BY REPRESENTATIVES Dean, May, Musgrave, Spradley, and Tupa;
also SENATORS Schroeder, Arnold, Chlouber, and Tebedo.
CONCERNING THE THEFT OF CABLE SERVICES.
Be it enacted by the General Assembly of the State
of Colorado:
SECTION 1. 184701,
Colorado Revised Statutes, is amended to read:
184701. Theft of cable
service definitions. (1) A
person commits theft of cable television service if he knowingly
AS USED IN THIS PART 7, UNLESS THE CONTEXT OTHERWISE REQUIRES:
(a) Obtains
cable television service from a licensed or duly permitted cable
television system without the authorization of the cable television
system supplying said service; or
"CABLE OPERATOR" MEANS ANY PERSON WHO:
(I) PROVIDES CABLE SERVICE OVER A CABLE
SYSTEM IN WHICH SUCH PERSON DIRECTLY OR THROUGH ONE OR MORE AFFILIATES
OWNS A SIGNIFICANT INTEREST; OR
(II) CONTROLS OR IS RESPONSIBLE FOR THE
MANAGEMENT AND OPERATION OF SUCH CABLE SYSTEM THROUGH ANY ARRANGEMENT.
(b) Makes
or maintains a connection or connections, whether mechanically,
electrically, or acoustically, or attaches or maintains an attachment
of any device or devices to any cable, wire, or other component
of a licensed or duly permitted cable television system without
the authorization of such system or makes or maintains any modification
or alteration to any device installed with the authorization of
a licensed or duly permitted cable television system, but shall
not include the attachment of a wire or cable to extend service
he has paid for or which has been authorized; or
"CABLE SERVICE" MEANS:
(I) THE ONEWAY TRANSMISSION TO SUBSCRIBERS
OF A VIDEO PROGRAMMING SERVICE;
(II) TWOWAY INTERACTIVE SERVICES
DELIVERED OVER A CABLE SYSTEM;
(III) SUBSCRIBER INTERACTION, IF ANY,
THAT IS REQUIRED FOR THE SELECTION OR USE OF SUCH VIDEO PROGRAMMING
OR INTERACTIVE SERVICE.
(c) Manufactures,
distributes, sells, or offers for sale, rental, or use any decoding
or descrambling device or any plan or kit for such device, designed
in whole or in part to facilitate the doing of any of the acts
specified in paragraphs (a) and (b) of this subsection (1).
"CABLE SYSTEM" MEANS A FACILITY CONSISTING OF A SET
OF CLOSED TRANSMISSION PATHS AND ASSOCIATED SIGNAL OPERATION,
RECEPTION, AND CONTROL EQUIPMENT THAT IS DESIGNED TO PROVIDE CABLE
SERVICE.
(2) The provisions
of this section do not apply to satellite dishes
A PERSON COMMITS THEFT OF CABLE SERVICE IF SUCH PERSON KNOWINGLY:
(a) OBTAINS CABLE SERVICE FROM A CABLE
OPERATOR BY TRICK, ARTIFICE, DECEPTION, USE OF AN UNAUTHORIZED
DEVICE OR DECODER, OR OTHER MEANS WITHOUT AUTHORIZATION OR WITH
THE INTENT TO DEPRIVE SUCH CABLE OPERATOR OF LAWFUL COMPENSATION
FOR THE SERVICES RENDERED;
(b) (I) MAKES OR MAINTAINS, WITHOUT
AUTHORITY FROM OR PAYMENT TO A CABLE OPERATOR, A CONNECTION OR
CONNECTIONS, WHETHER PHYSICAL, ELECTRICAL, MECHANICAL, ACOUSTICAL,
OR OTHERWISE WITH ANY CABLE, WIRE, COMPONENT, OR OTHER DEVICE
USED FOR THE DISTRIBUTION OF CABLE SERVICES.
(II) NOTWITHSTANDING SUBPARAGRAPH (I)
OF THIS PARAGRAPH (b), THIS PARAGRAPH (b) SHALL NOT INCLUDE CIRCUMSTANCES
WHERE A PERSON HAS ATTACHED A WIRE OR CABLE TO EXTEND SERVICE
THAT THE PERSON HAS PAID FOR OR THAT HAS BEEN AUTHORIZED TO AN
ADDITIONAL OUTLET, OR WHERE THE CABLE OPERATOR HAS FAILED TO DISCONNECT
A PREVIOUSLY AUTHORIZED CABLE SERVICE.
