47 U.S.C. § 605 — Unauthorized publication or use of commu-

Page 315 TITLE 47—TELECOMMUNICATIONS § 605 provided in Pub. L. 104–88, to Surface Transportation Board effective Jan. 1, 1996, by section 1302 of Title 49, Transportation, and section 101 of Pub. L. 104–88, set out as a note under section 1301 of Title 49. References to Interstate Commerce Commission deemed to refer to Surface Transportation Board, a member or employee of the Board, or Secretary of Transportation, as appro- priate, see section 205 of Pub. L. 104–88, set out as a note under section 1301 of Title 49. § 605. Unauthorized publication or use of commu- nications (a) Practices prohibited Except as authorized by chapter 119, title 18, no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, con- tents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney, (2) to a person employed or authorized to for- ward such communication to its destination, (3) to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, (4) to the master of a ship under whom he is serving, (5) in response to a subpena issued by a court of com- petent jurisdiction, or (6) on demand of other lawful authority. No person not being author- ized by the sender shall intercept any radio com- munication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any per- son. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein con- tained) for his own benefit or for the benefit of another not entitled thereto. No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, sub- stance, purport, effect, or meaning of such com- munication (or any part thereof) or use such communication (or any information therein con- tained) for his own benefit or for the benefit of another not entitled thereto. This section shall not apply to the receiving, divulging, pub- lishing, or utilizing the contents of any radio communication which is transmitted by any station for the use of the general public, which relates to ships, aircraft, vehicles, or persons in distress, or which is transmitted by an amateur radio station operator or by a citizens band radio operator. (b) Exceptions The provisions of subsection (a) shall not apply to the interception or receipt by any indi- vidual, or the assisting (including the manufac- ture or sale) of such interception or receipt, of any satellite cable programming for private viewing if— (1) the programming involved is not encrypted; and (2)(A) a marketing system is not established under which— (i) an agent or agents have been lawfully designated for the purpose of authorizing private viewing by individuals, and (ii) such authorization is available to the individual involved from the appropriate agent or agents; or (B) a marketing system described in sub- paragraph (A) is established and the individ- uals receiving such programming has obtained authorization for private viewing under that system. (c) Scrambling of Public Broadcasting Service programming No person shall encrypt or continue to encrypt satellite delivered programs included in the Na- tional Program Service of the Public Broad- casting Service and intended for public viewing by retransmission by television broadcast sta- tions; except that as long as at least one unencrypted satellite transmission of any pro- gram subject to this subsection is provided, this subsection shall not prohibit additional encrypted satellite transmissions of the same program. (d) Definitions For purposes of this section— (1) the term ‘‘satellite cable programming’’ means video programming which is trans- mitted via satellite and which is primarily in- tended for the direct receipt by cable opera- tors for their retransmission to cable sub- scribers; (2) the term ‘‘agent’’, with respect to any person, includes an employee of such person; (3) the term ‘‘encrypt’’, when used with re- spect to satellite cable programming, means to transmit such programming in a form whereby the aural and visual characteristics (or both) are modified or altered for the pur- pose of preventing the unauthorized receipt of such programming by persons without author- ized equipment which is designed to eliminate the effects of such modification or alteration; (4) the term ‘‘private viewing’’ means the viewing for private use in an individual’s dwelling unit by means of equipment, owned or operated by such individual, capable of re- ceiving satellite cable programming directly from a satellite; (5) the term ‘‘private financial gain’’ shall not include the gain resulting to any indi- vidual for the