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<PRE>[DOCID: f:s493enr.txt]
        S.493

                       One Hundred Fifth Congress

                                 of the

                        United States of America


                          AT THE SECOND SESSION

          Begun and held at the City of Washington on Tuesday,
the twenty-seventh day of January, one thousand nine hundred and ninety-
                                  eight


                                 An Act


 
    To amend title 18, United States Code, with respect to scanning 
                     receivers and similar devices.

    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 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;
            (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 factor that the Commission considers to be 
        appropriate.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
   
45
                                            President of the Senate.

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