In the

United States Court of Appeals

For the Seventh Circuit

Nos. 12-2925 and 12-2981

ADT SECURITY SERVICES, INC. et al.,

Plaintiffs-Appellees,

v.

LISLE-WOODRIDGE FIRE PROTECTION DISTRICT and

CHICAGO METROPOLITAN FIRE PREVENTION COMPANY,

Defendants-Appellants,

and

DUPAGE PUBLIC SAFETY COMMUNICATIONS,

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.

ARGUED APRIL 22, 2013—DECIDED JULY 31, 2013

Before WOOD, TINDER, and HAMILTON, Circuit Judges.

HAMILTON, 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 summary 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 permanent 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 summary judgment, particularly with regard to the statutory

authority for and the motivation and efficacy of the District’s plan. We therefore find, with a few minor exceptions, 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 provides 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 dispatched 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 commercial properties in the District. For example, a warehouse, 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 customers 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 municipal 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

References to the district court docket are noted “DC-[docket 1

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.

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 DuComm. (AES and Keltron radios are synonymous.

Coveny 367.) The District sent a notice to all commercial

property owners in the District, informing them that
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

In our 2012 decision we used the 2010 version of the Code, 2

but as we will explain below, the 2002 version is the relevant

(continued...)

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 equipment. 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 commercial 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 prevention 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 acceptable 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). Given these options, 2
Nos. 12-2925 and 12-2981 9

(...continued) 2

edition. The sections we relied on in ADT I are substantially

similar in the 2002 edition.

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 equipment 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 proceedings in light of these holdings and to address the issues
10 Nos. 12-2925 and 12-2981

Appellants argue that the district court abused its discretion 3

in treating Fiore as an expert because the alarm companies

(continued...)

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 DuComm. 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
Nos. 12-2925 and 12-2981 11

(...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 DC287, 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.

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 Separate App. 66-75. The new ordinance repealed the 2009

ordinance and replaced it with a modified set of requirements. 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 equipment. 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
12 Nos. 12-2925 and 12-2981

We refer to the Modified Permanent Injunction simply as 4

the “injunction,” because it is the injunction we are reviewing

in this opinion.

collect fees on its behalf. The District argued before the

district court that the new ordinance mooted the controversy; the plaintiff alarm companies disagreed.

F. Modified Permanent Injunction

On August 7, 2012, the District Court entered a

Modified Permanent Injunction Order and issued accompanying factual findings and conclusions of law.

The court adopted the alarm companies’ findings of

fact, conclusions of law, and proposed injunction provisions. In essence, the Modified Permanent Injunction4

required the District to permit the alarm companies

to receive and transmit signals directly from property

alarm boards (independently of the District) and to retransmit 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 technology 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
Nos. 12-2925 and 12-2981 13

The District also sought a stay of the injunction from this 5

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. LisleWoodridge Fire Protection District, Order, No. 12-2925; 12-2981

(7th Cir. Sept. 11, 2012) (dismissing Nos. 12-2219 and 12-2220

as moot).

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 ordinance 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. They each 5

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
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 controversy 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 system. 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 appropriate 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 District’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 DuComm even though it is not a party, we find that

the injunctive measures involving Du-Comm are appropriate because Du-Comm expressed its willingness

to cooperate in the ways required by the injunction. If DuComm 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 elements.

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 disputes 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 system’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 burdensome 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 equipment that they buy,” and “can choose a product that

automatically has two outputs and hang two transmitters on it and make it work.” Bonifas 180.

Without dual monitoring, alarm companies are effectively 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 respond 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 concerns about the anti-competitive effects of the new ordinance.

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

Other evidence that has come to our attention since ADT I 6

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...)

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 monitoring 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. Although 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. The district court 6
Nos. 12-2925 and 12-2981 23

(...continued) 6

[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.

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 monitoring signals through Central Stations and would send

a technician out to assess and repair the alarm equipment. 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 explained 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 customers’ building, so they have full information for how the

system has operated.” Bonifas 184. Bonifas testified that

with these procedures, “the average percentage of unrestored signals and out-of-service accounts for fire alarm
24 Nos. 12-2925 and 12-2981

accounts in the District is at or under two percent,” according to reports the company generates. Bonifas 161.

Testimony at the hearing revealed much higher out-ofservice 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 operational, 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 dispatch 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

We take judicial notice of the license for this frequency, call 7

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). 

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 computers. 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 District’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. The industrial/business frequency pool is 7

for commercial activities and other non-emergency ac-
26 Nos. 12-2925 and 12-2981

tivities (such as the “operation of educational, philanthropic, 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, frequencies initially set aside for taxicabs (Taxicab Radio Service) 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 Industrial/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 evidentiary hearing regarding our analysis in ADT I of the District’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 District’s authority to impose the “direct connect” requirement. 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 understanding 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 transmitted through Station 3, even if that happens automatically when the system is working as it is supposed to.
Nos. 12-2925 and 12-2981 29

The parties submitted hard copies of the NFPA 72 standards, 8

which are not otherwise readily available. We include the

text of the relevant provisions in the Appendix.

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 requirements 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 transmitted 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
30 Nos. 12-2925 and 12-2981

The Code includes separate sections governing Central 9

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).

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. They argue instead that Station 3 is 9

an “alternate location”: 

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.

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 requirements 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
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 interpretation. 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 intermediary 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 “alternate location”). Any facility serving as the destination

remote supervising station must meet substantive requirements, 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 contemplates that alarm signals under a remote supervising

system would be transmitted through an intermediary

station at all. Section 8.4 does contemplate retransmission in subsection 8.4.3.4, but that applies to transmissions 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, including two supervising personnel at all times, which

match the personnel requirements for Remote Supervising 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 transmissions 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: DuComm 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 communications channel(s) to the supervising station. Interconnection of signals on one or more transmission channels 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 intermediary 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 equipment for a backup channel to be “operational within

90 seconds,” § 8.2.5.2.3, and it does not meet the independent certification requirements of “UL 827,” see

§ 8.2.5.2, which require redundant equipment and channels. 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 commercial 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 appropriately 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 emergency 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 DuComm, 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 participation” with a party or its officers or agents, so long as

those persons have received actual notice of the injunction. 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 DuComm 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 companies’ 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 information, but that “we have never discussed the methodology” 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 connection 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 requirements 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 requirement 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 opportunity 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 opportunity 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 prepopulating 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 improvements. 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 injunction 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 injunction 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 Communications Board for purposes of receiving and

relaying to Du-Comm, Generated Signals transmitted from Affected Properties via networks maintained by Licensed Alarm companies, as contemplated by the provisions of this Ordinance.” 

This sentence conflicts with paragraph 7 of the injunction, 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 Communications 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 authority to assess on its own, and because the District cannot

assess fees for fire alarm signaling and monitoring, DuComm 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 somewhat irrelevant given what remains of the ordinance.

Substantively, the essence of what remains is that commercial 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 constitutional 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 problem 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 customers’ 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 subscribers 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 authority.” 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 recalcitrance throughout this litigation, the district court was

justified in taking strong measures. 

AFFIRMED AS MODIFIED.
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 jurisdiction 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 protected 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, emergency lighting, and power facilities requirements of the

latest edition of ANSI/UL 827, Standard for Safety CentralStation 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 requirements 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 environmental 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 continuously 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 communications 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 subsidiary 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 supervisory 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 communications center, at the fire station, or at the governmental 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 requirements 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