private use in such individual’s dwelling unit of any programming for which the individual has not obtained authorization for that use; and (6) the term ‘‘any person aggrieved’’ shall in- clude any person with proprietary rights in the intercepted communication by wire or radio, including wholesale or retail distribu- tors of satellite cable programming, and, in the case of a violation of paragraph (4) of sub- section (e), shall also include any person en- gaged in the lawful manufacture, distribution, or sale of equipment necessary to authorize or receive satellite cable programming. Page 316 TITLE 47—TELECOMMUNICATIONS § 605 (e) Penalties; civil actions; remedies; attorney’s fees and costs; computation of damages; reg- ulation by State and local authorities (1) Any person who willfully violates sub- section (a) shall be fined not more than $2,000 or imprisoned for not more than 6 months, or both. (2) Any person who violates subsection (a) willfully and for purposes of direct or indirect commercial advantage or private financial gain shall be fined not more than $50,000 or impris- oned for not more than 2 years, or both, for the first such conviction and shall be fined not more than $100,000 or imprisoned for not more than 5 years, or both, for any subsequent conviction. (3)(A) Any person aggrieved by any violation of subsection (a) or paragraph (4) of this sub- section may bring a civil action in a United States district court or in any other court of competent jurisdiction. (B) The court— (i) may grant temporary and final injunc- tions on such terms as it may deem reasonable to prevent or restrain violations of subsection (a); (ii) may award damages as described in sub- paragraph (C); and (iii) shall direct the recovery of full costs, including awarding reasonable attorneys’ fees to an aggrieved party who prevails. (C)(i) Damages awarded by any court under this section shall be computed, at the election of the aggrieved party, in accordance with either of the following subclauses; (I) the party aggrieved may recover the ac- tual damages suffered by him as a result of the violation and any profits of the violator that are attributable to the violation which are not taken into account in computing the actual damages; in determining the violator’s profits, the party aggrieved shall be required to prove only the violator’s gross revenue, and the vio- lator shall be required to prove his deductible expenses and the elements of profit attrib- utable to factors other than the violation; or (II) the party aggrieved may recover an award of statutory damages for each violation of subsection (a) involved in the action in a sum of not less than $1,000 or more than $10,000, as the court considers just, and for each violation of paragraph (4) of this sub- section involved in the action an aggrieved party may recover statutory damages in a sum not less than $10,000, or more than $100,000, as the court considers just. (ii) In any case in which the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advan- tage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $100,000 for each violation of sub- section (a). (iii) In any case where the court finds that the violator was not aware and had no reason to be- lieve that his acts constituted a violation of this section, the court in its discretion may reduce the award of damages to a sum of not less than $250. (4) Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any electronic, mechanical, or other device or equipment, knowing or having reason to know that the device or equipment is primarily of as- sistance in the unauthorized decryption of sat- ellite cable programming, or direct-to-home sat- ellite services, or is intended for any other ac- tivity prohibited by subsection (a), shall be fined not more than $500,000 for each violation, or im- prisoned for not more than 5 years for each vio- lation, or both. For purposes of all penalties and remedies established for violations of this para- graph, the prohibited activity established herein as it applies to each such device shall be deemed a separate violation. (5) The penalties under this subsection shall be in addition to those prescribed under any other provision of this subchapter. (6) Nothing in this subsection shall prevent any State, or political subdivision thereof, from enacting or enforcing any laws with respect to the importation, sale, manufacture, or distribu- tion of equipment by any person with the intent of its use to assist in the interception or receipt