Community associations were once free to adopt and
enforce restrictions and regulations on satellite dishes and other
types of antennas. Following the enactment of the Telecommunications
Act of 1996, federal law preempted all state, local and other non-governmental
restrictions regulating satellites and antennas, thus, the landscape
for community and condominium associations was significantly changed.
In October 1996, the Federal Communications Commission (“FCC”)
adopted the Over-the-Air Reception Devices Rule (“OTARD rule” or “rule”)
concerning governmental and non-governmental restrictions on viewers'
ability to receive video programming signals from direct broadcast
satellites ("DBS"), multi-channel multi-point distribution
(wireless cable) providers ("MMDS"), and television broadcast
stations ("TVBS").
The OTARD rule prohibits entities, such as community
associations, from creating restrictions that impair the installation,
maintenance or use of antennas used to receive video programming.
It applies to video antennas including direct-to-home satellite
dishes that are less than one meter (39.37") in diameter (or
of any size in Alaska ), TV antennas, and wireless cable antennas.
The OTARD rule prohibits restrictions that: (1) unreasonably delay
or prevent installation, maintenance or use; (2) unreasonably increase
the cost of installation, maintenance or use; or (3) preclude reception
of an acceptable quality signal. Since its adoption, the FCC has
amended the rule so that it also applies to rental property and
to customer-end antennas that receive and transmit fixed wireless
signals.
The OTARD rule applies to viewers who place antennas
that meet size limitations on property that they own or rent and
that is within their exclusive use or control, including condominium
owners and cooperative owners, and tenants who have an area where
they have exclusive use, such as a balcony or patio, in which to
install the antenna. The OTARD rule applies to town homes and manufactured
homes, as well as to single family homes. The rule does not apply
to antennas for AM/FM radio, amateur HAM radio or Internet.
The OTARD rule allows local governments, community
associations and landlords to enforce restrictions that do not
impair the installation, maintenance or use of the types of antennas
described above, as well as restrictions needed for safety or historic
preservation. Under some circumstances, a community association
or landlord can restrict the installation of individual antennas
if a central or common antenna is available. The OTARD rule does
not apply to common areas that are owned by a landlord, a community
association, or jointly by condominium or cooperative owners. Common
areas may include the roof or exterior wall of a multiple dwelling
unit. Therefore, restrictions on antennas installed in or on such
common areas are enforceable.
Restrictions that do not impair a viewer's ability
to receive video programming services remain enforceable, as do
safety rules and rules in certain historical districts, even if
such rules impair reception. As a result, community associations
may still require an owner to comply with rules governing the means,
method, and location of the antenna installation, as long as no
unreasonable delay or cost is involved and an acceptable quality
signal can be obtained. Such restrictions might include requiring
compliance with building codes, screening, unobtrusive placement,
painting certain parts of the antenna, camouflage, and other reasonable
steps to ensure the safety of the installation and minimize the
visual effect on the community. The FCC rule is limited in its
application to antennas installed on property within the exclusive
use or control of the viewer or in which the viewer has a direct
or indirect ownership interest. In other words, the OTARD rule
does not authorize antenna installation on common property or areas
unless the owner has exclusive control or use of the property,
such as a balcony or patio, since these are often limited common
elements reserved for the exclusive use of the unit owner.
There are three criteria used by the FCC in determining
whether an association restriction impairs an owner or viewer's
ability to access satellite or antenna signals. A restriction impairs
a viewer's ability to receive signals if it: (1) unreasonably delays
or prevents installation, maintenance or use of; or (2) unreasonably
increases the cost of, installation, maintenance or use of; or
(3) precludes a subscriber from receiving an acceptable quality
signal from one of these antennas. The rule does not prohibit restrictions
that merely affect a viewer's ability to receive signals as long
as the restrictions do not impair. Therefore, architectural restrictions
that affect but do not impair a viewer's ability to receive signals
are permissible.
Restrictions that “unreasonably delay” or “prevent
installation, maintenance or use of an antenna” are also prohibited.
Any restriction or covenant that prohibits all antennas would prevent
users from receiving signals and is prohibited by the OTARD rule.
