ADT Security Services, Inc. v. Lisle-Woodridge Fire Protection District , 724 F.3d 854 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12-2925 and 12-2981
ADT S ECURITY S ERVICES, INC. et al.,
Plaintiffs-Appellees,
v.
L ISLE-W OODRIDGE F IRE P ROTECTION D ISTRICT and
C HICAGO M ETROPOLITAN F IRE P REVENTION C OMPANY,
Defendants-Appellants,
and
D UP AGE P UBLIC S AFETY C OMMUNICATIONS,
Intervening-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CV 04382—Milton I. Shadur, Judge.
A RGUED A PRIL 22, 2013—D ECIDED JULY 31, 2013
Before W OOD , T INDER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. In this case we revisit factual
and legal issues concerning the Illinois law establishing
2 Nos. 12-2925 and 12-2981
fire protection districts and one district’s effort to shut
down the private market in fire alarm monitoring
services by substituting for it a less safe and less
reliable system operated by just one chosen vendor.
In 2009 the Lisle-Woodridge Fire Protection District
passed an ordinance under which it took over fire
alarm monitoring for all commercial properties in the
District. The private alarm companies that had previously
provided those services in the District sued, alleging
that the ordinance interfered with their business,
created an illegal monopoly for the District, violated
their constitutional rights, and exceeded the District’s
statutory powers. In an earlier appeal from the district
court’s first order permanently enjoining the District
from implementing the ordinance and granting sum-
mary judgment for the alarm companies, we affirmed
in part, reversed in part, and remanded, finding on
review of summary judgment that the District had the
authority to enforce parts of the 2009 ordinance. We
remanded for the district court to revise its permanent
injunction. ADT Security Svcs., Inc. v. Lisle-Woodridge Fire
Protection District, 672 F.3d 492 (7th Cir. 2012).
On remand the district court held a four-day evidentiary
hearing. The district court issued a modified permanent
injunction that was based on new factual findings that
are more detailed and differ somewhat from the limited
summary judgment record upon which we based our
2012 decision. The District now appeals from the
revised permanent injunction order with a long list of
objections, but it argues primarily that the revised perma-
nent injunction conflicts with our 2012 decision.
Nos. 12-2925 and 12-2981 3
In our 2012 decision, we preserved much of the
District’s authority to enforce its ordinance. But the
evidentiary hearing following our remand showed that
many material facts are actually different from what
we had to assume when we reviewed the grant of sum-
mary judgment, particularly with regard to the statutory
authority for and the motivation and efficacy of the Dis-
trict’s plan. We therefore find, with a few minor excep-
tions, that the modified permanent injunction was a
sound exercise of the district court’s discretion. We
affirm the injunction with a few modifications.
I. Factual and Procedural Background
A. The Parties and Alarm Signaling and Monitoring
Appellant Lisle-Woodridge Fire Protection District
(“the District”) is a specific type of municipal entity
established by the Illinois Fire Protection District Act (“the
Act”), 70 Ill. Comp. Stat. 705/1 et seq. The District pro-
vides fire protection services to residents in the villages
of Lisle and Woodridge, Illinois, and other unincorporated
parts of DuPage County. Under the Act, the District has
the power to set fire codes and to establish standards
for fire alarm and dispatching services. 70 Ill. Comp. Stat.
705/6(i), 705/11. The District funds its work through
taxes and is governed by a board of trustees. See 705/14.
The District does not receive fire alarms directly. Rather,
fire alarms within the District are received and dis-
patched by intervening appellant DuPage Public Safety
Communications, also known as “Du-Comm.” Du-Comm
4 Nos. 12-2925 and 12-2981
is an inter-governmental entity made up of 28 member
police and fire agencies in DuPage County, including
the District. Du-Comm provides emergency dispatch
services to those member agencies.
The plaintiff-appellees are private alarm companies
that provide alarm and monitoring services to com-
mercial properties in the District. For example, a ware-
house, office building, or apartment complex may
contract with an alarm company to install and monitor a
building-wide alarm system. That system receives a fire
alarm signal at the building’s main alarm board from
a smoke detector in the building and then transmits
that signal to the local dispatcher to send emergency
services. The alarm companies also provide monitoring
services: in addition to fire alarm signals, the
alarm boards also send “trouble” and “supervisory”
signals, which indicate to the alarm companies either
that the alarm board is not functioning or that someone
at the premises has interfered with the system (e.g., shut
off a water valve supplying the sprinkler system).
The alarm companies receive the signals at “Central
Stations,” which need not be geographically close to the
customer’s premises. Often an alarm company will have
one company-wide Central Station that it uses to
receive and send dispatch signals for all of its customers.
Prior to this litigation, the plaintiff alarm companies
provided alarm and monitoring services to their cus-
tomers as follows: smoke and fire detectors in a building
would send a signal to the alarm panel in the building,
the alarm panel’s communication device would send a
Nos. 12-2925 and 12-2981 5
signal to the alarm company’s Central Station, and an
operator at the Central Station would make a telephone
call to Du-Comm for dispatching. An alternative to this
“Central Station” model for fire alarm systems is the
“Remote Supervising Station” model in which fire alarm
and monitoring signals are transmitted from buildings
to a facility other than a Central Station, such as a munici-
pal dispatch board.
B. The 2009 Ordinance
In September 2009, the District passed an ordinance
that attempted to overhaul alarm signaling and
monitoring in the District. The ordinance required all
commercial property owners to terminate their contracts
with private alarm companies and instead to adopt and
pay for an alarm and monitoring system provided by
the District. Under the new system, alarm boards at
commercial properties would be equipped with wireless
transmitters owned by the District that would transmit
alarm, trouble, and supervisory signals to a receiving
unit located at the District’s Fire Station 3. The receiving
unit at Station 3 would automatically transmit the
signals to another receiving unit at Du-Comm, which
would then dispatch the relevant emergency response.
The District claimed that it switched to this system,
which the District deemed a Remote Supervising Station
system, because it was experiencing outages and other
problems with the plaintiffs’ private monitoring through
Central Stations, including that alarm notifications were
6 Nos. 12-2925 and 12-2981
delayed and trouble signals indicating outages did not
trigger prompt responses. DC-360 at 3; Freeman 265.1
District officials claimed that the new system would
provide two main advantages over the signaling and
monitoring provided by the private alarm companies:
(1) it was entirely wireless and automated, eliminating
the need for a human-operated telephone call from a
Central Station to Du-Comm and decreasing the time it
took to respond to alarms, and (2) it connected all
signals directly to the District’s own board, allowing
the District to monitor all signals and to ensure that
all outages were addressed.
The District took bids from several companies to set
up the system and provide the wireless transmitters. It
settled on a company called Chicago Metropolitan Fire
Prevention Company — also a defendant and appellant
here. Chicago Metro would supply the transmission
equipment: AES/Keltron-manufactured wireless radio
transmitters for all the properties, the District’s receiving
unit at Station 3, and the second receiving unit at Du-
Comm. (AES and Keltron radios are synonymous.
Coveny 367.) The District sent a notice to all commercial
property owners in the District, informing them that
1
References to the district court docket are noted “DC-[docket
number],” references to the Modified Permanent Injunction,
found in the Appellants’ appendices are noted “MPI [page
number],” and references to the transcript of the evidentiary
hearing held May 24-29, 2012 are noted “[Witness name] [page
number].” Those transcripts are docket numbers 343-45.
Nos. 12-2925 and 12-2981 7
the new ordinance had been adopted and that they
would now be charged $66 per month for the alarm
and monitoring services and for the radio transmitter
and its maintenance. The notice also boldly informed
subscribers: “If you are under contract for monitoring
with another vendor, our ordinance now supersedes
those contracts and makes them null and void.”
C. Proceedings Before the District Court
The alarm companies quickly filed suit in the Northern
District of Illinois, alleging that the ordinance violated
federal antitrust laws and federal constitutional
guarantees of equal protection, due process, and the
right to contract, and that the District did not have the
legal authority to enact the ordinance under the Illinois
Fire Protection District Act. On July 20, 2011, the District
Court granted the alarm companies’ motion for partial
summary judgment, and on August 16, 2011 entered a
permanent injunction enjoining the District from
enforcing and implementing the Ordinance. The
District and Chicago Metro appealed both the summary
judgment order and the permanent injunction.