of radio communications prohibited by sub- section (a). (f) Rights, obligations, and liabilities under other laws unaffected Nothing in this section shall affect any right, obligation, or liability under title 17, any rule, regulation, or order thereunder, or any other ap- plicable Federal, State, or local law. (g) Universal encryption standard The Commission shall initiate an inquiry con- cerning the need for a universal encryption standard that permits decryption of satellite cable programming intended for private viewing. In conducting such inquiry, the Commission shall take into account— (1) consumer costs and benefits of any such standard, including consumer investment in equipment in operation; (2) incorporation of technological enhance- ments, including advanced television formats; (3) whether any such standard would effec- tively prevent present and future unauthorized decryption of satellite cable programming; (4) the costs and benefits of any such stand- ard on other authorized users of encrypted sat- ellite cable programming, including cable sys- tems and satellite master antenna television systems; (5) the effect of any such standard on com- petition in the manufacture of decryption equipment; and (6) the impact of the time delay associated with the Commission procedures necessary for establishment of such standards. (h) Rulemaking for encryption standard If the Commission finds, based on the informa- tion gathered from the inquiry required by sub- section (g), that a universal encryption standard is necessary and in the public interest, the Com- mission shall initiate a rulemaking to establish such a standard. (June 19, 1934, ch. 652, title VII, § 705, formerly title VI, § 605, 48 Stat. 1103; Pub. L. 90–351, title III, § 803, June 19, 1968, 82 Stat. 223; Pub. L. 97–259, title I, § 126, Sept. 13, 1982, 96 Stat. 1099; renumbered title VII, § 705, and amended Pub. L. Page 317 TITLE 47—TELECOMMUNICATIONS § 606 98–549, §§ 5(a), 6(a), Oct. 30, 1984, 98 Stat. 2802, 2804; Pub. L. 100–626, § 11, Nov. 7, 1988, 102 Stat. 3211; Pub. L. 100–667, title II, §§ 204, 205, Nov. 16, 1988, 102 Stat. 3958, 3959; Pub. L. 103–414, title III, §§ 303(a)(25)–(28), 304(a)(15), Oct. 25, 1994, 108 Stat. 4295–4297; Pub. L. 104–104, title II, § 205(a), Feb. 8, 1996, 110 Stat. 114.) Editorial Notes AMENDMENTS 1996—Subsec. (e)(4). Pub. L. 104–104 inserted ‘‘or di- rect-to-home satellite services,’’ after ‘‘programming,’’. 1994—Subsec. (d)(6). Pub. L. 103–414, § 303(a)(25), sub- stituted ‘‘subsection (e)’’ for ‘‘subsection (d)’’. Subsec. (e)(3)(A). Pub. L. 103–414, § 303(a)(26), sub- stituted ‘‘paragraph (4) of this subsection’’ for ‘‘para- graph (4) of subsection (d)’’. Subsec. (f). Pub. L. 103–414, § 303(a)(27), redesignated subsec. (f), relating to universal encryption standard, as (g). Subsec. (g). Pub. L. 103–414, § 304(a)(15), which directed substitution of ‘‘The Commission’’ for ‘‘within 6 months after November 16, 1988, the Federal Commu- nications Commission’’, was executed by making the substitution in text which read ‘‘Within 6 months’’ rather than ‘‘within 6 months’’ in introductory provi- sions to reflect the probable intent of Congress. Pub. L. 103–414, § 303(a)(27), redesignated subsec. (f), relating to universal encryption standard, as (g). Former subsec. (g) redesignated (h). Subsec. (h). Pub. L. 103–414, § 303(a)(27), (28), redesig- nated subsec. (g) as (h) and substituted ‘‘subsection (g)’’ for ‘‘subsection (f)’’. 1988—Subsecs. (c), (d). Pub. L. 100–626 added subsec. (c) and redesignated former subsec. (c) as (d). Former subsec. (d) redesignated (e). Subsec. (d)(6). Pub. L. 100–667, § 205(1), which directed the addition of par. (6) to subsec. (c), was executed to subsec. (d) to reflect the probable intent of Congress and the intervening redesignation of subsec. (c) as (d) by Pub. L. 100–626. Subsec. (e). Pub. L. 100–667, § 205(2)–(12), which di- rected the amendment of subsec. (d)(1) to (4) of this sec- tion, was executed to subsec. (e)(1) to (4) of this section, see below, to reflect the probable intent of Congress and the intervening redesignation of subsec. (d) as (e) by Pub. L. 100–626. Pub. L. 100–626 redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f). Subsec. (e)(1). Pub. L. 100–667, § 205(2), substituted ‘‘$2,000’’ for ‘‘$1,000’’. Subsec. (e)(2). Pub. L. 100–667, § 205(3), substituted ‘‘$50,000 or imprisoned for not more than 2 years, or both, for the first such conviction and shall be fined not more than $100,000 or imprisoned for not more