T.P.I. -- 11.33

T.P.I. -- 11.33

THEFT OF TELECOMMUNICATIONS SERVICES

Any person who commits the offense of theft of telecommunications services is guilty of a crime.

For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:¹

[Part A-1:

(1) that the defendant [made] [distributed] [possessed] [used]

[assembled] an unlawful telecommunications device;

and

(2) that the defendant acted knowingly.]

[Part A-2:

(1) that the defendant [modified] [altered] [programmed], [reprogrammed]

a telecommunication device;

and

(2)(a) that the telecommunication device was [designed] [adapted] [used]

for commission of a theft of telecommunication services;

(b) that the telecommunication device was [designed] [adapted] [used]

to [acquire] [facilitate the acquisition] of telecommunications service

without the consent of the telecommunication service provider;

to [conceal] [assist another to conceal] [from any

telecommunication service provider] [from any lawful authority] the

[existence] [place of origin] [destination] of any telecommunication;

and

(3) that the defendant acted knowingly.]

[Part B-1:

(1) that the defendant [sold] [possessed] [distributed] [gave] [transported]

[transferred to another] [[offered] [advertised] for sale] any [unlawful

telecommunication device] [plans or instructions for making or

assembling an unlawful telecommunication device];

and

(2) that the [sale] [possession] [distribution] [gift] [transportation] [transfer

to another] [[offer] [advertisement] for sale] was done [under

circumstances evincing an intent to use or employ the unlawful

telecommunication device, or to allow the same to be used or

employed, for a purpose of the commission of a theft of

telecommunication service or to acquire or facilitate the acquisition of

telecommunications service without the consent of the

telecommunication service provider; or to conceal, or 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

telecommunication] [knowing or having reason to know that the

aforesaid [plans] [instructions] were intended to be used for [making]

[assembling] the unlawful telecommunication device];

and

(3) that the defendant acted knowingly.]

[Part B-2:

(1) that the defendant [sold] [possessed] [distributed] [gave] [transported]

[transferred to another] [[offered] [advertised] for sale] material,

including hardware, cable, tools, data, computer software or other

information or equipment;

and

(2) that the defendant knew that the purchaser or a third person intended

to use the material in the manufacture of an unlawful

telecommunication device;

and

(3) that the defendant acted knowingly.]

[Part C:

(1) that the defendant published [plans] [instruction] for [making]

[assembling] [using] any unlawful telecommunication device with the

intent of promoting the making or assembling or using of an unlawful

telecommunications device:

and

(2) that the defendant acted knowingly.]

[Part D:

(1) that the defendant published the [[number] [code] of an [existing]

[canceled] [revoked] [nonexistent] [telephone number] [credit number]

[other credit device]] [method or coding which is employed in the

issuance of [telephone numbers] [credit numbers] [other credit

devices]];

and

(2) that the defendant had knowledge or reason to believe that the

[[number] [code] of an [existing] [canceled] [revoked] [nonexistent]

[telephone number] [credit number] [other credit device]] [method or

coding which is employed in the issuance of [telephone numbers]

[credit numbers] [other credit devices]] might be used to avoid the

payment of any lawful [telephone] [telegraph] toll charge under

circumstances evincing an intent to have the telephone number,

credit number, credit device or method of numbering or coding so

used;

and

(3) that the defendant acted knowingly.]

"Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.²

[The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.]³

"Intentionally" means a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.⁴

["Manufacture of an unlawful telecommunication device" means the production or assembly of an unlawful telecommunication device or the modification, alteration, programming or reprogramming of a telecommunication device to be capable of acquiring or facilitating the acquisition of telecommunication service with the consent of the telecommunication service provider.] ⁵

["Publish" means the communication or dissemination of information to any one (1) or more persons, either orally, in person or by telephone, radio or television, or in a writing of any kind, including without limitation a letter or memorandum, circular or handbill, newspaper or magazine article, or book, or electronically, including, without limitation, by computer, electronic mail, or paging device.]⁶

"Telecommunication device" means any type of instrument, device, machine or equipment that is 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 that is capable of facilitating the transmission or reception of telephonic, electronic or radio communications.⁷

["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, sounds or intelligence of any nature of telephone, including cellular or other wireless telephones, wire, radio, electromagnetic, photoelectronic or photo-optical system.]⁸

["Telecommunication service provider" means a person or entity providing telecommunication service, including a cellular, paging or other wireless communications 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.]⁹

["Unlawful telecommunication device" means any telecommunication device that is capable, or has been illegally 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 any electronic serial number, mobile identification number, personal identification number or any telecommunication service without the consent of the telecommunication service provider. The term includes scanners that are capable of intercepting electronic serial numbers, pin codes or mobile identification numbers. The term also includes telecommunications devices altered to obtain service without the consent of the telecommunication service provider, tumbler phones, 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. This section shall not apply to any device operated by a law enforcement agency or a wireless carrier in the normal course of its activities.]¹⁰

FOOTNOTES

1. Tenn. Code Ann. § 39-14-149.

2. Tenn. Code Ann. § 39-11-106(a)(20).

3. Tenn. Code Ann. § 39-11-301(a)(2).

4. Tenn. Code Ann. § 39-11-106(a)(18).

5. Tenn. Code Ann. § 39-14-149(c)(1).

6. Tenn. Code Ann. § 39-14-149(c)(2).

7. Tenn. Code Ann. § 39-14-149(c)(3).

8. Tenn. Code Ann. § 39-14-149(c)(4).

9. Tenn. Code Ann. § 39-14-149(c)(5).

10. Tenn. Code Ann. § 39-14-149(c)(6).

COMMENTS

1. A violation that results in the unlawful taking or acquisition of a telecommunication service is punished as theft of services and is graded as follows:

(a) a Class A misdemeanor if the value of the services obtained is $500 or less;

(b) a Class E felony if the value of the services obtained is more than $500 but less than $1,000;

(d) a Class C felony if the value of the property or services obtained is $10,000 or more but less than $60,000; and

(e) a Class B felony if the value of the property or services obtained is $60,000 or more. Tenn. Code Ann. § 39-14-149(d)(1); Tenn. Code Ann. § 39-14-105.

2. Tenn. Code Ann. § 39-14-149(d)(1) refers to Tenn. Code Ann. § 39-14-104. It is the committee's belief that the appropriate reference should be to Tenn. Code Ann. § 39-14-105.

3. A violation involving five (5) or more unlawful telecommunication devices is a Class D felony. Tenn. Code Ann. § 39-14-149(d)(2). In those cases involving five (5) or more unlawful telecommunication devices the trial judge should add another element to the offense in order for the jury to determine the number of devices involved.

4. Any other violation is a Class B misdemeanor. Tenn. Code Ann. § 39-14-149(d)(3).