1.14.22 – SIW
As the AT&T deadline looms in February, do not depend on the FCC to give you an extension
This article originally appeared in the January 2022 issue of Security Business magazine. When sharing, don’t forget to mention Security Business magazine on LinkedIn and @SecBusinessMag on Twitter.
In my May 2021 column, I wrote about the looming 3G wireless sunset, the risk to millions of security service customers, and how security companies can mitigate their potential liability for the harm that may result from the loss of 3G communications systems (www.securityinfowatch.com/21219326).
As of this writing, AT&T is holding to its 3G sunset deadline of Feb. 22, 2022. The deadline for T-Mobile is July 1, 2022, and Verizon’s is Dec. 31, 2022. On those dates, millions of 3G radio devices may not be able to communicate. To the extent those radios are intended to communicate emergency signals from residential and commercial electronic security subscribers, the danger is self-evident.
Fighting the Deadlines
The security industry – led by organizations like the Electronic Security Association (ESA) and the Alarm Industry Communications Committee (AICC) of The Monitoring Association – has been fighting for many months in an attempt to persuade AT&T to extend its deadline.
AICC submitted extensive comments in a proceeding pending before the Federal Communications Commission (FCC) known as In the Matter of Petition for Emergency Relief Due to COVID-Related Delays in 3G Sunset Transition for Central Station Alarm Subscribers, GN Docket No. 21-304. AICC cited the risk as follows:
“AT&T’s proposed Feb. 22, 2022, shutdown of its 3G service will have a direct and immediate harmful impact on millions of U.S. citizens, putting at risk the lives of those dependent on alarms detecting fire, carbon monoxide poison, home invasions and medical emergencies; families driving with anti-collision systems that will no longer work, and telematics that will no longer summon help in the event of a crash; students depending on school bus tracking technology to make sure they arrive at their destination safely, and can engage in contact tracing in the event of a COVID-19 infection among the students; rural residents that depend on the wireless service in areas that still lack 4G and 5G coverage, where a breakdown, crash or other emergency during freezing weather can be deadly; domestic abuse victims that depend on ankle bracelet monitoring to make sure that their abuser does not return; victims of violent felons and drunk drivers; and other vulnerable persons.”
AICC argues that, as a matter of public safety, the AT&T 3G sunset must be delayed to enable security integrators a greater opportunity to replace older radios. AICC cites several grounds justifying intervention by the FCC, including:
- Access to customer premises has been significantly hindered for nearly two years due to business closures and the reluctance of customers to have an in-person service appointments;
- The microchip shortage has severely hindered the industry’s ability to complete 3G upgrades; The chip shortage and related supply-chain delivery disruptions are only getting worse; and
- AT&T’s agreement to defer part of its 5G rollout due to safety concerns raised by the aviation industry should apply no less to the life safety industry.
For its part, AT&T argues, among other things, that the security industry has had years to upgrade older devices; that the FCC does not have jurisdiction over this issue; and that many alarm companies – notably, the larger players – have accommodated the upgrade and are not at risk.
As this fight has been prolonged, and as AT&T has held steadfast in its position and timing, the likelihood is that this deadline will not change absent intervention by the FCC or private legal action on behalf of the industry or particular companies.
It is Time to Take Action
As I wrote in May, your company must either expeditiously replace all of your customers’ 3G equipment or be prepared to show why you could not; what you did to notify customers of the risks; what you did to reduce the impact on customers; and what you did to try to get the 3G sunset deadline extended.
There are many questions you may be forced to answer: Have you sent notice to your customers? Have you provided guidance on your website? Have you attempted (repeatedly) to make appointments to replace older devices? Have you tried to circumvent supply chain shortages? Have you joined a trade group (like ESA, TMA, AICC or others? Have you supported their lobbying initiatives?
Have you communicated directly with AT&T? Have you put them on notice that you will seek contractual or common law indemnity or contribution from them in the event of a loss attributable to the 3G sunset? Have you appointed people within your organization and/or retained counsel to lead all of these efforts? Have you held executive or board meetings about these issues?
All these efforts should be carefully documented in consultation with your legal counsel.
It is possible that, as of the publication of this column, the deadline will be deferred; however, your company should not rely on any such extension. Most importantly, you should not rely on the operational integrity of this older equipment that is about to be rendered useless forever.
Timothy J. Pastore, Esq., is a Partner in the New York office of Montgomery McCracken Walker & Rhoads LLP (www.mmwr.com), where he is Vice-Chair of the Litigation Department. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 551-7707 or by e-mail at firstname.lastname@example.org.