Mayday!

More than 300 New York City firefighters lost their lives in the Sept. 11, 2001, attack on the World Trade Center. Families of 12 of those firefighters filed a $5 billion lawsuit alleging their relatives died because radios failed to receive evacuation orders before the towers collapsed.

Although it is very possible a jury may never hear the case, the lawsuit’s underlying message of increased accountability is being heard clearly throughout the mobile radio industry.

“With the emergence of the first-responder industry … people are going to be less tolerant of equipment that is not effective for use,” said Richard Salem, lead attorney for the families in the lawsuit against the City of New York and Motorola, the parties the plaintiffs claim were responsible for ensuring that the radio system worked on Sept. 11, 2001 (see sidebar). “We don’t even like a lost call when we use a cell phone. And there’s no reason for it — the fundamental technology and equipment are there.”

Given this, Salem said it is “inevitable” that there will be more lawsuits filed when public-safety officers are injured or killed in future incidents when radio systems do not work properly — especially after large damages are awarded in such a case.

“Once firefighters in Peoria, Santa Monica and Austin realize that this happened in New York, I think they will start asking questions,” he said.

And the possibility of large awards is very real, because public-safety radio communications can have a life-or-death impact on those willing to risk their lives for the very jurors who would assess damages, according to Karl Protil, a shareholder in the Rockville, Md., law firm of Shulman, Rogers, Gandal, Pordy & Ecker.

“Human nature being what it is, if you have a poor widow or children without a father, it’s going to impact a jury … even though the judge will instruct the jury not to let it prejudice them,” Protil said. “It has to be a concern for anyone trying to defend one of these cases. Anyone who says otherwise is lying, I think.”

The specter of legal action could permeate almost every step in the process of providing radio support for public-safety personnel, from contractual practices to day-to-day operations to a willingness to adopt innovations. And many of these potential changes have unwanted implications, according to Vincent Stile, chairman of the Association of Public-Safety Communications Officials (APCO) International.

“If we always have to be concerned about the possibility of a lawsuit, … that would put a damper on everything that we do,” he said.

The process begins with the awarding and wording of contracts. It’s generally accepted that no radio system can provide 100% coverage of any significant geographic area all the time, even with unlimited funds to spend. The challenge is much greater for government entities faced with the prospect of meeting the communications needs of first responders within budgets already stretched by unfunded homeland-security mandates from the federal government.

“From an economic model, the question becomes what is plausible to spend,” Salem said. “There should be an economical way to supply emergency-service personnel with a communication system that will work.”

In light of the New York City lawsuit, ensuring that systems are designed correctly could lead to the hiring of more independent consultants to help with this phase of communications projects, according to Dana Hansen, superintendent of communications for the Denver police department. And virtually everyone interviewed for this article agreed that future specifications and contracts likely will be more carefully worded, while vendors will take additional measures to make sure the capabilities of the system being installed are clearly understood.

“I also think it will spur the manufacturers to ensure that the product will be exactly what they represented,” Protil said.

Exactly how much coverage is enough remains a question without a clear legal answer, and each hole in radio coverage represents a potential source of litigation. But Stile said he believes there should be no obligations for governments to accept the most complete system if the price is out of line, noting that “sometimes, the Cadillac [system] has bells and whistles that you don’t need.”

Perhaps a more sensitive question is whether an entity is legally liable if it decides not to appropriate available funding to resolve a known problem in the radio system. In the interim, there are instances when communications leaders have little choice but to hold their breath when a potential communications problem becomes evident, Hansen said.

“We’ve experienced that in Denver with some of the new buildings being built,” she said. “I just try to put people on notice and keep the issue alive, and pray that nothing bad happens until we can get a grant to fix it.”

In other cases, in-house communications personnel are able to provide temporary fixes to dead spots in radio coverage by deploying portable repeaters and other “resourceful” techniques, Stile said. Indeed, one of the strengths of many public-safety communications departments is the ability to “improvise” solutions when there is a shortage of money or time to address a problem, he said.

But such actions may not be appreciated as much in the future, as they could create legal issues involving vendors’ warranties, Protil said. While a company may be willing to meet performance standards for its equipment, it may not be willing to accept responsibility if the system is changed by the customer.

“I think that’s what’s going to happen, as well as a re-evaluation of the [vendor-customer] relationship,” Protil said. “The practice of patchwork solutions is going to have to stop.”

Another possibility is that vendors will seek greater input into day-to-day operations and maintenance of the radio systems. Hansen said she hasn’t heard of such situations yet, but she can imagine a time when vendors will want to ensure that software releases are installed in a timely manner and that emergency personnel are trained properly to use the equipment.

