMENDS:
10 76-6-409.5, as enacted by Chapter 215, Laws of Utah 1994
11 76-6-409.6, as last amended by Chapter 291, Laws of Utah 1995
12 76-6-409.7, as enacted by Chapter 215, Laws of Utah 1994
13 76-6-409.8, as enacted by Chapter 215, Laws of Utah 1994
14 76-6-409.9, as enacted by Chapter 215, Laws of Utah 1994
15 Be it enacted by the Legislature of the state of Utah:
16 Section 1. Section 76-6-409.5 is amended to read:
17 76-6-409.5. Definitions.
18 As used in this section and Sections 76-6-409.6 through 76-6-409.10:
19 (1) "Access device" means any telecommunication device including the telephone calling
20 card number, electronic serial number, account number, mobile identification number, or personal
21 identification number that can be used to obtain telephone service.
22 (2) "Clone cellular telephone" or "counterfeit cellular telephone" means a cellular
23 telephone whose electronic serial number has been altered from the electronic serial number that
24 was programmed in the phone by the manufacturer by someone other than the manufacturer.
25 (3) "Cloning paraphernalia" means materials that, when possessed in combination, are
26 capable of the creation of a cloned cellular telephone. These materials include scanners to
27 intercept the electronic serial number and mobile identification number, cellular telephones, cables,

1 EPROM chips, EPROM burners, software for programming the cloned phone with a false
2 electronic serial number and mobile identification number combination, a computer containing
3 such software, and lists of electronic serial number and mobile identification number
4 combinations.
5 (4) "Electronic serial number" means the unique number that:
6 (a) was programmed into a cellular telephone by its manufacturer;
7 (b) is transmitted by the cellular phone; and
8 (c) used by cellular telephone providers to validate radio transmissions to the system as
9 having been made by an authorized device.
10 (5) "EPROM" or "Erasable programmable read-only memory" means an integrated circuit
11 memory that can be programmed from an external source and erased, for reprogramming, by
12 exposure to ultraviolet light.
13 (6) "Intercept" means to electronically capture, record, reveal, or otherwise access, the
14 signals emitted or received during the operation of a cellular telephone without the consent of the
15 sender or receiver, by means of any instrument, device or equipment.
16 [(2)] (7) "Manufacture of an unlawful telecommunication device" means to produce or
17 assemble an unlawful telecommunication device, or to modify, alter, program, or reprogram a
18 telecommunication device to be capable of acquiring or facilitating the acquisition of
19 telecommunication service without the consent of the telecommunication service provider.
20 (8) "Mobile identification number" means the cellular telephone number assigned to the
21 cellular telephone by the cellular telephone carrier.
22 (9) "Possess" means to have physical possession or otherwise to exercise control over
23 tangible property.
24 [(3)] (10) "Sell" means to offer to, agree to offer to, or to sell, exchange, give, or dispose
25 of an unlawful telecommunications device to another.
26 [(4)] (11) "Telecommunication device" means:
27 (a) any type of instrument, device, machine, or equipment which is capable of transmitting
28 or receiving telephonic, electronic, or radio communications; or
29 (b) any part of an instrument, device, machine, or equipment, or other computer circuit,
30 computer chip, electronic mechanism, or other component, which is capable of facilitating the
31 transmission or reception of telephonic or electronic communications within the radio spectrum

- 2 -

1 allocated to cellular radio telephony.
2 [(5)] (12) "Telecommunication service" includes any service provided for a charge or
3 compensation to facilitate the origination, transmission, emission, or reception of signs, signals,
4 writings, images, and sounds or intelligence of any nature by telephone, including cellular
5 telephones, wire, radio, television optical or other electromagnetic system.
6 [(6)] (13) "Telecommunication service provider" means any person or entity providing
7 telecommunication service including a cellular telephone or paging company or other person or
8 entity which, for a fee, supplies the facility, cell site, mobile telephone switching office, or other
9 equipment or telecommunication service.
10 [(7)] (14) "Unlawful telecommunication device" means any telecommunication device that
11 is capable of, or has been altered, modified, programmed, or reprogrammed, alone or in
12 conjunction with another access device, so as to be capable of, acquiring or facilitating the
13 acquisition of a telecommunication service without the consent of the telecommunication service
14 provider. Unlawful devices include tumbler phones, counterfeit phones, tumbler microchips,
15 counterfeit microchips, and other instruments capable of disguising their identity or location or of
16 gaining access to a communications system operated by a telecommunication service provider.
17 Section 2. Section 76-6-409.6 is amended to read:
18 76-6-409.6. Use of telecommunication device to avoid lawful charge for service --
19 Penalty.
20 (1) Any person who uses a telecommunication device with the intent to avoid the payment
21 of any lawful charge for telecommunication service or with the knowledge that it was to avoid the
22 payment of any lawful charge for telecommunication service is guilty of:
23 (a) a class B misdemeanor, if the value of the telecommunication service is less than $300
24 or cannot be ascertained;
25 (b) a class A misdemeanor, if the value of the telecommunication service charge is or
26 exceeds $300 but is not more than $1,000;
27 (c) a third degree felony, if the value of the telecommunication service is or exceeds
28 $1,000 but is not more than $5,000; [or]
29 (d) a second degree felony, if:
30 (i) the value of the telecommunication service is or exceeds $5,000[.]; or
31 (ii) the cloned cellular phone was used to facilitate the commission of a felony.

- 3 -

1 (2) Any person who has been convicted previously of an offense under this section [shall
2 be] is guilty of a second degree felony upon a second conviction and any subsequent conviction.
3 Section 3. Section 76-6-409.7 is amended to read:
4 76-6-409.7. Possession of any unlawful telecommunication device -- Penalty.
5 (1) Any person who knowingly possesses an unlawful telecommunication device [shall
6 be] is guilty of a class B misdemeanor.
7 (2) [If any] Any person who knowingly possesses five or more unlawful
8 telecommunication devices in the same criminal episode[, he shall be] is guilty of a [class A
9 misdemeanor] third degree felony.
10 (3) Any person is guilty of a second degree felony who:
11 (a) knowingly and unlawfully possess an instrument capable of intercepting electronic
12 serial number and mobile identification number combinations under circumstances evidencing an
13 intent to clone; or
14 (b) knowingly and unlawfully possesses cloning paraphernalia under circumstances
15 evidencing an intent to clone.
16 Section 4. Section 76-6-409.8 is amended to read:
17 76-6-409.8. Sale of an unlawful telecommunication device -- Penalty.
18 (1) Any person [shall be] is guilty of a [class A misdemeanor] third degree felony who
19 intentionally sells an unlawful telecommunication device or material, including hardware, data,
20 computer software, or other information or equipment, knowing that the purchaser or a third
21 person intends to use such material in the manufacture of an unlawful telecommunication device.
22 (2) If the offense under this section involves the intentional sale of five or more unlawful
23 telecommunication devices within a six-month period, the person committing the offense [shall
24 be] is guilty of a [third] second degree felony.
25 Section 5. Section 76-6-409.9 is amended to read:
26 76-6-409.9. Manufacture of an unlawful telecommunication device -- Penalty.
27 (1) Any person who intentionally manufactures an unlawful telecommunication device
28 [shall be] is guilty of a [class A misdemeanor] third degree felony.
29 (2) If the offense under this section involves the intentional manufacture of five or more
30 unlawful telecommunication devices within a six-month period, the person committing the offense
31 [shall be] is guilty of a [third] second degree felony.

- 4 -

Legislative Review Note
as of 1-2-97 2:15 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

- 5 -