Section 97-25-54 - Theft of telephone and other communication services prohibited; definitions; manufacture and possession of devices to facilitate theft prohibited; penalties(1) The following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise: (a) "Telecommunication device" means any type of instrument, device, machine, or equipment that is designed for or capable of transmitting or receiving telephonic, electronic or radio communications, or any part of such instrument, device, machine or equipment, or any computer circuit, computer chip, electronic mechanism or other component which is capable of facilitating the transmission or reception of telephonic, electronic or radio communications;(b) "Telecommunication service" means any service provided for a charge or compensation to facilitate the origination, transmission, emission or reception of signs, signals, data, writings, images and sounds or intelligence of any nature by telephone, including cellular telephones, wire, radio, electromagnetic, photoelectronic or photo-optical system.(c) "Telecommunication service provider" means an entity engaged in the creation, display, management, storage, processing, transmission or distribution for compensation of images, text, voice, video or data by wire or by wireless means, or entities engaged in the construction, design, development, manufacture, maintenance or distribution for compensation of devices, products, software or structures used in the above activities. The term does not include companies organized to do business as commercial broadcast radio stations, television stations or news organizations primarily serving in-state markets.(d) "Unlawful telecommunication device" means any electronic serial number, mobile identification number, personal identification number or any telecommunication device that is capable or has been altered, modified, programmed or reprogrammed alone or in conjunction with another access device or other equipment so as to be capable of acquiring or facilitating the acquisition of a telecommunication service without the consent of the telecommunication service provider. The term includes without limitation phones altered to obtain service without the consent of the telecommunication service provider, tumbler phones, counterfeit or clone phones, tumbler microchips, counterfeit or clone microchips, scanning receivers of wireless telecommunication service of a telecommunication service provider and other instruments capable of disguising their identity or location or of gaining access to a communications system operated by a telecommunication service provider.(2)(a) It shall be unlawful for any person to use a telecommunication device intending to avoid the payment of any lawful charge for service to the device.(b) It shall be unlawful for any person to knowingly, willfully and with intent to defraud a person providing telephone or telegraph service to avoid or attempt to avoid or to aid, abet or cause another to avoid the lawful charge in whole or in part for telephone or telegraph service by any of the following means: (i) By charging the service to an existing telephone number or credit card number without the authority of the subscriber thereto or the lawful holder thereof;(ii) By charging the service to a nonexistent telephone number or credit card number, or to a number associated with telephone service which is suspended or terminated, or to a revoked, cancelled or expired credit card number, notice of the suspension, termination, revocation or cancellation of the telephone service or credit card having been given to the subscriber thereto or the holder thereof;(iii) By use of a code, prearranged scheme, or other similar stratagem or device whereby the person, in effect, sends or receives information;(iv) By rearranging, tampering with, or making connection with telephone or telegraph facilities or equipment, whether physically, electrically, acoustically, inductively, or otherwise, or by using telephone or telegraph service with knowledge or reason to believe that the rearrangement, tampering or connection existed at the time of the use;(v) By using any other deception, false pretense, trick, scheme, device, conspiracy, or means, including the fraudulent use of false, altered, or stolen identification.(c) The first offense under this subsection shall be a misdemeanor and shall be punishable by a fine not to exceed One Thousand Dollars ($1,000.00) or imprisonment not to exceed one (1) year, or both. A second or subsequent offense under this subsection shall be a felony and shall be punishable by a fine not to exceed Fifty Thousand Dollars ($50,000.00) or commitment to the custody of the State Department of Corrections not to exceed ten (10) years, or both.(3)(a) It shall be unlawful for any person to make, possess, sell, give or otherwise transfer to another, or offer or advertise any instrument, apparatus, or device with intent to use it or with knowledge or reason to believe it is intended to be used to avoid any lawful telephone or telegraph toll charge or to conceal the existence or place of origin or destination of any telephone or telegraph message or to sell, give, or otherwise transfer to another or offer or advertise plans, instructions or any kit for making or assembling such an instrument, apparatus, or device with knowledge or reason to believe that the plans, instructions or kit may be used to make or assemble such an instrument, apparatus, or device.