H. B. 2601
(By Delegates Staton, Amores, Smirl and Coleman)
[Introduced March 18, 1997; referred to the Committee on the
Judiciary.]
A BILL to amend and reenact section three, article three-d,
chapter sixty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
theft of cable television services; creating a misdemeanor
offense, penalties, a civil action and remedies for the
attachment, maintenance or use of devices to acquire
unauthorized cable for commercial gain or remuneration; and
to provide civil actions and remedies for the sale or
transfer of a device or plan intended for the acquisition
or diversion of unauthorized cable services.
Be it enacted by the Legislature of West Virginia:
That section three, article three-d, chapter sixty-one of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 3D. THEFT OF CABLE TELEVISION SERVICES.
§61-3D-3. Device or plan intended for acquisition or diversion;
penalties; civil action; remedies.
(a) A person who sells, gives or otherwise transfers to
another or offers, advertises or exposes for sale to another any device, mechanism, tool or printed circuit, or any kit, plan or
instructional procedure for the making of such device,
mechanism, tool or printed circuit, with the knowledge that
another will acquire cable television services in violation of
this article; or who attaches, maintains the attachment of or
uses any of the foregoing devices for the purpose of
remuneration or for commercial advantage, with the knowledge
that cable television services will be or are being acquired in
violation of this article, shall be guilty of a misdemeanor and
shall be punishable in accordance with subsection (b) of this
section, or shall be civilly liable in accordance with
subsection (c) of this section, or both: Provided, That the
provisions of this section do not apply to solely private use of
the foregoing devices.
(b) A person convicted of a misdemeanor under this section
shall be punished as follows:
(1) Upon a first conviction under this section, the
defendant shall be fined not less than two hundred fifty
dollars, nor more than five hundred dollars.
(2) Upon a second conviction under this section, the
defendant shall be fined not less than five hundred dollars, nor
more than one thousand dollars, or imprisoned in the county jail
not more than thirty days, or both fined and imprisoned.
(3) Upon a third conviction under this section, the
defendant shall be fined not less than five hundred dollars, nor
more than one thousand dollars, or imprisoned in the county jail
not less than sixty days, nor more than one year.
(c) Any cable operator, cable system or other aggrieved
party may bring an action in any court of competent jurisdiction to enjoin and restrain any violation of the provisions of this
section, or may bring a civil action for damages, or both. In
a civil action, any defendant who is found to have violated this
section by a preponderance of the evidence shall be civilly
liable to the cable operator, cable system or other aggrieved
party in the following amounts:
(1) Upon a first violation of this section, the greater of
five thousand dollars or double the amount of actual damages
sustained by the aggrieved party; and any profits which the
defendant received as a result of the violation; and reasonable
attorney's fees and costs.
(2) Upon a second or subsequent violation of this section,
the greater of ten thousand dollars or three times the amount of
actual damages sustained by the aggrieved party; and any profits
which the defendant received as a result of the violation; and
reasonable attorney's fees and costs.
It is not a necessary prerequisite for a civil action
pursuant to this subsection that the defendant be indicted,
charged or convicted in a criminal action for the offense giving
rise to civil liability; nor that the cable operator, cable
system or other aggrieved party has suffered, or be threatened
with, actual damages. The adoption of civil remedies under this
subsection does not preclude the cable operator, cable system,
or other aggrieved party from bringing other actions at common
law or provided for by other sections of this code.
NOTE: The purpose of this bill is to create a misdemeanor
offense, penalties and civil remedies for the attachment or use
of devices to acquire unauthorized cable for commercial gain or
remuneration and to provide civil actions and remedies for the
sale or transfer of a device or plan intended for the acquisition or diversion of unauthorized cable services.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.