D. This Court’s 2012 Opinion
On February 27, 2012, we issued an opinion (“ADT I”),
reversing in part and remanding for further proceedings.
See 672 F.3d 492 (7th Cir. 2012). We held that the District
was authorized under the Act to require buildings to be
8 Nos. 12-2925 and 12-2981
connected directly to its dispatching center and to
require that the transmission network be wireless, but
we found that the District was not authorized under
the Act to be the sole provider of the necessary equip-
ment. In essence, we found that the District had fairly
broad authority in its capacity as a fire safety regulator
but little if any authority to step in as a participant (or
the sole participant) in the competitive market for com-
mercial fire alarm signaling and monitoring services.
Looking first to the District’s authority under the Act,
we held that the Act permitted the District to require
property transmitters to connect directly to the District’s
own receiving board and to require that the transmission
system be wireless. Section 11 of the Act permits fire
protection districts to “adopt and enforce fire preven-
tion codes and standards parallel to national standards.”
70 Ill. Comp. Stat. 705/11. We interpreted “parallel” to
mean that the District could choose to require one ac-
ceptable option where national standards contemplated
several acceptable options. ADT I, 672 F.3d at 501.
In the fire protection world, national standards
include the National Fire Protection Association’s
“NFPA 72: National Fire Alarm and Signaling Code” (the
“Code”). The Code contemplates the use of either a
Remote Supervising Station system or a Central Station
system. See NFPA 72 § 8.2, 8.4 (2002).2 Given these options,
2
In our 2012 decision we used the 2010 version of the Code,
but as we will explain below, the 2002 version is the relevant
(continued...)
Nos. 12-2925 and 12-2981 9
we applied our interpretation of “parallel” to mean that
it was within the scope of the District’s authority under
the Act to require the use of a Remote Supervising
Station system to the exclusion of Central Stations. The
Code permitted the use of either Central Stations or a
Remote Supervising Station, and the District’s system was
a Remote Supervising System. We applied the same
interpretation of section 11 to the District’s wireless
requirement and found that it too was “parallel” to the
NFPA Code, which lists wireless radios as one
acceptable method of transmitting signals. See ADT I, 672
F.3d at 502, citing NFPA 72 § 26.6.2.4.1 (2010); see also
NFPA 72 § 8.5.2.4.1 (2002).
We affirmed the district court’s grant of summary
judgment to the extent it held that the District could not
anoint itself or its chosen vendor as the exclusive
provider of the wireless radio transmitters. We found
that the Code did not authorize districts to do so and
instead made property owners responsible for the equip-
ment at their property. ADT I, 672 F.3d at 503 (“The
District, by making itself the sole purveyor, installer,
inspector, tester, and maintainer of the necessary radio
transmitter equipment, has usurped responsibilities
the NFPA code accords to property owners.”).
We remanded to the district court for further proceed-
ings in light of these holdings and to address the issues
2
(...continued)
edition. The sections we relied on in ADT I are substantially
similar in the 2002 edition.
10 Nos. 12-2925 and 12-2981
remaining before the district court. We did not reach
all remaining issues, but we addressed several issues to
guide the district court in future proceedings. We noted
that the District would not likely have an “effective
monopoly” on monitoring and equipment if wireless
transmitters other than the District’s Keltron units
would be compatible with the system, which it seemed
to us was likely. We also noted that we interpreted the
Act as not permitting the District to charge service fees
to its residents beyond the taxes it is authorized to collect.
E. Proceedings on Remand
Upon remand, the district court held an evidentiary
hearing to resolve factual disputes relevant to modifying
the permanent injunction in light of our opinion. The
court heard four days of testimony. Plaintiffs’ witnesses
included Louis Fiore, a consultant on alarm monitoring
and a special expert to the NFPA, and Edward Bonifas,
vice president of plaintiff Alarm Detection Systems.
Defendants’ witnesses included Thomas Freeman, Chief
of the District, James French, the District’s Bureau Chief
for Fire Prevention, Lawrence Coveny of Chicago
Metro, and Brian Tegtmeyer, the executive director of Du-
Comm. Only Fiore was found to be an expert witness. See
Tr. 53, 138-39 (district court permitted Fiore to testify as
expert witness; plaintiffs’ counsel withdrew Bonifas as
opinion witness).3
3
Appellants argue that the district court abused its discretion
in treating Fiore as an expert because the alarm companies
(continued...)
Nos. 12-2925 and 12-2981 11
After the hearing the district court ordered the parties
to submit proposed findings of fact and proposals for
a modified permanent injunction. On July 6, 2012 — seven
days before the District’s submissions were due — the
District passed a new ordinance. DC-360 at 2; Joint Sepa-
rate App. 66-75. The new ordinance repealed the 2009
ordinance and replaced it with a modified set of require-
ments. Under the new 2012 ordinance, the District would
not own any transmitters and would permit property
owners to contract with private companies for alarm
transmission and monitoring and the necessary equip-
ment. But the signals would still need to be transmitted via
the District’s wireless network to the District’s receiver
at Station 3 to be transmitted to the receiver at Du-Comm.
Under this arrangement, the District would collect no
fees from property owners but Du-Comm would
(...continued)
did not provide an expert report prior to the hearing. See Fed.
R. Civ. P. 26(a)(2)(B). But appellants had received Fiore’s
affidavit over a month before the hearing, and it covered
substantially the same ground as his direct testimony. See DC-
287, Ex. 1. The purposes of Rule 26(a)(2) were satisfied because
the appellants had ample time to prepare for Fiore’s testimony
at the hearing and there was no showing of unfair surprise.
To the extent that there were any discrepancies between his
testimony and his affidavit, such differences were harmless.
See Banister v. Burton, 636 F.3d 828, 833 (7th Cir. 2011) (failure
to file 26(a)(2)(B) report was harmless where opposing party
was not surprised by the content of the testimony). The
district court did not abuse its discretion in allowing Fiore
to testify as an expert witness.
12 Nos. 12-2925 and 12-2981
collect fees on its behalf. The District argued before the
district court that the new ordinance mooted the con-
troversy; the plaintiff alarm companies disagreed.
F. Modified Permanent Injunction
On August 7, 2012, the District Court entered a
Modified Permanent Injunction Order and issued ac-
companying factual findings and conclusions of law.
The court adopted the alarm companies’ findings of
fact, conclusions of law, and proposed injunction provi-
sions. In essence, the Modified Permanent Injunction 4
required the District to permit the alarm companies
to receive and transmit signals directly from property
alarm boards (independently of the District) and to re-
transmit those signals to Du-Comm via Central Stations.
Specifically, the injunction barred the District from:
requiring that any fire signals be sent to Station 3
(instead it required that Station 3 be shut down), charging
residents for fire protection services (including any fees
charged by Du-Comm), selling or leasing fire alarm system
equipment, and prohibiting signals from properties from
being sent to Central Stations. The injunction required
the District: to allow alarm companies to use any technol-
ogy equivalent to wireless transmission and compliant
with the NFPA code, to adopt the most current version
of the NFPA code, to refund to property owners fees
4
We refer to the Modified Permanent Injunction simply as
the “injunction,” because it is the injunction we are reviewing
in this opinion.
Nos. 12-2925 and 12-2981 13
collected by the District since the 2009 ordinance took
effect, to direct Du-Comm to cooperate with the
alarm companies so it could receive wireless signals
directly from Central Stations, and to direct Du-Comm
to pre-populate its computer database with names and
addresses of the private alarm companies’ customers
to decrease response times.
The injunction also prohibited the District from
enforcing the new ordinance and redacted the 2009 ordi-
nance in accordance with its provisions. The district
court explained that, although many of the new
provisions of the injunction seem to conflict with ADT I,
that was because many of the factual assumptions that
we had to make in ADT I turned out to be unsupported
by the evidence presented at the hearing. The district
court issued a separate memorandum explaining why
the new ordinance did not moot the controversy.
The District and Chicago Metro appealed. 5 They each
point to many supposed flaws in the injunction and the
accompanying findings of fact and conclusions of law.