(c) MODIFIES, ALTERS, OR MAINTAINS A MODIFICATION
OR ALTERATION TO A DEVICE INSTALLED OR CAPABLE OF BEING INSTALLED
WITH THE AUTHORIZATION OF A CABLE OPERATOR, WHICH MODIFICATION
OR ALTERATION IS FOR THE PURPOSE OF INTERCEPTING OR RECEIVING
CABLE SERVICE CARRIED BY SUCH CABLE OPERATOR WITHOUT AUTHORITY
FROM OR PAYMENT TO SUCH CABLE OPERATOR;
(d) POSSESSES WITHOUT AUTHORITY, WITH
THE INTENT TO RECEIVE CABLE OPERATOR SERVICES WITHOUT AUTHORIZATION
FROM OR PAYMENT TO A CABLE OPERATOR, A DEVICE OR PRINTED CIRCUIT
BOARD DESIGNED IN WHOLE OR IN PART TO FACILITATE THE FOLLOWING
ACTS:
(I) TO RECEIVE CABLE SERVICES OFFERED
FOR SALE OVER A CABLE SYSTEM; OR
(II) TO PERFORM OR FACILITATE THE PERFORMANCE
OF ANY ACT SET FORTH IN PARAGRAPHS (a) TO (c) OF THIS SUBSECTION
(2).
(e) MANUFACTURES, IMPORTS INTO THIS STATE,
DISTRIBUTES, SELLS, LEASES, OR OFFERS OR ADVERTISES FOR SALE OR
LEASE, WITH THE INTENT TO RECEIVE CABLE SERVICES OR WITH THE INTENT
TO PROMOTE THE RECEPTION OF CABLE SERVICES WITHOUT PAYMENT OR
AUTHORIZATION FROM A CABLE OPERATOR, ANY DEVICE, PRINTED CIRCUIT
BOARD, OR PLAN OR KIT FOR A DEVICE OR PRINTED CIRCUIT BOARD DESIGNED
IN WHOLE OR IN PART TO FACILITATE THE FOLLOWING ACTS:
(I) TO RECEIVE ANY CABLE SERVICES OFFERED
FOR SALE OVER A CABLE SYSTEM; OR
(II) TO PERFORM OR FACILITATE THE PERFORMANCE
OF ANY ACT SET FORTH IN PARAGRAPHS (a) TO (c) OF THIS SUBSECTION
(2).
(f) FAILS TO RETURN OR SURRENDER EQUIPMENT
USED TO RECEIVE CABLE SERVICE AND PROVIDED BY A CABLE OPERATOR,
AFTER SUCH SERVICE HAS BEEN TERMINATED FOR ANY REASON.
(3) Any violation
of this section is a class 2 misdemeanor.
THIS SECTION DOES NOT APPLY TO SATELLITE DISHES.
(4) ANY PERSON WHO VIOLATES THIS SECTION
COMMITS A CLASS 2 MISDEMEANOR.
SECTION 2. 184702,
Colorado Revised Statutes, is amended to read:
184702. Civil action
damages. (1) (a) A licensed
or duly permitted cable television
system OPERATOR may bring a civil
action for damages against any person who commits civil theft
of cable television
service.
(b) Civil theft of cable television
service is the willful or intentional commission of an
ANY act described in section 184701
(1) (a) or (1) (b) 184701
(2).
(c) NO PLAINTIFF THAT FILES AN ACTION
PURSUANT TO THIS SECTION FOR THEFT OF CABLE SERVICES SHALL BE
REQUIRED TO PLEAD DAMAGES WITH PARTICULARITY AS A CONDITION PRECEDENT
FOR MAINTAINING SUCH AN ACTION.
(d) THERE SHALL BE A REBUTTABLE PRESUMPTION
THAT A VIOLATION OF SECTION 184701 (2) (a) HAS OCCURRED
IF THERE EXISTS IN THE ACTUAL POSSESSION OF THE PERSON A DEVICE
THAT PERMITS THE RECEPTION OF UNAUTHORIZED CABLE SERVICES FOR
WHICH NO PAYMENT HAS BEEN MADE TO A CABLE OPERATOR AND NO LEGITIMATE
PURPOSE EXISTS.
(e) THERE SHALL BE A REBUTTABLE PRESUMPTION
THAT A VIOLATION OF SECTION 184701 (2) (b) HAS OCCURRED
IF CABLE SERVICE TO THE PERSON'S BUSINESS OR RESIDENTIAL PROPERTY
WAS DISCONNECTED BY A CABLE OPERATOR, NOTIFICATION OF SUCH ACTION
BY CERTIFIED MAIL WAS PROVIDED TO SUCH PERSON, AND A CONNECTION
OF SUCH SERVICE EXISTS AT SUCH PERSON'S BUSINESS OR RESIDENTIAL
PROPERTY AFTER THE DATE OF THE DISCONNECTION.