than 5 years’’ for ‘‘$25,000 or imprisoned for not more than 1 year, or both, for the first such conviction and shall be fined not more than $50,000 or imprisoned for not more than 2 years’’. Subsec. (e)(3)(A). Pub. L. 100–667, § 205(4), inserted ‘‘or paragraph (4) of subsection (d)’’ before ‘‘may bring’’. Subsec. (e)(3)(B). Pub. L. 100–667, § 205(5)–(8), struck out ‘‘may’’ after ‘‘The court’’ and substituted ‘‘may grant’’ for ‘‘grant’’ in cl. (i), ‘‘may award’’ for ‘‘award’’ in cl. (ii), and ‘‘shall direct’’ for ‘‘direct’’ in cl. (iii). Subsec. (e)(3)(C)(i)(II). Pub. L. 100–667, § 205(9), in- serted ‘‘of subsection (a)’’ after ‘‘violation’’, sub- stituted ‘‘$1,000’’ for ‘‘$250’’, and inserted before period at end ‘‘, and for each violation of paragraph (4) of this subsection involved in the action an aggrieved party may recover statutory damages in a sum not less than $10,000, or more than $100,000, as the court considers just’’. Subsec. (e)(3)(C)(ii). Pub. L. 100–667, § 205(10), sub- stituted ‘‘$100,000 for each violation of subsection (a)’’ for ‘‘$50,000’’. Subsec. (e)(3)(C)(iii). Pub. L. 100–667, § 205(11), sub- stituted ‘‘$250’’ for ‘‘$100’’. Subsec. (e)(4). Pub. L. 100–667, § 205(12), added par. (4) and struck out former par. (4) which read as follows: ‘‘The importation, manufacture, sale, or distribution of equipment by any person with the intent of its use to assist in any activity prohibited by subsection (a) shall be subject to penalties and remedies under this sub- section to the same extent and in the same manner as a person who has engaged in such prohibited activity.’’ Subsec. (f). Pub. L. 100–667, § 204, added subsec. (f) re- lating to universal encryption standard. Pub. L. 100–626 redesignated subsec. (e), relating to rights, obligations, and liabilities under other laws, as (f). Subsec. (g). Pub. L. 100–667, § 204, added subsec. (g). 1984—Pub. L. 98–549, § 5(a), designated existing provi- sions as subsec. (a) and added subsecs. (b) to (e). 1982—Pub. L. 97–259 struck out ‘‘broadcast or’’ after ‘‘communication which is’’, substituted ‘‘any station’’ for ‘‘amateurs or others’’, struck out ‘‘or’’ after ‘‘gen- eral public,’’, and substituted ‘‘ships, aircraft, vehicles, or persons in distress, or which is transmitted by an amateur radio station operator or by a citizens band radio operator’’ for ‘‘ships in distress’’. 1968—Pub. L. 90–351 inserted ‘‘Except as authorized by chapter 119, title 18’’, designated existing provisions as cls. (1) to (6), inserted ‘‘radio’’ before ‘‘communication’’ in second and fourth sentences, struck out ‘‘wire or’’ before ‘‘radio’’ in third sentence, and substituted ‘‘intercepted’’ for ‘‘obtained’’ in fourth sentence. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–667 effective Jan. 1, 1989, see section 206 of Pub. L. 100–667, set out as an Effective Date note under section 119 of Title 17, Copyrights. EFFECTIVE DATE OF 1984 AMENDMENT Pub. L. 98–549, § 5(b), Oct. 30, 1984, 98 Stat. 2803, pro- vided that: ‘‘The amendments made by subsection (a) [amending this section] shall take effect on the effec- tive date of this Act [Dec. 29, 1984].’’ Amendment by Pub. L. 98–549 effective 60 days after Oct. 30, 1984, except where otherwise expressly pro- vided, see section 9(a) of Pub. L. 98–549, set out as an Ef- fective Date note under section 521 of this title. § 606. War powers of President (a) Priority communications During the continuance of a war in which the United States is engaged, the President is au- thorized, if he finds it necessary for the national defense and security, to direct that such com- munications as in his judgment may be essential to the national defense and security shall have preference or priority with any carrier subject to this chapter. He may give these directions at and for such times as he may determine, and may modify, change, suspend, or annul them and for any such purpose he is authorized to issue orders directly, or through such person or per- sons as he designates for the purpose, or through the Commission. Any carrier complying with any such order or direction for preference or pri- ority herein authorized shall be exempt from any and all provisions in existing law imposing civil or criminal penalties, obligations, or liabil- ities upon carriers by reason of giving pref- erence or priority in compliance with such order or direction. (b) Obstruction of interstate or foreign commu- nications It shall be unlawful for any person during any war in which the United States is engaged to