Most of their arguments do not persuade us. Rather, we
agree with the district court that the new ordinance did
5
The District also sought a stay of the injunction from this
Court, which we denied in part but granted to the extent that
the injunction required the District to refund the fees it
collected from resident subscribers. ADT Securities, Inc. v. Lisle-
Woodridge Fire Protection District, Order, No. 12-2925; 12-2981
(7th Cir. Sept. 11, 2012) (dismissing Nos. 12-2219 and 12-2220
as moot).
14 Nos. 12-2925 and 12-2981
not effectively moot this controversy. We also find no
clear error in the district court’s factual findings.
Instead, the facts found by the district court after the
evidentiary hearing persuade us that, while the legal
principles of ADT I still stand, given the actual facts
here, the new injunction sets appropriate boundaries
for the District and does not contravene ADT I in most of
the ways that the appellants argue. However, we
find that several parts of the injunction exceed the
proper scope of injunctions. We modify the injunction
by striking the portions requiring the District to refund
fees to subscribers and requiring the District to adopt
the most current versions of the NFPA code. We thus
affirm the injunction with a few modifications.
II. Discussion
The numerous arguments raised by the District and
Chicago Metro on appeal fall into several categories.
They argue that the injunction: (1) contravenes ADT I by
barring the District from enforcing its direct-connect
requirement, (2) exceeds the proper scope of injunctions
by binding a non-party (Du-Comm) and awarding relief
to non-parties (refunds to subscribers), and (3) ignores
the 2012 ordinance that supposedly mooted the contro-
versy or at least should have replaced the 2009 ordinance
in the district court’s analysis.
We have jurisdiction under 28 U.S.C. § 1292 to review
an appeal from an injunction. (Several claims remain
pending before the district court, so there has been no
Nos. 12-2925 and 12-2981 15
final judgment.) We review the district court’s factual
findings for clear error, its entry of the injunction for
abuse of discretion, and its legal conclusions de novo. See
Knapp v. Northwestern Univ., 101 F.3d 473, 478 (7th
Cir. 1996).
Based on the facts revealed at the evidentiary hearing,
we find that the injunction is generally appropriate
and not an abuse of discretion. When we first heard this
case in ADT I, we reviewed the district court’s grant
of summary judgment. We were required to view the
evidence and disputed facts in a light most favorable to
the District and Chicago Metro. But the evidentiary
hearing revealed many material facts to be quite
different in reality from the inferences we were
required to draw in the District’s favor in ADT I,
including such critical issues as the District’s motive in
enacting the ordinance, the efficacy of the new system,
and the District’s authority to implement the new sys-
tem. The District and Chicago Metro object to
many of these findings on appeal, but we reject
those arguments.
Based on these findings, we find that the major elements
of the injunction — shutting down the District’s Station 3
and permitting private Central Stations to receive and
transmit alarm signals — were well within the district
court’s discretion. Commercial properties in the District
must have some form of fire alarm monitoring, but the
District’s plans and requirements for such services
are beyond the District’s legal authority, so it was appro-
priate for the district court to require the District to
16 Nos. 12-2925 and 12-2981
permit private alarm companies to provide that essential
service. Moreover, the facts have revealed that the Dis-
trict’s system is less reliable and more dangerous than
the private alarm companies’ systems, does not comply
with NFPA standards, and interferes with the plaintiffs’
ability to serve their customers.
The 2012 ordinance did not remedy these ills so as
to render this dispute moot. It would have the effect of
continuing to block the alarm companies from
providing alarm monitoring services to customers in
the District. To the extent the injunction includes Du-
Comm even though it is not a party, we find that
the injunctive measures involving Du-Comm are appro-
priate because Du-Comm expressed its willingness
to cooperate in the ways required by the injunction. If Du-
Comm does not follow through, the district court may
need to determine Du-Comm’s exact status with respect
to the injunction, including whether it might be
deemed an agent of the District and already subject to
contempt powers, but we hope that will not be necessary.
Despite our approval of the core elements of the modified
injunction, we take issue with a few of its ancillary ele-
ments.
A. Mootness
We first address the threshold question of whether
the 2012 ordinance mooted this dispute. See Pakovich v.
Verizon LTD Plan, 653 F.3d 488, 492 (7th Cir. 2011). The
District argues that its eleventh-hour repeal of the 2009
ordinance and replacement of it with the new ordinance
Nos. 12-2925 and 12-2981 17
mooted the entire controversy. The District argues
both that the new ordinance rendered the modified
permanent injunction moot and that, at a minimum, the
district court erred by not analyzing the new ordinance
instead of the 2009 ordinance. We find that the 2012
ordinance does not moot the dispute over the
modified permanent injunction. The alarm companies
would still face a variety of injuries stemming from
the new ordinance.
The problem of mootness posed by a defendant’s change
in policy or practice poses a recurring problem when
injunctive relief is sought. “[T]he mere cessation of the
conduct sought to be enjoined does not moot a suit to
enjoin the conduct, lest dismissal of the suit leave the
defendant free to resume the conduct the next day.”
Chicago United Indus., Ltd. v. City of Chicago, 445 F.3d 940,
947 (7th Cir. 2006), citing Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000).
But a case may still be moot if there is no reasonable
expectation that the wrong will be repeated. Chicago
United Industries, 445 F.3d at 947-49 (finding it “highly
unlikely” that city would continue to deprive contractor
of fair hearing, but case was not moot with regard to
damages award).
Specifically, “[t]he complete repeal of a challenged law
renders a case moot, unless there is evidence creating a
reasonable expectation that the City will reenact the
ordinance or one substantially similar.” Fed’n of Adver.
Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924,
930 (7th Cir. 2003). We apply a rebuttable presumption
18 Nos. 12-2925 and 12-2981
that government actors will not repeat objectionable
behavior after an injunction is lifted. Id., citing City of
Mequite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)
(case not moot where possibility remained that city
would reenact previously enjoined ordinance language).
This presumption can be rebutted if a local government
reenacts provisions substantially similar to those
initially repealed. See 13C Charles Alan Wright & Arthur
R. Miller, et al., Fed. Prac. & Proc. § 3533.6 (3d ed.) (“repeal
followed by reenactment of provisions similar to those
repealed does not moot a continuing challenge”), citing
Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 936 n.8
(9th Cir. 2002) (new ordinance and repeal of challenged
ordinance while appeals were pending did not moot
appeals where “core disputes between the parties
remain[ed]”).
Here, the new 2012 ordinance did not resolve the dis-
putes between the parties. Under the new ordinance,
alarm companies are permitted to receive alarm and
monitoring signals at Central Stations, but they must
transmit those signals to Station 3 via the District’s
wireless network so that the signals would then be sent
from Station 3 to Du-Comm for dispatching. The District
claims that the new ordinance removes the District
itself from the monitoring business and permits the
alarm companies to provide those services to customers
in the District. But the new ordinance keeps several
requirements from the original ordinance that would
continue to injure the alarm companies by effectively
blocking them from monitoring in the District or that
are beyond the District’s authority to impose.
Nos. 12-2925 and 12-2981 19
The first and most obvious is that the new ordinance
keeps Station 3 as a central part of the District’s
monitoring plan. Under the new ordinance, according to
the District, signals would be sent by Central Stations to
Station 3 and then transmitted to Du-Comm. As we
explain below, Station 3 does not meet the basic safety
requirements to function as an intermediary station
under the Code. The arrangement under the new
ordinance would place even more of the fire alarm sys-
tem’s essential connections at the unsupervised Station 3
without back-up equipment than the original ordinance
would have. This new requirement is not “parallel” to
the Code and therefore is not within the District’s
authority to require under the Act. See 70 Ill. Comp.
Stat. 705/11.
Second, to provide alarm monitoring and signaling,
the alarm companies must join the District’s wireless
network. This network is accessible with only one
specific type of transmitter, which is not the type the
alarm companies use. See Coveny 376, 439. Although
the alarm companies proposed using several other types
of radios in an attempt to work with the District’s
wireless requirement, none are compatible with the
type of network and receiver used at Station 3. Id. at 383-
385. In fact, the new ordinance specifically states that
alarm companies will have to transmit all their signals
to a “Keltron 703 Communications Board” to gain access
to the District’s system. This requirement means that
alarm companies must either replace all of their existing
equipment and transmission technology or they cannot
provide alarm monitoring services to customers in the
20 Nos. 12-2925 and 12-2981
District. See Coveny 439. Excluding alarm companies
from the monitoring business or making it unduly burden-
some for them to participate raises significant concerns
about the anti-competitive effects of this requirement, and
the new ordinance perpetuates rather than solves
this problem.
