NFPA: Legally Blinded?

By Joe Salimando

This might come across as critical of the NFPA in some respects -- but I'm not. I work with and am friends with people who have enormous respect for the NFPA and the National Electrical Code. Mike Holt is one of them; he is a religious man, and sometimes I wonder if he thinks the Bible AND the NEC are, both of them, the received Word. A.J. Pearson, the executive director of the IBEW-NECA national training organization (the National Joint Apprenticeship & Training Committee of the organized electrical construction industry), is the biggest single buyer of NEC Code Books. I believe he purchased 125,000 of NEC 2002. I help him get his newsletters out the door.

These are not the best of times for the National Fire Protection Association -- the sponsor of the NEC, which is put together by volunteers. First, the NFPA launched a magazine NECdigest, a few years ago . . . right into the teeth of a major economic decline or malaise or whatever the heck it is we're dealing with. It is kind of like launching a sailboat into a hurricane; the last such instance was seen in the 1991-93 recession, when the McPartland family launched a magazine that didn't last a year. NFPA's magazine in 2003 went from an every-other-month publication to a quarterly. One of the first things I learned in the magazine business -- from one of my two mentors, Dick Freeman -- was "quarterlies do not exist, as far as the reader is concerned."

Next -- and more significantly -- the NFPA became just a bit upset with the competition from other code folks (the BOCA/ICC wing). BOCA and ICC have a full card deck of Aces up their collective sleeves . . . municipalities are moving away from specialized single codes to whole-building codes; BOCA's members are the folks who push local code adoption and enforcement; and so on. The NFPA recently put forward its own building code (covering the other stuff beyond electrical), called NFPA 5000 . . . and thus far it's not been adopted by all that many people. BOMA (Building Owners and Managers Association) came out against NFPA 5000.

But the latest disaster, which did not affect the NFPA directly, might just suck the air out of the organization -- eventually. The Supreme Court let stand (without comment) a federal Court of Appeals decision that, essentially, says this:

 

If a code is adopted as a law by a municipality, it must be available . . . freely . . . to those who fall under the law.

Sounds reasonable? Of course. Remember, the NEC gets its "oomph" by the fact that virtually every one of this country's municipalities adopts it, either whole or in large part, as the law. The NEC isn't a set of guidelines or suggestions -- it's THE LAW (where adopted in whole or in part) -- enforced by inspectors in the employ of the municipality. If you screw with the NEC, the inspector (or the "authority having jurisdiction," as the NEC puts it) has the right to order you to rip the whole installation out and do it right the second time.

What's the problem? First, more than one-half of NFPA's revenue (I have been told) comes from the three-year NEC code-revision cycle. Every 36 months, the electrical code changes -- and the NFPA sells a whole bunch of books to A.J. Pearson . . . and single copies or quantities to one heck of a lot of other people.

The case that the Supreme Court ignored was stimulated when an entrepreneur posted a code online for those in the area in Texas served by his Web site. The purveyor of that code, the Southern Building Code Congress International, sued to enforce its copyright of the code. The Circuit Court said: Once it becomes the law, the prevailing public interest is in making it available to people -- free -- so they can know what the law is.

When the Internet first came to the fore in the second half of the 1990s, the NEC was posted online in several places. The NFPA worked diligently (without legal action, to my knowledge) to point out to the folks who had posted it that they were hurting the electrical industry. As far as I knew at the time, the NEC was taken off the Web sites -- in every case.

Now -- at least in the area covered by the Circuit Court's ruling (Texas and a few other states), it is LEGAL to post the NEC (or any other code adopted or incorporated in a local law) . . and break the copyright. Therefore, in theory, some savvy businessperson could post the info, and other savvy businesspersons could download the damn thing onto their PDAs . . . and walk around with a free copy of the NEC in their pockets.

What happens next? I don't know. One would hope that no one would break the NEC copyright; but, heck, the Internet enables folks to post the NEC and other Codes to Web sites based in Sweden. If I understand the legal issues at stake here, what needs to happen is:

  1. someone outside of the Texas-area federal Circuit Court's jurisdiction posts the NEC or some other code onto the Web;

  2. the owner of that code (NFPA or SBCCI or anyone else) obtains very good lawyers and convinces ANOTHER federal Circuit Court to make a different decision;

  3. that different decision is appealed to the Supreme Court, and this time the Supremes agree to hear it -- after all, there are conflicting Circuit Court decisions, the Supremes gotta choose; and

  4. in that hearing of the case, the Supreme Court sees the benefits of HAVING an NFPA and a consensus National Electrical Code as being "the greater good" than posting the law online and destroying the NEC (and other such codes).

However, while I am no lawyer, I could make a pretty strong argument for the other side:

  1. In what kind of country, other than a banana republic, are citizens and companies made to abide by laws which are not freely available? Going back to ancient history, the idea of "laws" included POSTING THEM SOMEWHERE -- that's what the Greeks and Romans did.

  2. What kind of legal system do we have that forces people to PAY to find out what the law is?

I probably could go on from there. But I regard those two points as devastating to the arguments most people in our industry would make.

Will the NFPA (and other code-making agencies that charge for their books) sue everybody, everywhere, who takes an entrepreneurial approach and defends it as a legal action? I would guess not -- and I would guess this to be a losing position.

My line of reasoning might be completely erroneous. However, if I've got the sequence of events and arguments down pat, it would seem that -- at some future date -- no one would have to buy the NEC from the NFPA. Whether that date is 2003 or 2005 doesn't matter; it's bad for the NFPA. Folks will download the NEC and load it onto their PDAs, PCs, and laptops . . . at no cost. I don't see how the NFPA can make up for the loss, if it happens. Will folks still buy code books in bulk, if the NEC is posted online? I don't know that, either.

Alternatively, the NFPA would need an alternate means of support. Will electrical contractors, distributors, manufacturers, reps, and end-users kick in the money NFPA needs to continue this process? I know the answer "should" be yes, but it might well end up as No. I don't think anyone in this business makes a lot of money right now. Further, I don't remember a lot of folks making a great deal of money in the mid 1990s. Sure, a lot of profits were made in "the boom" . . . but I don't expect to see business go crazy like that again in my lifetime. Do you?

If all of this comes to pass, could the 2005 NEC be the last one for a while? It's crossed my mind. Is this good for anyone -- in the electrical industry? For people who live and work in buildings (i.e, 99.9% of us)? No. I would guess you might say the Circuit Court made the "right" call, legally; the interest that the public has in knowing what the law is MUST overcome the interest of a copyright holder.

But the alternative that has been unleashed here, as a result of what perhaps was a legally correct decision, may well end up characterized, on down the road, as chaos.

JOSEPH A SALIMANDO, EFJ Enterprises – 703-255-1428
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