(f) THERE SHALL BE A REBUTTABLE PRESUMPTION
THAT A VIOLATION OF SECTION 184701 (2) (c) HAS OCCURRED
IF THE CABLE OPERATOR, AS A MATTER OF STANDARD PROCEDURE:
(I) PLACES WRITTEN WARNING LABELS ON ITS
CONVERTERS OR DECODERS EXPLAINING THAT TAMPERING WITH SUCH DEVICES
IS A VIOLATION OF LAW AND A CONVERTER OR DECODER IS FOUND TO HAVE
BEEN TAMPERED WITH, ALTERED, OR MODIFIED SO AS TO ALLOW THE RECEPTION
OR INTERCEPTION OF CABLE SERVICES WITHOUT AUTHORITY FROM OR PAYMENT
TO A CABLE OPERATOR; OR
(II) SEALS ITS CONVERTERS OR DECODERS
WITH A LABEL OR MECHANICAL DEVICE AND THE LABEL OR DEVICE HAS
BEEN REMOVED OR BROKEN.
(g) THERE SHALL BE A REBUTTABLE PRESUMPTION
THAT A VIOLATION OF SECTION 184701 (2) (d) HAS OCCURRED
IF A PERSON POSSESSES TEN OR MORE DEVICES OR PRINTED CIRCUIT BOARDS.
IF SUCH REBUTTABLE PRESUMPTION IS NOT OVERCOME, THE COURT SHALL
FIND THAT SUCH PERSON COMMITTED CIVIL THEFT OF CABLE SERVICE WILLFULLY
AND FOR PURPOSES OF COMMERCIAL ADVANTAGE OR PRIVATE FINANCIAL
GAIN AND SHALL INCREASE THE DAMAGES AWARD IN ACCORDANCE WITH PARAGRAPH
(a) OF SUBSECTION (3) OF THIS SECTION.
(h) THERE SHALL BE A REBUTTABLE PRESUMPTION
THAT A VIOLATION OF SECTION 184701 (2) (e) HAS OCCURRED
IF THE PERSON, WHILE ENGAGING IN ANY OF THE PROHIBITED ACTS, MADE
APPARENT TO THE BUYER THAT THE PRODUCT WOULD ENABLE THE BUYER
TO OBTAIN CABLE SERVICE WITHOUT PAYMENT TO A CABLE OPERATOR.
IF SUCH REBUTTABLE PRESUMPTION IS NOT OVERCOME, THE COURT SHALL
FIND THAT SUCH PERSON COMMITTED CIVIL THEFT OF CABLE SERVICE WILLFULLY
AND FOR PURPOSES OF COMMERCIAL ADVANTAGE OR PRIVATE FINANCIAL
GAIN AND SHALL INCREASE THE DAMAGES AWARD IN ACCORDANCE WITH PARAGRAPH
(a) OF SUBSECTION (3) OF THIS SECTION.
(i) THERE IS A REBUTTABLE PRESUMPTION
THAT A VIOLATION OF SECTION 184701 (2) (f) HAS OCCURRED
IF A CABLE OPERATOR MAILED BY CERTIFIED MAIL TO THE PERSON, AT
THE PROVIDED ADDRESS, A WRITTEN DEMAND REQUESTING THE RETURN OF
AN OPERATOROWNED CONVERTER, DECODER, OR OTHER DEVICE AND
THE PERSON FAILED TO RETURN SAID DEVICE OR TO MAKE REASONABLE
ARRANGEMENTS TO DO SO WITHIN FIFTEEN DAYS AFTER THE DATE OF SUCH
NOTICE. SUCH REASONABLE ARRANGEMENTS MAY INCLUDE REQUESTING THAT
THE CABLE OPERATOR COLLECT THE EQUIPMENT, SUBJECT TO THE CABLE
OPERATOR'S POLICIES.
(2) In any civil action brought pursuant
to this section, said
A cable television system
OPERATOR shall be entitled, upon proof of civil theft of cable
television
service, to recover THE GREATER OF THE FOLLOWING AMOUNTS as damages:
three times the amount of the actual
damages, if any, plus all reasonable expenses and costs incurred
on account of said theft, but not limited to costs and expenses
for investigation, disconnection, reconnections, service calls,
employees and equipment, and expert witnesses, costs of the suit,
and reasonable attorney fees pursuant to subsection (3) of this
section.