Third, although the new ordinance technically permits
the alarm companies to receive alarm signals at Central
Stations, it requires the alarm and monitoring signals
also to be sent simultaneously to the District’s Station 3.
Besides the fact that Station 3 does not comply with the
Code, this requirement is problematic because current
alarm transmitters for commercial properties generally
are incapable of sending two signals simultaneously
(i.e., one to the Central Station and one to Station 3).
Bonifas 180-81. Plaintiffs’ witness Bonifas stated that
such dual monitoring is “absolutely not” feasible, because
in the District “there is an installed population of alarm
panels already in place,” a few of which may have the
capability of adding equipment to allow two outputs,
but the “vast majority will not.” Id. He also explained
that, when the District said that dual monitoring was
possible, it used the example of Wal-Mart, which is a
proprietary system and “has control of the alarm equip-
ment that they buy,” and “can choose a product that
automatically has two outputs and hang two transmit-
ters on it and make it work.” Bonifas 180.
Without dual monitoring, alarm companies are effec-
tively precluded from monitoring their equipment
at protected properties because existing transmitters
Nos. 12-2925 and 12-2981 21
will be able to send only one signal and the new
ordinance requires that a signal be sent to Station 3. The
District’s solution for this under the new ordinance is
that the alarm companies would receive trouble and
supervisory signal notifications in batch emails from the
District. But this would not allow the companies to re-
spond properly to these signals. Bonifas described his
company’s procedures for servicing broken equipment
in response to trouble signals, and he explained that an
email-based system is not compatible with this because
emails will not populate the service logs for technicians
in the field. Bonifas 155-56; see also id. at 215-16
(“Email would not put the history into the computer
where we operate our entire 30,000 account base to our
service technicians and dispatch them and let them see
what has happened with the system.”); id. at 184
(“We wouldn’t be able to populate our service log
and make sure that people get out and restore it, as well
as the little tablet in the technician’s hands.”). Like
the wireless network requirement, this requirement
would effectively preclude the alarm companies from
providing monitoring services and raises serious con-
cerns about the anti-competitive effects of the new ordi-
nance.
Thus, there is a reasonable expectation both that the
alarm companies’ complaints will not be satisfied by
the new ordinance and that the new ordinance still
exceeds the scope of the District’s legal authority. The
2012 ordinance did not moot the dispute.
22 Nos. 12-2925 and 12-2981
B. Factual Findings
In ADT I, we reviewed a grant of summary judgment,
so the District benefitted from factual inferences in
its favor and an under-developed record, particularly
with regard to how the District’s plan would address
its concerns about the safety and efficacy of alarm moni-
toring in the District. See 672 F.3d at 496. But the
facts found at the evidentiary hearing cast the District’s
actions in a very different light. Specifically, we have
since learned that under the District’s monitoring,
building alarm boards were out of service at a higher
rate than under the alarm companies’ monitoring. Al-
though the District’s signals were responded to in a
shorter time than those sent from Central Stations, that
advantage easily could be achieved for signals sent
from Central Stations too. And the District’s wireless
network operated on a frequency less reliable than
typical fire alarm network frequencies.6 The district court
6
Other evidence that has come to our attention since ADT I
suggests that the District may have been motivated to adopt the
ordinance not only for the purported safety improvements,
but also for financial gain. A PowerPoint presentation to the
District’s Board proposing the ordinance noted the “revenue
stream” as an advantage of a “District-Owned Network,” and
emails from Keltron to a Municipal Alarm Board Forum
encouraged the District to adopt its own network because
“without the revenue being collected specifically from alarm
subscribers for receiving alarm service, municipalities will
be laying off dispatchers firemen inspectors and other people
(continued...)
Nos. 12-2925 and 12-2981 23
did not clearly err in adopting factual findings based
on these revelations. See MPI Factual Findings ¶¶ 53, 59-
60, 74-76.
1. System Reliability
Before the District took over all alarm monitoring
with the ordinance, the alarm companies received moni-
toring signals through Central Stations and would send
a technician out to assess and repair the alarm equip-
ment. Edward Bonifas, an executive of one of the
plaintiff alarm companies, described how his company
would respond to these signals: “Under trouble signal we
would first notify the client to let them know that the
system is in trouble. If they are under a service contract,
we would dispatch a service person to the building to
determine what the trouble is, make a repair to it and put
the system back to normal again.” Bonifas 155. He ex-
plained that “our service technicians, when they get to
the field, can review the history of the account right on
their PC or tablet while they are standing in the custom-
ers’ building, so they have full information for how the
system has operated.” Bonifas 184. Bonifas testified that
with these procedures, “the average percentage of unre-
stored signals and out-of-service accounts for fire alarm
6
(...continued)
[sic].” See DC-303, Ex. I at 36; Ex. M at 70. The email blames
the “central station industry” for these problems, claiming
that it “is on a mission to take away all municipal monitoring
and keep the revenue for themselves.” DC-303, Ex. M at 70.
24 Nos. 12-2925 and 12-2981
accounts in the District is at or under two percent,” accord-
ing to reports the company generates. Bonifas 161.
Testimony at the hearing revealed much higher out-of-
service rates with the District’s monitoring. Bonifas
testified that he analyzed hundreds of pages of unrestored
signals and out-of-service reports from Du-Comm.
He found that once the District’s system became opera-
tional, over 12 percent of accounts were out of service
at any point in time. Bonifas 185, 195. Under the
District’s system the District receives reports of outages
and trouble and supervisory signals from Du-Comm.
Records indicated that those reports had not been
checked or reviewed at all. Bonifas 204. The District’s
witnesses disputed this number, claiming that the
percent of outages was under 2 percent, Freeman 302-03,
but after hearing testimony from both sides, the district
court credited the testimony of the alarm companies in
its factual findings. MPI Factual Findings ¶ 53. That
finding was not clear error.
2. Response Times
One of the District’s stated aims in passing the 2009
ordinance was to shorten the response times — the time
from when “a detection system noticed a smoke or fire
condition to the time [the District was] notified” or dis-
patch services were sent. See Freeman 265. According to
Du-Comm, it could receive and dispatch alarms from
private Central Stations in less than 60 seconds, but
from Station 3 under the District’s system in less than
30 seconds. Tegtmeyer 466-67. The reason for this dif-
Nos. 12-2925 and 12-2981 25
ference was that all of the addresses and other necessary
dispatch information for the District’s subscribers
were “pre-populated” into Du-Comm’s computers. The
same information for the alarm companies’ customers
was not similarly pre-populated in Du-Comm’s comput-
ers. When pressed, though, Du-Comm’s executive director
testified that Du-Comm would be able to pre-populate its
database to include address and other information for the
alarm companies’ customers, which would then reduce the
average dispatch times for those alarms to less than 30
seconds, the same as if the alarm came in from the Dis-
trict’s Station 3. Tegtmeyer 496; see also id. at 466-67.
3. Radio Network Interference
The evidentiary hearing also revealed that the
District’s new wireless network operates on a less
reliable frequency than fire and safety signals usually do.
The FCC licenses two main types of private (i.e., not for
commercial purposes) radio frequencies: “Public Safety
Pool” and “Industrial/Business.” See 47 C.F.R. § 90.1.
The frequency the District uses to connect the Keltron
units at properties to Station 3 is an “Industrial/Business”
frequency. 7 The industrial/business frequency pool is
for commercial activities and other non-emergency ac-
7
We take judicial notice of the license for this frequency, call
number WQKZ720, which labels the radio service as “IG –
Industrial/Business Pool, Conventional.” Available at FCC
License Search, http://wireless2.fcc.gov/UlsApp/UlsSearch/
searchLicense.jsp (last visited July 29, 2013).
26 Nos. 12-2925 and 12-2981
tivities (such as the “operation of educational, philan-
thropic, or ecclesiastical institutions”). See 47 C.F.R. § 90.35.