Procedural requirements imposed by an association can also impair
the ability to receive service. The FCC has found that approval
processes of the location of the antenna, even if expedited, cause
an unreasonable delay. In addition, any type of administrative
fees imposed is an unreasonable cost. Therefore, an association
cannot charge a fee for reviewing notification forms or monitoring
compliance with any guidelines it has established.
Restrictions preventing a homeowner from receiving
an “acceptable quality signal” are prohibited. A
requirement that an antenna be placed in a position where reception
would be impossible or would be substantially degraded would be
conflict with the FCC rule. In contrast, an association regulation
that requires antennas be placed to the extent feasible in a location
not visible from the street would be permitted if the placement
allows reception of an acceptable quality signal, and does not
unreasonably delay or increase the cost of installation, maintenance
or use. Delay and increased cost are valid justifications for installing
an antenna in a non-preferred location, even if an acceptable quality
signal may be obtained in the preferred location.
There are some permissible restrictions against satellite
dishes and antennas. If there are legitimate safety concerns, restrictions
are permitted, even if they impair reception or delay or increase
the cost of installation, maintenance or use of the antenna. An
association can enforce a safety restriction while the FCC reviews
the validity of the restriction. Valid safety restrictions include
preventing people from installing antennas on fire escapes, restrictions
requiring that a person not place an antenna within a certain distance
from a power line, electrical code requirements to properly ground
the antenna, restrictions prohibiting installation at a location
that will obstruct a driver's view of an intersection or street,
and installation specifications and requirements that describe
proper methods to secure an antenna.
The safety reason for the restriction must be written
in a document that is readily available to antenna users prior
to installation, so that a person wanting to install an antenna
knows what restrictions apply. The restriction cannot impose a
more burdensome requirement than is needed to ensure safety. In
addition, the restriction must explain the reason for the safety
concern. A safety restriction will not be valid without a specific
explanation of the need for a safety restriction.
Restrictions in historic areas may also be valid.
Because certain areas are considered uniquely historical and strive
to maintain the historical nature of their community, these areas
are exempted from the Rule. To qualify as an exempt area, the area
must be listed or eligible for listing in the National Register
of Historic Places. In addition, the area cannot restrict antennas
if such a restriction would not be applied to the extent applicable
in a non-discriminatory manner to other modern structures that
are comparable in size, weight and appearance and to which local
regulation would normally apply. Valid historical areas cannot
impose a more burdensome requirement than is needed to ensure the
historic preservation goal.
Another permissible restriction for an association
may require residents to comply with a notice or registration process.
For routine installations, a simple notification form could be
required, indicating the type of antenna to be installed, the site,
method and manner of antenna installation anticipated. For non-routine
installations, such as when a valid safety restriction would be
violated by the installation, an explanation could be required
on a form outlining why the antenna must be sited in this area/manner.
Although an association can adopt rules detailing preferred locations,
a satellite or antenna user can install an antenna in a non-preferred
location without seeking approval, unless there is a valid safety
or historic preservation concern, if installation in a preferred
location would be impaired.
As for condominium associations, owners can install
an antenna on balcony or patio if the patio or balcony is
a limited common element, restricted for the owner's exclusive
use. Again, installation rules would be permissible and may require
that the owner cover the antenna as long as such a requirement
does not impair an owner's ability to receive a signal or unreasonably
delay or increase the cost of installation, maintenance or use.
When a conflict arises concerning the validity of
a restriction, the local government, community association, property
owner, or management entity that is trying to enforce the restriction
has the burden of proving that the restriction is valid. This means
that no matter who questions the validity of the restriction, the
burden will always be on the entity seeking to enforce the restriction
to prove that the restriction is permitted under the rule or that
it qualifies for a waiver.
In light of the rapidly changing technology in telecommunications,
it is important for you to stay informed on these types of issues
faced both by homeowners and community associations. You can find
more information about the FCC rules governing satellites and antennas
at www.fcc.gov.
Note: Condominium boards have the right to prohibit residents from attaching the dish or any appurtenant equipment to the limited common element such as walls or fence boards. Further, the limited common element is defined as the airspace contained within the plan bounded by the top of the fence or railing, meaning that boards may prohibit condo owners from installing a dish above the fence line or through the pickets.
