KEN KIRSCHENBAUM, ESQ ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and whitelist ken@kirschenbaumesq.com ****************************** Comments on NY’s Digital Fair Repair Act – how will this affect distributorship and dealer programs January 18, 2023 ********************* Comments on NY’s Digital Fair Repair Act – how will this affect distributorship and dealer programs from article on January 6, 2023 ********************* Ken Interesting. So does Simplex (one of the most proprietary fire alarm manufacturers) have to allow any end user or alarm company to buy repair parts and also provide them with the necessary software to make program chains to make repairs to systems?..... I will be the first to say now NO WAY Simplex is giving up the keys to the castle and their ability to charge whatever rate they want because they have you by the balls and you can't go anywhere else and you want one smoke detector they can charge you $5k because it's still cheaper than replacing the entire system. They built there entire business model around the get in the door cheap and then rape the customer at every chance you get..... Maybe this law makes sense for consumer goods, but I can't see how all of the dealer level products would allow such a law. Any untrained person can work on their system with no idea what they are doing or the ramifications of an error due to lack of proper training. For life safety systems seems like a liability nightmare that the state just opened up. EW *************************** Ken Does that mean we now have to provide programming codes to our customers? BM *************************** Ken: No good deed shall go unpunished! While intentions may be for ‘ease of repair’, the typical consumer does not have the skillset to repair, sometimes at the board level surface mount devices! So, giving the end user/consumer/well intentioned ‘handy person’ with a soldering iron the ‘weapons to repair’ will end up many times with frustrated consumers! Frustrated consumers = litigation! I remember the time I went into S&B Distributors. (*now ADI). The branch manager was listening to the most aggravated and obviously aggrieved ‘end user’ about his Snyder Electronics bounce back photo beam that would ring a bell when the anticipated customer crossed the entry into his retail shop. The reason? Smoke was ‘let out’ of the ‘defective unit’ when the end user plugged the unit into the 120vac outlet. Obviously the manufacture’s markings of 12vac was incorrect and needed to be ‘properly’ installed by using a simple electrical cord. The branch manager offered to give him a new unit and I offered, at no charge, to install the unit (trying to keep good will with our profession). The customer was incensed at the very thought of him IMPROPERLY installing this product and tempers were flaring! End of the story – Dick Stovall provided a cash refund to the ‘customer’ and vowed to never again allow a retail individual darken his door step! Now, what about all of the DIY systems in the field that are ‘monitored’ by XYZ contract Central Station? What will occur when the DIY person now attempts to ‘repair’ the installed device? I’m just curious what occurs when there is a horrible crime and the fingers are pointing at the Central Station as ‘obviously’ the Central Station did not do the job properly and the supposed ‘protection’ did not occur….– I’m interested in hearing if any Central Station management care to weigh in on this scenario? I’m also interested in hearing from any insurance folks about what scuttlebutt they have heard as we are supposed to be a ‘high risk’ but LOW VOLUME OF RISK industry…..*I remember in the 1980’s when the ability to obtain E&O insurance was unavailable – at ANY price! Respectfully, Joseph (Joe) Pfefer, President & Founder Jade Alarm Co ********************** Ken So what does that mean for "dealer lock out codes"? Mke S ************************ Ken In the 80's every consumer electronic device (audio, video, computer, answering machine, alarm clock, etc) came with user's manual and full schema. When China started stealing the designs and manufacture copycats, user's manuals were cut down to barely any information. Manufacturers had to protect their product. Consumers lost the ability to repair their equipment, lost the great books with computer programming samples, lost the knowledge that was gained from DIY. I don't see problem bringing it back. Am I missing something? Dusan ************************ Ken Maybe you should come up with the documentation for the subscription for service manuals $$$$ and the requirements for liability insurance. The repair company should assume the liability if the device dos not work properly after the repair. It may be necessary to be a UL registered service provider to keep the device UL listed after the third party repair. I would love to see Joe’s repair shop recreate the installer’s program… I believe the manufacturer should provide a replacement board for cost plus a small handling charge and charge a large “core” charge if the customer fails to return the defective board. This way a critical system will be repaired correctly and the old parts recycled. X Brooklyn dealer, enjoying retirement in FL *************************** Response *************************** The new law does exclude certain products. The products that affect the security / fire alarm industry appears to be affected by this provision: “(E) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE AN ORIGINAL EQUIPMENT MANUFACTURER OR AUTHORIZED REPAIR PROVIDER TO MAKE AVAILABLE ANY PARTS, TOOLS, OR DOCUMENTATION REQUIRED FOR THE DIAGNOSIS, MAINTE- NANCE, OR REPAIR OF PUBLIC SAFETY COMMUNICATIONS EQUIPMENT, THE INTENDED USE OF WHICH IS FOR EMERGENCY RESPONSE OR PREVENTION PURPOSES BY AN EMERGENCY SERVICE ORGANIZATION SUCH AS A POLICE, FIRE OR EMERGENCY MEDICAL SERVICES AGENCY.” As far as potential liability concerns the law provides as follows: “5. NO ORIGINAL EQUIPMENT MANUFACTURER OR AUTHORIZED REPAIR PROVIDER SHALL BE LIABLE FOR ANY DAMAGE OR INJURY CAUSED TO ANY DIGITAL ELECTRON- IC EQUIPMENT BY AN INDEPENDENT REPAIR PROVIDER OR OWNER WHICH OCCURS DURING THE COURSE OF REPAIR, DIAGNOSIS, MAINTENANCE, OR MODIFICATION, INCLUDING BUT NOT LIMITED TO, ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; ANY LOSS OF DATA, PRIVACY OR PROFITS; OR ANY INABILITY TO USE, OR REDUCED FUNCTIONALITY OF, THE DIGITAL ELECTRONIC EQUIPMENT.” It seems that the law will not require a manufacturer or authorized repair provider to make available parts and documentation etc for the Area of Refuge systems and the In-Building Wireless Communication Systems. I haven’t read the legislative intent of the law and in any event we will likely have to wait for Opinions for the New York Attorney General and the New York courts. Another interesting aspect of the law is that only the NY Attorney General can enforce it; there is no private right of action. You won’t be able to sue the manufacturers who sell only to authorized distributors or dealers, but you can initiate complaints to the NY Attorney General. ******************** To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com *************************** To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com *************************** CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304. *********************** ALARM ARTICLES: You can always read our Articles on our website at ww.kirschenbaumesq.com/page/alarm-articles updated daily ******************** THE ALARM EXCHANGE - the alarm industries leading classified and business exchange - updated daily ************************* Wondering how much your alarm company is worth? Click here: https://www.kirschenbaumesq.com/page/what-is-my-alarm-company-worth ****************************** Getting on our Email List / Email Articles archived: Many of you are forwarding these emails to friends or asking that others be added to the list. Sign up for our daily newsletter here: Sign Up. You can read articles and order alarm contracts on our web site www.alarmcontracts.com ************************** 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