This can include taxis, farmers, and other businesses.
See In re Replacement of Part 90 by Part 88 to Revise the
Private Land Mobile Radio Servs. & Modify the Policies
Governing Them & Examination of Exclusivity & Frequency
Assignments Policies of the Private Land Mobile Servs., 12
F.C.C. Rcd. 14307, 14317, 14328 (1997) (“Similarly, frequen-
cies initially set aside for taxicabs (Taxicab Radio Ser-
vice) could be used in rural areas by farmers or in the
operation of mines,” and describing industrial/business
pool as for where, for the most part, “radio is used to
support business operations”). In contrast, the public
safety pool is for police activities, life-support services,
and other activities involving important and emergency
functions, including fire protection. 47 C.F.R. § 90.20.
The alarm companies’ expert testified that the Indus-
trial/Business Pool is less reliable than the Public Safety
Pool because it is less secure and more susceptible to
interruptions: “So someone with a taxicab company that
you have no control over could be on this frequency, key
a microphone for several minutes, and knock out several
AES radios.” Fiore 519. See also In re Replacement of Part 90,
12 F.C.C. Rcd. at 14312 (describing purpose of Public
Safety Pool: “We considered these guidelines necessary
to prevent overcrowding and to maintain the integrity
of critical functions of the users included within
this pool.”).
Thus, the facts revealed by the evidentiary hearing
substantially alter our understanding of the factual back-
Nos. 12-2925 and 12-2981 27
ground of this case. We are no longer required to give
the District the benefit of favorable inferences required
by the summary judgment posture of ADT I, and we
now know more about the District’s motives for its new
monitoring plan and the shortcomings of that new plan
in terms of safety and reliability.
C. The Injunction Compliance with ADT I
Significant new facts were also presented at the eviden-
tiary hearing regarding our analysis in ADT I of the Dis-
trict’s statutory authority under the Act. We held that
the District had the regulatory authority to impose the
“direct connect” requirement — which we understood to
require that alarm signals be sent directly from properties
to a Remote Supervising Station, rather than through
the “middlemen” Central Stations. ADT I, 672 F.3d at
496, 501. We found that opting for a Remote Supervising
Station model instead of a Central Station model was
“parallel” to the NFPA code so that the District had the
authority under the Act to impose the requirement.
The evidentiary hearing after our remand, however,
revealed several facts that alter our analysis of the Dis-
trict’s authority to impose the “direct connect” require-
ment. These findings show that the District’s system is
in fact not any more “direct” than the pre-ordinance
private arrangements because it routes all signals through
Station 3, whereas the prior arrangement similarly
routed signals through Central Stations. Moreover,
Station 3 itself does not comply with national standards.
As actually implemented, therefore, the District’s
28 Nos. 12-2925 and 12-2981
“direct connect” requirement was not within its statutory
authority to impose regulations “parallel to national
standards.” See 70 Ill. Comp. Stat. 705/11. We therefore
find that the district court acted within its discretion in
enjoining the District from requiring all signals to route
through Station 3 rather than Central Stations.
1. Station 3 Not a Remote Supervising Station
First, our reasoning in ADT I rested on the under-
standing that the District’s Station 3 was the Remote
Supervising Station — the facility receiving signals
directly from protected properties with no intermediary
stop in between. But it turns out that Station 3 is not the
Remote Supervising Station. Du-Comm is the Remote
Supervising Station, and signals are transmitted first to
Station 3 before being sent on to Du-Comm. This means
that the District’s “direct connect” requirement is no
more “direct” than the pre-ordinance arrangements, as
both arrangements involved transmitting signals from
point A to B to C: A (property) to B (Station 3 or Central
Station) to C (Du-Comm). The District argues that the
transmission from Station 3 to Du-Comm is not a second
transmission but an “autotransmission” such that the
signal from the property should be understood to be
transmitted from Station 3 to Du-Comm automatically.
But this does not make the path from a protected
property to Du-Comm “direct,” as the signal is still trans-
mitted through Station 3, even if that happens automati-
cally when the system is working as it is supposed to.
Nos. 12-2925 and 12-2981 29
2. Station 3 Does Not Meet NFPA 72 Code Standards
In any event, Station 3 suffers from a second, more
fundamental problem that was revealed during the
evidentiary hearing. It does not conform to the
applicable Code at all. The parties dispute this
vigorously, beginning with which edition of the Code
to use. The District has adopted the 2002 edition of
NFPA 72, so we use that edition of the Code. (As we
explain below, the District is not obligated to adopt or
hold itself to a new edition.) Regardless, the 2002 and
later editions have nearly identical language (albeit
under different section numbers) in the relevant sections.
Compare NFPA 72 § 8.2, 8.4 (2002), with NFPA 72 § 26.3,
26.5 (2010).8
More fundamentally, the parties dispute how the
Code would characterize Station 3 and what require-
ments apply to it as a result. The alarm companies argue
that Station 3 should be considered a “subsidiary station”
under the Code, which the Code defines as a separate,
unsupervised station through which signals can be trans-
mitted to a supervising station. See NFPA 72 § 3.3.192
(2002). As a subsidiary station, Station 3 would be
subject to the Code’s safety, reliability, and security
standards for such a station. See NFPA 72 § 8.2.5.2 (2002).
The District and Chicago Metro argue that Station 3
is not a subsidiary station and is not subject to any
8
The parties submitted hard copies of the NFPA 72 standards,
which are not otherwise readily available. We include the
text of the relevant provisions in the Appendix.
30 Nos. 12-2925 and 12-2981
specific safety or reliability standards. They argue that
the requirements for subsidiary stations are in the
portion of the Code applicable to Central Stations, and
because the District operates a Remote Supervising
Station fire alarm system, those requirements cannot
apply to Station 3.9 They argue instead that Station 3 is
an “alternate location”:
Where permitted by the authority having jurisdic-
tion, fire alarm and supervisory signals shall be per-
mitted to be received at an alternate location
approved by the authority having jurisdiction.
NFPA 72 § 8.4.2.1.2.* (2002).
The term “alternate location” is not defined in the Code,
and the Code does not appear to articulate any require-
ments for “alternate locations.” We asked counsel for
the District during oral argument what requirements
such an alternate location would need to meet, and he
identified none. So the District’s apparent position is
that the Code considers Station 3 to be an “alternate
location” under section 8.4 and as such does not subject
it to any requirements for safety, security, and reliability.
We find the alarm companies’ position — that Station 3
is at least subject to the requirements of a “subsidiary
9
The Code includes separate sections governing Central
Station fire alarm systems and Remote Supervising Station
fire alarm systems: section 8.2 governs Central Stations while
section 8.4 governs Remote Supervising Stations. See NFPA 72
§ 8.2, 8.4 (2002).
Nos. 12-2925 and 12-2981 31
station” under chapter 8 — to be more persuasive than
the District’s position that the station is subject to no
requirements at all.
There are several problems with the District’s inter-
pretation. First, the section it cites as permitting
signals to be routed through an “alternate location”
actually refers to the destination location — the Remote
Supervising Station itself (like Du-Comm), not an inter-
mediary location such as Station 3. See NFPA 72 § 8.4.2.1
(2002) (permitting two options for facilities to serve as
the remote supervising station itself, including an “alter-
nate location”). Any facility serving as the destination
remote supervising station must meet substantive re-
quirements, including that the “remote supervising
station shall have not less than two trained and
competent persons on duty at the remote supervising
station at all times.” NFPA 72 § 8.4.3.5.1 (2002). This
section does not say that the District may designate an
“alternate location” as an intermediary station through
which to route signals before they arrive at the Remote
Supervising Station. In fact, nothing in section 8.4 contem-
plates that alarm signals under a remote supervising
system would be transmitted through an intermediary
station at all. Section 8.4 does contemplate retransmis-
sion in subsection 8.4.3.4, but that applies to transmis-
sions from the Remote Supervising Station to another
location. NFPA 72 § 8.4.4.1 (2002) (alarm signals shall
be immediately retransmitted if the Remote Supervising
Station is at a location other than the public fire services
communications center).
