Should you turn off service on late to test accounts April 10, 2025

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Should you turn off service on late to test accounts
April 10, 2025

Should you turn off service on late to test accounts
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Ken,
   Can you expand on the Q and A in the article on April 4, 2025 regarding when to turn off service for a delinquent account. to include accounts that are paid, however Late to Test? I would like to make sure my best practices are aligned in what you suggest. I have 3 or 4 accounts that are with the City of XXX and they pay monitoring/inspection contract; however late to test and no response from the City worker. We do notify the City FM, but nothing ever moves forward. What can you suggest please?
   Thank you in advance.
Tanya
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Response
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   This issue arises in a number of scenario, not just late to test or test failure. How about no communication pathway for extended period of time, months or years, yet you continue to invoice for monitoring and worse, pay the central station for the monitoring that you know is presently not working?
   Let's look at your contract to determine what your obligations are when it comes to monitoring. You've contracted to monitoring; but the obligation to provide the communication pathway weights exclusively on your subscriber who has the contractual obligation to provide the communication service, unless you have AES or other proprietary communication pathway, buts let's put that aside for the moment.
   We saw a lot of this when customers switched from POTS to cable. The cable company came in, swapped out the communication link ad left the alarm non-communicating. Customers didn't want to pay you to restore the service, and if you didn't have test signals you didn't even know about the failure of communication. Then came the 2G upgrades that your customers didn't want to pay for, so those systems now lost communication. In some situations the customers weren't using the alarm anyway so didn't care if it worked and didn't want to invest in repairs or upgrades. For whatever reason, their account was current with you, perhaps by their oversight, quickly corrected once you let them know the alarm wasn't working.
   We've had cases where customers sue or threaten to sue for a loss when the communication pathway was disabled for long time and yet they paid for monitoring for extended periods, years in some cases. We've had cases where customers finally stop paying for a non-communicating alarm only to be pursued in collection for their non-payment. We've had such cases where the alarm dealer continued to pay the central station for monitoring and cases where the dealer finally just stopped paying, yet continued to collect monitoring charges from the subscriber, until there was a default.
   I almost fell into a legal trap when I started this article. I almost framed the question as whether you can continue charging and collecting for monitoring when you know there are no signals possible. How does that question change from charging when you now no signals are presently working? The K&K Standard Form Agreement, the All in One [or the Monitoring Contract if that's what you use despite the suggestion to use the All in One] clearly requires the subscriber to provide the communication pathway and also requires the subscriber to contact you to request service. If you provide Inspection Service then you would report no communication in the Inspection Report. If a fire alarm you would be sure to report to the A H J, especially if fire monitoring is mandated by law and the Fire Department knows you installed and agreed to monitor the fire alarm.
   You would also be required to notify your subscriber of the line failure. If test signals are daily or monitoring I suppose the question becomes, for how long do you have to continue to send the same notice of line failure and need for action, either repair or action by the subscriber to activate communication at the premises?
   I don't know if any of the laboratories have guidelines for how many times you must notify the subscriber. Take a fire alarm for example. NFPA 72 has a time requirement for notice if the system is to be out of service for a period of time, I think 8 hours. But once it goes out, then what? Is only one notice required after the first 8 hours or is there a requirement for notice every 8 hours and for how long? The fire experts can advise us.
   But non regulated alarm systems have no notice imposed by law, only the contract. Line failure should be reported to the subscriber if not restored quickly. But, again, how many times after a failure to test?
   Since there is no law or no customary guideline, I suppose we can look to the central station's procedures, which may be "published" and perhaps in your hands and, through you, in the hands of your subscriber. I should warn that the written central station guidelines, whether prepared for dealer, monitoring end user or training manual for the central station operators, will be in the hands of a Plaintiff's lawyer suing the dealer or central station for a monitoring failure, no matter whose fault that failure may be.
   I think a minimum of three notices should go to the subscriber of line failure and need to restore the communication pathway or have alarm repaired. A final notice should make it clear that the problem has persisted despite prior notices and that this is the final notice. I suppose it would be prudent to follow up once a year or so as a reminder.
   Should you stop charging the customer for monitoring? No. While "impossibility of performance" will excuse performance by a party, the loss of communication pathway is not because of "impossibility of performance" but because the subscriber has chosen not to perform its obligation under the contract to provide the communication service. This changes, of course, if you have contracted to provide the communication service, such as AES or other proprietary communication system. Some of you are contracting to provide Internet or cellular service and if for any reason that becomes impossible then that would excuse the subscriber's payment obligation for monitoring. But that is different than a customer deciding it doesn't need phone or any other communication service at the premises for whatever reason.
   I am sure many of you have considered this issue and handle it in a measurable way. Any good ideas, let us know, and if I missed any laboratory or legal standards please let us know.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com