“A lot of time, it comes down to training, from dispatchers to … people in the field,” Hansen said. “Many times, it’s not a technical problem, it’s a people problem.”

In other instances, problems are more elusive and attributable to Mother Nature. While a factor as stagnant as geographic terrain can greatly impact the ability to receive radio signals, it also can be altered by something as dynamic as the growth of leaves on trees. Indeed, Stile said he annually has to adjust the power of radio signals in part of his Suffolk County, N.Y., communications system to offset the fact that leaves growing on trees in the summer act as mini-antennas and absorb a noticeable portion of the signals.

In Stile’s case, his considerable experience has allowed him to learn about this situation and its impact on the public-safety radio system. However, Hansen questions whether it would be fair legally to require all communications leaders to be able to diagnose such issues.

“At that point, you have to ask, ‘What’s reasonable?’” Hansen said. “Is it reasonable to expect someone new to know that? I don’t think so.”

Whether a jury agrees is anybody’s guess. And such uncertainty has the potential to cause public-safety organizations to adopt only proven systems while eschewing innovative technologies. Hansen said she does not believe this will occur but cautions that backup plans need to be in place in case the new technology proves to have bugs that prevent it from being deployed.

“I think you’ve got to have a fallback when you’re beta testing until you know the new system works,” she said.

Stile said he hopes the industry never adopts a litigation-avoidance mindset that retards innovation in mobile-radio communications, because that eventually could jeopardize the lives of emergency responders and the civilians they are trying to protect.

“I would hope we don’t go backward; that would be the wrong thing to do,” Stile said. “It’s premature to talk about right now, but if everybody’s worried about getting sued, nobody will do anything. And then, the public really loses.”

Regardless of whether lawsuits generate large damage awards in the near future, everyone interviewed agreed that the potential of litigation raises the stakes of the already-serious business of public-safety radio communications yet another notch for everyone involved — vendors, elected officials, communications staffs and first responders who need to be trained.

“It makes it compelling for public-safety manufacturers to rise to a higher level of quality,” Salem said. “And municipal, state and federal government officials have to demand that.”

It’s an evolution that has been a focal point for some time, particularly since the events of Sept. 11, Hansen said.

“I think people are going to pay attention more — from all sides. I know we’re demanding more from our vendor … but it’s important for me to keep up my end of the bargain, as well.”

9/11 Timeline Title Here

(all times are EDT)

Source: CNN.com, Lawsuit against the City of New York and Motorola

Lawsuit may not reach court, but allegations persist

Were the deaths of firefighters in the collapse of World Trade Center simply unfortunate byproducts of a terrorist act, or could they have been avoided if the Fire Department of New York had a better radio system in place on Sept. 11, 2001?

This question is at the heart of a $5 billion lawsuit against New York City and Motorola that likely will never be heard by a jury. All 12 plaintiff families of deceased firefighters have sought aid from a special fund for Sept. 11 survivors, which may make them ineligible to pursue such litigation.

If the case isn’t heard, it would be unfair, according to Richard Salem, lead attorney for the plaintiffs in the case.

“We realize that the court and the public, in general, would prefer that the travesty and tragedy of 9/11 be put into the annals of history,” Salem said. “However, did Congress intend to exonerate wrongdoers for their actions, be it before 9/11 or during 9/11 [by creating the victims’ fund]? I don’t think so.”

And Salem said there was wrongdoing, which is why plaintiffs believe they have grounds for a lawsuit. Normally, litigation is not allowed in firefighter fatalities, because the job is recognized as inherently dangerous. However, litigation is allowed when the deaths are caused by the city knowingly giving ineffective equipment to firefighters or because of a legal violation. Both of these conditions apply in this case, Salem said.

Problems with the radio system were well known. After the 1993 bombing of the World Trade Center, FDNY’s inability to communicate with firefighters on the upper floors of the building was cited as an issue that needed to be addressed. However, essentially the same system was in place on Sept. 11, 2001, according to Salem.

“Both Motorola and FDNY knew that the Saber radios in the hands of firefighters on 9/11 did not, and could not, work in high-rise buildings,” Salem said. “Then, they sent them into high-rise buildings and told them to go up, up, up.

“The law requires an employer to provide equipment that is free from recognized risk and hazard and suitable for safety and use within its intended environment. To the extent that an employer can replace gear [to address a problem], it is required to do so.”

In fact, FDNY tried to replace its radios after the WTC bombing, spending at least $13.9 million for 3818 XTS 3500 radios, which Motorola promoted as feature-rich digital handsets that could be substituted for the discontinued Saber line of products. The XTS 3500 radios finally were deployed two years after the agreement was signed, only to be shelved after a week of complaints, including alleged nontransmission of a firefighter’s call while trapped in the basement of a house in Queens in March 2001.