32 Nos. 12-2925 and 12-2981
Second, even if section 8.4’s reference to an “alternate
location” could refer to an intermediary station between
properties and the remote supervising station, it is
unlikely that such a station would not be subject to any
NFPA requirements. The reference note to that section
indicates: “A listed central station might be considered
an acceptable alternate location for receipt of fire alarm
and supervisory signals.” NFPA 72 § A8.4.2.1.2. (2002)
(Such an arrangement was precisely how the District
operated before the 2009 ordinance, with Central Stations
receiving alarm and supervisory signals.) The Code is
otherwise silent as to what an “alternate location” may
be or entail, but its only guidance indicates that the
Code contemplates that it could be a Central Station,
and Central Stations are held to higher standards than
subsidiary stations. Compare NFPA 72 § 8.2.5.2 et seq.
(2002) (listing requirements for subsidiary stations),
with § 8.2.6.2.1 (requirements for Central Stations, in-
cluding two supervising personnel at all times, which
match the personnel requirements for Remote Super-
vising Stations under section 8.4.3.5.1). Thus, on our
reading, section 8.4 does not contemplate an intermediary
station at all, but rather transmission from properties
directly to a supervised station (either a Central Station
or another location meeting the personnel requirements
of section 8.4.3.5.1).
Third, the District’s position seems implausible, as we
doubt that the Code would permit a fire district to do
what the District has attempted to do here: reroute trans-
missions to a receiver in an unsupervised room with
no back-up equipment and no mechanism in place to
Nos. 12-2925 and 12-2981 33
restore signal transmission quickly if there are technical
problems. Chicago Metro’s witness Larry Coveny testified
that if the receiver at Station 3 stopped functioning, the
following steps would have to be taken to repair it: Du-
Comm would have to receive a signal that it was down,
Du-Comm would then call the District, someone at the
District would then call Chicago Metro, and Chicago
Metro would then send someone out to fix the head-end
unit. Coveny 453. This process could likely take several
hours, which we doubt the Code should be interpreted
to permit, since it requires subsidiary stations under
section 8.2 to have redundant equipment functioning
as back-up within 90 seconds. See NFPA 72 § 8.2.5.2.3.
In contrast, the alarm companies’ argument that Station
3 is a “subsidiary station” and must meet the applicable
requirements is a more sensible reading. A “subsidiary
station” is defined as
a normally unattended location that is remote from
the supervising station and is linked by a communica-
tions channel(s) to the supervising station. Intercon-
nection of signals on one or more transmission chan-
nels from protected premises with a communications
channel(s) to the supervising station is performed
at this location.
NFPA 72 § 3.3.192 (2002).
This describes Station 3 in all material respects: it is
unattended, remote from the remote supervising station
(Du-Comm), linked by a communications channel (the
wireless radio network) to Du-Comm, and connects
signals from properties to Du-Comm. The Code defines
34 Nos. 12-2925 and 12-2981
a “supervising station” as “a facility that receives signals
and at which personnel are in attendance at all times to
respond to these signals.” NFPA 72 § 3.3.193 (2002).
We recognize that the requirements for subsidiary
stations are found in section 8.2, which applies to
Central Station fire alarm systems, but this seems the
best fit for Station 3, as section 8.4 does not contemplate
an intermediary station at all.
Thus, either the Code does not contemplate an inter-
mediary retransmitting station at all, or such a station is
a “subsidiary station” and must meet the requirements
of section 8.2.5. We think the latter is the better reading.
So did the alarm companies’ expert, Louis Fiore, who
helped write the Code. He said that “when we wrote 8.4,
we didn’t envision this configuration” (referring to an
intermediary station between properties and the Remote
Supervising Station), but that he would instead apply
the requirements for a subsidiary station from section 8.2
to such a station. See Fiore 109.
As the district court correctly found, Station 3 does
not meet the requirements of section 8.2.5.2 (including
subsection 8.2.5.2.3). It does not have the necessary equip-
ment for a backup channel to be “operational within
90 seconds,” § 8.2.5.2.3, and it does not meet the inde-
pendent certification requirements of “UL 827,” see
§ 8.2.5.2, which require redundant equipment and chan-
nels. Station 3 is not certified by UL 827 and there is only
one receiving unit at Station 3. Coveny 453 (only one
receiving unit at Station 3); Fiore 126-27 (no evidence
that Station 3 meets NFPA Code).
Nos. 12-2925 and 12-2981 35
Thus, the evidentiary hearing revealed that Station 3
does not meet the Code standards, leaving plaintiffs’
Central Stations as the only Code-compliant means of
transmitting alarm signals from properties in the
District to Du-Comm. In light of these facts, the district
court acted within its discretion to require the District
to shut down Station 3. Because the Code requires com-
mercial properties to have fire alarm monitoring, and
the injunction put Station 3 out of commission, only
Central Stations are currently a viable option for alarm
monitoring in the District. The injunction therefore ap-
propriately required the District to permit signals to
be sent to Central Stations so that fire alarm monitoring
in the District would remain compliant with the
NFPA Code.
D. Injunction as Applied to Du-Comm
The injunction also includes provisions requiring the
District to enlist Du-Comm’s cooperation in enabling
Central Stations to monitor. First, in light of the district
court’s finding that Station 3 was not in compliance with
the Code and that the District must therefore permit
Central Stations to transmit and monitor alarm signals,
the district court enjoined the District to:
direct DuComm to cooperate as reasonably required
by the Alarm Companies to implement a procedure
so that central stations can automatically retransmit
fire alarm signals to the DuComm SIS computer and,
to the extent that DuComm upgrades its CAD system
36 Nos. 12-2925 and 12-2981
to receive fire alarm signals through NLETS, ASAP
to PSAP transmissions.
MPI ¶ 5.
Second, given that fire alarm signals received from
Central Stations would take 30 seconds longer to
dispatch than those received from Station 3, but only
because the relevant addresses were not pre-populated
in Du-Comm’s computers, the district court also
ordered the District to:
direct DuComm to cooperate as reasonably required
by the Alarm Companies in the implementation of a
procedure to populate the DuComm CAD system
with the necessary information about the Commercial
Accounts to reduce the time lag in dispatching emer-
gency vehicles and fire trucks, consistent with the
method now being employed by DuComm for the
District’s Commercial Accounts.
MPI ¶ 4.
Appellants and intervenor Du-Comm argue that
these provisions of the injunction improperly bind Du-
Comm, which is not a party to the suit. Federal Rule of
Civil Procedure 65 permits courts to enjoin a party’s
“officers, agents, servants, employees, and attorneys” and
“other persons who are in active concert or participa-
tion” with a party or its officers or agents, so long as
those persons have received actual notice of the injunc-
tion. Fed. R. Civ. Proc. 65(d)(2)(B)-(C). The parties dispute
both whether Du-Comm is an “agent” of the District, given
that it is governed and directed by a board made up of
Nos. 12-2925 and 12-2981 37
representatives from its member agencies, including the
District, see Tegtmeyer 501; Freeman 277-78, and whether
it received sufficient notice of the injunction. District
courts have broad discretion to enjoin third parties who
receive appropriate notice of the court’s injunctive
order. H-D Michigan, LLC v. Hellenic Duty Free Shops S.A.,
694 F.3d 827, 842 (7th Cir. 2012).
As interesting as the problem of the precise legal status
of Du-Comm may be, the injunction does not apply
directly to Du-Comm. It directs the District to “direct Du-
Comm to cooperate.” And Du-Comm’s executive
director Brian Tegtmeyer testified that Du-Comm is able
to cooperate with the District in the ways described by
those paragraphs. At the evidentiary hearing, he testified
about Du-Comm’s ability to pre-populate its computer
with the addresses and information of the alarm com-
panies’ customers. In response to a question asking “if
the alarm companies gave you the same data and you
assign a position for each of those commercial accounts,
you could input it into the same computer, correct?”
Tegtmeyer answered, “I could input the same information
into the computer, the dispatch computer.” Tegtmeyer 496;
see also id. at 489-90 (answering yes, that Du-Comm
could prepopulate if Central Stations gave the informa-
tion, but that “we have never discussed the methodol-
ogy” and “we haven’t done it,” but that Du-Comm
would not need any more equipment to do it).