(a) FOUR THOUSAND DOLLARS; OR
(b) THREE TIMES THE AMOUNT OF ANY ACTUAL
DAMAGES SUSTAINED.
(3) (a) In
any action for civil theft of cable television service, the prevailing
party shall be entitled to an award for his reasonable attorney
fees. NOTWITHSTANDING ANY PROVISION
OF SUBSECTION (2) OF THIS SECTION TO THE CONTRARY, A COURT MAY
INCREASE THE AWARD OF DAMAGES IN ANY CIVIL ACTION BROUGHT PURSUANT
TO THIS SECTION BY AN AMOUNT OF NOT MORE THAN FIFTY THOUSAND DOLLARS
IF SUCH COURT FINDS THAT CIVIL THEFT OF CABLE SERVICE WAS COMMITTED
WILLFULLY AND FOR THE PURPOSE OF COMMERCIAL ADVANTAGE.
(b) IN ANY CIVIL ACTION DESCRIBED IN PARAGRAPH
(a) OF THIS SUBSECTION (3), A CABLE OPERATOR NEED NOT PROVE THAT
THE FINAL PURCHASER ACTUALLY USED THE DEVICE, PLAN, KIT, OR PRINTED
CIRCUIT BOARD WITHOUT AUTHORIZATION FROM OR PAYMENT TO A CABLE
OPERATOR.
(c) NO ATTEMPT BY A PERSON TO LIMIT OR
SHIFT LEGAL LIABILITY IN AN ACTION DESCRIBED IN THIS SUBSECTION
(3) BY REQUIRING PURCHASERS TO SIGN A DISCLAIMER ACKNOWLEDGING
THEIR RESPONSIBILITY TO REPORT USE OF A DEVICE, PLAN, KIT, OR
PRINTED CIRCUIT BOARD TO A CABLE OPERATOR SHALL BE EFFECTIVE,
AND ANY SUCH DISCLAIMER SHALL BE VOID.
(d) FOR PURPOSES OF THIS SUBSECTION (3),
"PRIVATE FINANCIAL GAIN" SHALL NOT INCLUDE THE MONETARY
GAIN REALIZED BY AN INDIVIDUAL AVOIDING MONTHLY CABLE SERVICE
BILLS AS A RESULT OF THE INDIVIDUAL'S PRIVATE USE OF UNAUTHORIZED
PROGRAMMING.
(4) In an
action for civil theft of cable television service, the existence
on the property and in the actual possession of the accused of
the following shall be prima facie evidence of his intent to commit
civil theft of cable television service and of his commission
of civil theft of cable television service: Any connection, wire,
or conductor, or any device whatsoever, which is connected in
such a manner as would appear to permit the use of cable television
service without the same being reported for payment to and specifically
authorized by the cable television system supplying the service.
IN ANY ACTION FOR CIVIL THEFT OF CABLE SERVICE, THE PREVAILING
PARTY SHALL BE AWARDED REASONABLE ATTORNEY FEES AND DIRECT COSTS
INCURRED AS A RESULT OF SUCH THEFT, INCLUDING, BUT NOT LIMITED
TO, THE COSTS OF ANY INVESTIGATION, DISCONNECTION OR RECONNECTION,
SERVICE CALLS, EMPLOYEES, EQUIPMENT, AND EXPERT WITNESSES AND
COSTS OF THE CIVIL ACTION.
(5) A CABLE OPERATOR MAY SEEK AN INJUNCTION
TO ENJOIN OR RESTRAIN A VIOLATION OF THIS SECTION AND DAMAGES
ARISING FROM SUCH VIOLATION IN THE SAME ACTION.
SECTION 3. Effective date
applicability. (1) This
act shall take effect at 12:01 a.m. on the day following the expiration
of the ninetyday period after final adjournment of the general
assembly that is allowed for submitting a referendum petition
pursuant to article V, section 1 (3) of the state constitution;
except that, if a referendum petition is filed against this act
or an item, section, or part of this act within such period, then
the act, item, section, or part, if approved by the people, shall
take effect on the date of the official declaration of the vote
thereon by proclamation of the governor.
(2) The provisions of this act shall apply to offenses committed on or after the applicable effective date of this act.
____________________________ ____________________________
Charles E. Berry Tom Norton
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Judith M. Rodrigue Patricia K. Dicks
CHIEF CLERK OF THE HOUSE ASSISTANT SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
_________________________________________
Roy Romer
GOVERNOR OF THE STATE
OF COLORADO