(b) Any person who possesses a telecommunications device with intent to sell or offer to sell to another, intending to avoid the payment of any lawful charge for service to the device or who makes, distributes, possesses, uses or assembles an unlawful telecommunication device or modifies, alters, programs or reprograms a telecommunications device designed, adapted or which can be used for commission of a theft of telecommunication service or to acquire or facilitate the acquisition of telecommunication service without the consent of the telecommunication service provider or to conceal or to assist another to conceal from any telecommunication service provider or from any lawful authority the existence or place of origin or of destination of any communication is guilty of a misdemeanor and shall be punished by imprisonment not to exceed one (1) year, a fine to not exceed Ten Thousand Dollars ($10,000.00), or both. Any person who possesses ten (10) or more such unlawful telecommunication devices is guilty of a felony, and shall be punished by a fine not to exceed Fifty Thousand Dollars ($50,000.00), commitment to the custody of the State Department of Corrections not to exceed ten (10) years, or both.(c) Any person who manufactures ten (10) or more telecommunications devices and intends to sell them to others intending to avoid the payment of any lawful charge for service to the device is guilty of a felony, and shall be punished by a fine not to exceed Fifty Thousand Dollars ($50,000.00), commitment to the custody of the State Department of Corrections not to exceed ten (10) years, or both.(4) It shall be unlawful for any person to publish the number or code of an existing, canceled, revoked, expired, or nonexistent credit card, or the numbering or coding which is employed in the issuance of credit cards, with the intent that it be used or with knowledge or reason to believe that it will be used to avoid the payment of any lawful telephone or telegraph toll charge. For the purposes of this section, "publishes" means the communication of information to any one or more persons, either orally, in person or by telephone, radio or television, or electronic means, including without limitation a bulletin board system, or in a writing of any kind, including without limitation a letter or memorandum, circular or handbill, newspaper, magazine article, or book.(5) It shall be unlawful for any person who is the holder of a calling card, credit card, calling code, or any other means or device for the legal use of telecommunications services and who receives anything of value for knowingly allowing another person to use the means or device in order to fraudulently obtain telecommunication services.(6)(a) A person shall be guilty of theft of telecommunications services if, having control over the disposition of services of others to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto. Theft of telecommunications services when the value of the services obtained or diverted is less than Fifty Dollars ($50.00) shall be a misdemeanor. Theft of telecommunications services when the value of the services obtained or diverted is Fifty Dollars ($50.00) or more shall be a felony and shall be punished by a fine not to exceed Ten Thousand Dollars ($10,000.00), or commitment to the custody of the State Department of Corrections for a period not to exceed ten (10) years, or both.(b) Amounts involved in theft of services committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the gravity of the offense.(7) The provisions of this section shall apply to any telecommunication service which either originates or terminates or both originates and terminates in this state or when the charges for service would have been billable, in normal course, by a person or entity providing telecommunication service in this state, but for the fact that the charge or service was avoided, or attempted to be avoided, by one or more means proscribed by this section.(8) Except as otherwise provided herein, the first offense under this section shall be a misdemeanor and shall be punishable by a fine not to exceed One Thousand Dollars ($1,000.00) or imprisonment not to exceed one (1) year, or both. A second or subsequent offense under this section shall be a felony and shall be punishable by a fine not to exceed Fifty Thousand Dollars ($50,000.00) or commitment to the custody of the State Department of Corrections not to exceed ten (10) years, or both.(9) Any person defrauded by any acts prohibited under this section shall be entitled to restitution for the entire amount of the charges avoided from any person or persons convicted under this section. The court may, in addition to any other sentence authorized by law, sentence a person convicted of violating this section to make restitution.(10) A telecommunication service provider aggrieved by a violation of this section may, in a civil action in any court of competent jurisdiction, obtain appropriate relief, including preliminary and other equitable or declaratory relief, compensatory and punitive damages, reasonable investigation expenses, costs of court and attorney fees.(11) Any instrument, apparatus, device, plans, instructions, kit, or written publication described in subsection (2) or (3) of this section may be seized under warrant or incident to a lawful arrest, and, upon the conviction of a person for a violation of this section, the instrument, apparatus, device, plans, instructions, or written publication may be destroyed as contraband as provided by law.Laws, 1995, ch. 411, § 1, eff. 7/1/1995.