As to the fifth paragraph, although Du-Comm does not
yet have the capacity to receive the specific type of con-
nection that the alarm companies’ expert testified
38 Nos. 12-2925 and 12-2981
would allow Central Stations to transmit signals directly
to Du-Comm’s computer, the expert testified that
enabling Du-Comm’s computer to do so would involve
a software change that would be an “easy fix.” Fiore 122.
We read paragraphs four and five of the injunction
as imposing a direct obligation on only the District, but
with the understanding that Du-Comm appears ready
to cooperate with the District in carrying out the require-
ments of those paragraphs. If Du-Comm refuses the
requests of its member agency, the District, the district
court may need to consider (a) whether the existing
injunction supports holding Du-Comm in contempt
under Rule 65, particularly whether Du-Comm is an
“agent” of the District and whether Du-Comm
received sufficient notice of the injunction for it to be
bound directly by the injunction, or (b) whether to
consider modifying the injunction after appropriate
proceedings so as to remove any arguable uncertainty.
See Fed. R. Civ. P. 65(d)(2)(B); see also Lake Shore Asset
Management Ltd. v. Commodity Futures Trading Comm’n,
511 F.3d 762, 767 (7th Cir. 2007) (Rule 65’s notice require-
ment means party’s agent falls under Rule 65(d)(2)(B)
or (C) only after the agent in question “is given notice
and an opportunity to be heard,” including the oppor-
tunity to present evidence on the question of its
relation to the party). Although Du-Comm certainly
now has notice of the injunction and has had the oppor-
tunity to dispute its relationship to the District in
this appeal, we need not resolve here whether that meets
Rule 65’s requirements, nor whether Du-Comm is an
agent of the District.
Nos. 12-2925 and 12-2981 39
Unless and until Du-Comm changes its mind about pre-
populating its databases or reprogramming its computer
so Central Stations can automatically transmit signals
there, we need not address those issues. Certainly, the
evidence appears undisputed that these are steps
that would enhance safety by improving response
time and transmission reliability, and we have difficulty
imagining why Du-Comm would resist such improve-
ments. Given Tegtmeyer’s testimony about Du-Comm’s
ability to cooperate on these safety measures, we would
be surprised if Du-Comm chose to contest further the
agency and notice issues under Rule 65. If it does,
the district court can take appropriate steps to ensure
compliance with its injunction.
E. The New Ordinance
For the reasons above, we find that the injunction
appropriately prohibits the District from enacting the
basic components of its monitoring plan in light of the
facts found at the evidentiary hearing because the
District lacks the legal authority to enact its plan. The
District now claims that its 2012 ordinance avoids the
problems posed by its 2009 ordinance and that the in-
junction improperly disregarded it. Rather than
analyzing the new ordinance in light of ADT I and the
evidentiary hearings, the district court enjoined the
District from enforcing the new ordinance and modified
the original ordinance by redacting it to conform with
ADT I and its new factual findings. MPI ¶¶ 20, 1. We
can understand the district court’s reluctance to
40 Nos. 12-2925 and 12-2981
undertake the task of modifying its work on the injunc-
tion to account for the District’s last-second effort to
avoid further litigation. The District passed the new
ordinance just days before its proposed findings and
conclusions and supporting memoranda for the modified
preliminary injunction and summary judgment were due.
But although the 2012 ordinance did not moot the
controversy, it did replace the 2009 ordinance, so the
2012 ordinance is the relevant District action for the
purposes of our analysis and we will directly review its
legality. This keeps the courts from standing on
the shaky ground of requiring the District to revive its
already-repealed ordinance. See, e.g., De Soto Sec. Co. v.
C.I.R., 235 F.2d 409, 411 (7th Cir. 1956) (“The courts can
only interpret congressional acts. They cannot legislate.”).
We find that the following portions of the new
ordinance must be struck to conform it to our opinion
today and in ADT I:
< In section 2.3, the last sentence shall be struck:
“The District shall, however, maintain the Commu-
nications Board for purposes of receiving and
relaying to Du-Comm, Generated Signals transmit-
ted from Affected Properties via networks main-
tained by Licensed Alarm companies, as contem-
plated by the provisions of this Ordinance.”
This sentence conflicts with paragraph 7 of the injunc-
tion, which requires the District to shut down its alarm
board at Station 3. Because we agree with the district
court that Station 3 does not comply with the relevant
portions of the Code, the new ordinance cannot permit
Nos. 12-2925 and 12-2981 41
Station 3 to continue operating, and this sentence must
be struck.
< Section 2.4 shall be redacted as follows:
The Owners of all Affected Properties, on or before
the date for compliance set forth in Section 4.1
hereof, shall engage a Licensed Alarm Company
of the Owner’s choice to provide a wireless radio
connection capable of instantly transmitting all
Generated Signals directly to the Communications
Board maintained by the District for purposes of
receiving, identifying and instantly transmitting
said Generated Signals by wireless radio direct
connection to Du-Comm. Said Generated Signals
shall be delivered directly to the District’s Commu-
nications Board by the Owner’s alarm company by
the method contemplated by Section 3.1 hereof, or
by such alternate method as may be approved by
the Chief of the District’s Fire Prevention Bureau
(“Bureau Chief”) upon application as provided in
Section 3.2, which said approval shall not be
unnecessarily withheld.
All Affected Properties shall be equipped with
wireless radio transmitters capable of sending
Generated Signals through a Licensed Alarm
Company’s wireless radio network, as set forth in
Section 3.1 hereof, which network shall be directly
connected to the District’s Communications Board.
Said wireless transmitters shall each have at least
60 hours of secondary power.
The District cannot require the alarm companies to
transmit signals through a wireless network “directly
42 Nos. 12-2925 and 12-2981
connected to the District’s Communications Board”
because Station 3 does not comply with the Code. The
District also cannot require alarm companies to use its
wireless radio network exclusively, as that network relies
on the receiver at Station 3. Moreover, the District’s
wireless network is compatible with only one type of
wireless radio transmitter. See Coveny at 376, 439. As we
discussed above, requiring a specific type of transmitter
raises substantial antitrust issues. But because we find
that the District can no longer operate Station 3 or
require signals to be transmitted through it, we need not
resolve that issue now.
< Section 2.5 is struck in its entirety, as the District
is not permitted to operate its “Communications
Board,” i.e., Station 3.
< Section 2.6 is struck.
To the extent that the fees Du-Comm assesses are
derivative fees that the District would not have the author-
ity to assess on its own, and because the District cannot
assess fees for fire alarm signaling and monitoring, Du-
Comm cannot assess such fees on the District’s behalf.
See ADT I, 672 F.3d at 504-05.
< In section 3.1, all text following “All Generated
Signals shall be transmitted through a wireless
radio network operated and maintained by a
Licensed Alarm Company,” is struck.
The District cannot require the alarm companies to
connect to Station 3, which renders the rest of the
language about access to the board and applications
for such access superfluous.
Nos. 12-2925 and 12-2981 43
< Section 3.2 is struck in its entirety.
No approval process is necessary because the District
is not permitted to require direct connection to the
board at Station 3 or to Du-Comm.
Given the severability clause in section 8.1, all other
portions of the new ordinance may remain. They need
not be struck, though many will likely be rendered some-
what irrelevant given what remains of the ordinance.
Substantively, the essence of what remains is that com-
mercial property owners are required to use wireless
transmission through private alarm companies.
F. Remaining Issues
We have rejected the District’s and Chicago Metro’s
primary arguments about the district court’s compliance
with ADT I, Du-Comm’s involvement, and the new
ordinance. In addition to these arguments, the District and
Chicago Metro complain about numerous other aspects of
the injunction. We have considered their arguments and
find little merit. Many of their arguments are undeveloped
and unsupported. See United States v. Berkowitz, 927 F.2d
1376, 1384 (7th Cir. 1991) (“We repeatedly have made
clear that perfunctory and undeveloped arguments . . . are
waived (even where those arguments raise constitu-
tional issues).”). But a few of their arguments raise
valid concerns with the injunction, so we modify the
injunction in a few minor respects to account for
those arguments, in addition to the modifications we
made to the 2012 ordinance.