After reviewing the XTS 3500 contract, then-New York City Comptroller Alan Hevesi said the absence of competitive bids for a new radio system broke the city’s contracting rules — a violation that provides further grounds for plaintiffs to pursue legal action, according to Salem.

Hevesi also claimed the XTS 3500 “may have [been] a prototype, rather than a fully developed radio” and that it was “irresponsible and dangerous” to deploy the radios before they were tested in the field.

“It appears that Motorola allowed the FDNY to unknowingly become a large-scale testing ground for the XTS 3500 radio to the possible detriment of New York City firefighters,” Hevesi wrote in a May 2001 letter.

Motorola asserts it properly followed procurement procedures and conducted all tests requested by FDNY, according to spokeswoman Pat Sturmon.

“Before the radios were ever deployed, they went through an extensive testing procedure, including water submergibility,” Sturmon said. “And Motorola did meet FDNY’s very stringent specifications.”

In terms of the events of Sept. 11, Motorola initially provided the following prepared statement from John McFadden, vice president of sales for the North America Group’s northern division.

“The terrorist attacks on the World Trade Center were horrible and tragic, and our hearts go out to those who lost family members and loved ones,” McFadden said. “However, there is no basis for the claims against Motorola, and we will defend ourselves against these false accusations.”

“As to the events on Sept. 11, there are personal and news-media reports that demonstrate that New York City firefighters were able to communicate through Motorola two-way radios. In fact, lives were saved that day because of these communications.”

In a subsequent interview, McFadden said the primary change in FDNY’s radio system after the 1993 World Trade Center bombing was that the Port Authority of New York and New Jersey installed a repeater on a nearby building to enhance radio coverage on the towers’ upper floors. But “no one knows what happened to that repeater” on Sept. 11, McFadden said.

But it would not have mattered whether the repeater worked or the XTS 3500s had been used on Sept. 11, McFadden said. The Saber radios worked as designed, as reflected by communications with a firefighter near where the plane hit the south tower.

The problem is that New York City has just one channel for fireground communications, which is adequate to handle the peer-to-peer communications necessary for most incidents, McFadden said. However, on Sept. 11, hundreds of firefighters tried to talk on the one channel, which meant most communications could not be transmitted, he said.

“How could you design a system to handle that?” McFadden said.

But police-department radios worked, proving the day’s unique circumstances could be overcome, Salem said.

“Either there is technology that works in high-rise buildings or there isn’t. If there is, then it needs to be in there. If there isn’t, at the very least, we need to warn the firefighters … before they risk their lives.”

Road to NYC radio litigation

February 1993 — Bombing at World Trade Center reveals a number of problems in the communications system used by FDNY. A report cites the need to address the inability to communicate with firefighters in the upper floors of the World Trade Center using Motorola’s Saber I analog “handi-talkies” and in-car repeater systems.

April 1997 — City of New York agrees to purchase 750 Saber I radios from Motorola for $2.88 million over three years in a sole-source replacement contract.

May 1998 — Motorola informs New York City that the Saber I radios will be discontinued. The vendor offers to substitute the Saber radios with XTS 3000 models. During the same year, Motorola introduces the Saber III product.

February 1999 — Motorola says it no longer manufactures Saber III radios and offers to substitute them with XTS 3500 radios, which are new digital models.

December 1999 — Over a three-month period, FDNY places $13.9 million in orders with Motorola for 3,818 XTS 3500 radios as a substitute for the $2.88 million contract for 750 Saber I radios in 1997, meaning no competitive bids are sought. First 2,700 radios delivered are returned because they were not waterproof.

March 2001 — FDNY puts XTS 3500 radios into service. After numerous complaints and a life-threatening incident involving a firefighter in Queens, the radios are pulled from service a week later.

April 2001 — New York City Comptroller Alan Hevesi releases a review that states the XTS radios were not field tested before being put into service in March 2001 and orders payments to Motorola be stopped. Hevesi also claims FDNY broke contracting rules by purchasing a new radio system without competitive bids as a substitute for a contract for replacement radios. A week later, a Motorola official testifies there is nothing technically wrong with the radios.

May 2001 — Hevesi asks Motorola to recall the 3,818 XTS 3500 radios sold to the FDNY. Hevesi claims the XTS 3500 radios were an undeveloped prototype when sold to the city in 1999 and that Motorola refuses to identify other buyers of the radios.

September 2001 — Using essentially the same Saber radio technology that was used during the 1993 bombings, firefighters allegedly are unable to hear evacuation orders before the north tower of the World Trade Center collapses.

Sources: New York City Comptroller’s Office, Lawsuit against City of New York and Motorola