44 Nos. 12-2925 and 12-2981
1. Refunds to Subscribers
First, we agree that paragraph 17 of the injunction is
problematic. It requires the District to “refund to the
affected Commercial Accounts all monies collected by
[the] District for fire alarm monitoring since the inception
of the Ordinance.” MPI ¶ 17. This is problematic because
the subscribers who would receive such refunds are not
parties to this case. See, e.g., McKenzie v. City of Chicago,
118 F.3d 552, 555 (7th Cir. 1997) (“The fundamental prob-
lem with this injunction is that plaintiffs lack standing
to seek — and the district court therefore lacks authority
to grant — relief that benefits third parties.”). While we
realize it may seem more efficient to deal with custom-
ers’ potential claims against the District in this
proceeding, the question of whether and what amount
of refunds such subscribers should receive is sufficiently
complex that it warrants more attention and process
than we can give it on this record. For example, the sub-
scribers who paid for the District’s monitoring services
at least received those monitoring services, even if the
District was not permitted by statute to provide them
and even if the quality and reliability were worse than
promised. So the subscribers may not be entitled to a
complete refund, but rather the refund may need to be
mitigated to account for the reasonable value of the
alarm monitoring services the District actually provided
them during that time. Cf. 26 Williston on Contracts § 68:1
(4th ed.) (award for reasonable value of services rendered
is permitted under unjust enrichment, even when “the
contract is unenforceable because of a lack of capacity
of one of the parties”).
Nos. 12-2925 and 12-2981 45
2. Adopting the Code
Paragraph 9 of the injunction requires the District
to “adopt the current version of the NFPA Code” and to
“adopt such newer versions when they are issued.” MPI
¶ 9. We do not see a legal basis for such a requirement.
Rather, courts have acknowledged which version of
NFPA codes municipalities adopt without commenting
on the propriety of having adopted a version from years
past. See, e.g., Alliance for Mentally Ill v. City of Naperville,
923 F. Supp. 1057, 1062 (N.D. Ill. 1996) (noting “Naperville
adopts the 1991 version of the Life Safety Code (“LSC”),
published by the National Fire Protection Association
(“NFPA”)”), abrogated on other grounds by Hemisphere
Bldg. Co. v. Village of Richton Park, 171 F.3d 437 (7th
Cir. 1999). The Code itself includes no requirement that
municipalities adopt the most recent version. Its “Code
Adoption Requirements” section states merely that “[t]his
Code shall be administered and enforced by the authority
having jurisdiction designated by the governing author-
ity.” NFPA 72 § 1.7 (2002) (language remains same
through 2013 version). Without a legal basis for
requiring that the District adopt the most recent version
of the Code and continue to do so with every revision,
paragraph 9 of the injunction must be removed.
3. Timing
We raise a final concern with the modified permanent
injunction — that its duration is indefinite. It is of course
a permanent injunction, but we can easily imagine that
at some point in the future, the circumstances giving
46 Nos. 12-2925 and 12-2981
rise to the injunction will change and the injunction
may therefore also need to change or may no longer be
necessary. The district court retains the power to
modify the injunction further if the circumstances so
warrant. Given that the injunction addresses this
particular time, current technology, and a current set of
market problems, we are confident that the district
court will keep the door open to necessary modifications
in the public interest, while keeping in mind the themes
and tension underlying this case: balancing a municipal
entity’s legitimate regulatory authority while protecting
the market from unlawful monopolistic activity.
III. Conclusion
The modified permanent injunction generally comports
with ADT I and appropriately enjoins the District’s
activity with regard to alarm monitoring in the District.
The injunction must be modified as noted above with
regard to the new ordinance, the subscriber refunds,
and requiring the District to adopt a certain version of
the NFPA Code. But it is otherwise a reasonable exercise
of the district court’s discretion in light of all the evidence,
particularly the testimony at the evidentiary hearing
following ADT I. The injunction is forceful, but
given the District’s and Chicago Metro’s history of recalci-
trance throughout this litigation, the district court was
justified in taking strong measures.
A FFIRMED AS M ODIFIED .
Nos. 12-2925 and 12-2981 47
APPENDIX
Relevant Portions of NFPA 72 (2002) (all other portions
omitted)
Chapter 1: Administration
1.7 Code Adoption Requirements. This Code shall be
administered and enforced by the authority having juris-
diction designated by the governing authority.
* * * *
Chapter 3: Definitions
3.3.192 Subsidiary Station. A subsidiary station is a
normally unattended location that is remote from the
supervising station and is linked by a communications
channel(s) to the supervising station. Interconnection of
signals on one or more transmission channels from pro-
tected premises with a communications channel(s) to
the supervising station is performed at this location.
3.3.193 Supervising Station. A facility that receives
signals and at which personnel are in attendance at all
times to respond to these signals.
* * * *
Chapter 8: Supervising Station Fire Alarm Systems
8.2 Fire Alarm Systems for Central Station Service. Fire
alarm systems used to provide central station service
shall comply with the general requirements and the use
requirements of Section 8.2.
* * * *
48 Nos. 12-2925 and 12-2981
8.2.5 Facilities.
8.2.5.1 The central station building or that portion of a
building occupied by a central station shall conform to
the construction, fire protection, restricted access, emer-
gency lighting, and power facilities requirements of the
latest edition of ANSI/UL 827, Standard for Safety Central-
Station Alarm Services.
8.2.5.2 Subsidiary station buildings or those portions
of buildings occupied by subsidiary stations shall
conform to the construction, fire protection, restricted
access, emergency lighting, and power facilities require-
ments of the latest edition of ANSI/UL 827, Standard for
Safety Central-Station Alarm Services.
8.2.5.2.1 All intrusion, fire, power, and environ-
mental control systems for subsidiary station buildings
shall be monitored by the central station in accordance
with 8.2.5.
8.2.5.2.2 The subsidiary facility shall be inspected at
least monthly by central station personnel for the
purpose of verifying the operation of all supervised
equipment, all telephones, all battery conditions, and
all fluid levels of batteries and generators.
8.2.5.2.3 In the event of the failure of equipment at the
subsidiary station or the communications channel to the
central station, a backup shall be operational within
90 seconds.
8.2.5.2.4 With respect to 8.2.5.2.3, restoration of a failed
unit shall be accomplished within 5 days.
Nos. 12-2925 and 12-2981 49
8.2.5.2.5 Each communications channel shall be con-
tinuously supervised between the subsidiary station
and the central station.
8.2.5.2.6 When the communications channel between
the subsidiary station and the supervising station fails, the
communications shall be switched to an alternate path.
Public switched telephone network facilities shall be
used only as an alternate path.
8.2.5.2.7 In the subsidiary station, there shall be a com-
munications path, such as a cellular telephone, that is
independent of the telephone cable between the subsidiary
station and the serving wire center.
8.2.5.2.8 A plan of action to provide for restoration of
services specified by this Code shall exist for each sub-
sidiary station.
* * * *
8.4 Remote Supervising Station Fire Alarm Systems
8.4.2* Facilities
8.4.2.1 Fire alarm systems utilizing remote supervising
station connections shall transmit fire alarm and super-
visory signals to a facility meeting the requirements of
either 8.4.2.1.1 or 8.4.2.1.2.
8.4.2.1.1 Fire alarm and supervisory signals shall be
permitted to be received at the public fire service commu-
nications center, at the fire station, or at the govern-
mental agency that has the public responsibility for
taking prescribed action to ensure response upon receipt
of a fire alarm signal.
50 Nos. 12-2925 and 12-2981
8.4.2.1.2* Where permitted by the authority having
jurisdiction, fire alarm and supervisory signals shall be
permitted to be received at an alternate location approved
by the authority having jurisdiction.
8.4.3 Equipment and Personnel
8.4.3.4 Retransmission of an alarm signal, if required,
shall be by one of the following methods, which appear
in descending order of preference as follows: . . .
8.4.3.5.1 The remote supervising station shall have not
less than two trained and competent persons on duty at
the remote supervising station at all times to ensure
disposition of signals in accordance with the require-
ments of 8.4.4.
8.4.4 Operations
8.4.4.1 If the remote supervising station is at a location
other than the public fire service communications center,
alarm signals shall be immediately retransmitted to
the public fire service communications center.
References
A.8.4.2.1.2 A listed central station might be considered
an acceptable alternate location for receipt of fire alarm
and supervisory signals.
7-31-13