Archives

Antenna Restrictions in MDUs Under the OTARD Rules

 

The FCC’s Over-the-Air-Reception-Device (OTARD) rule is set forth in 47 C.F.R. § 1.4000. The OTARD Rule was promulgated pursuant to section 207 of the Telecommunications Act of 1996, which provides, “the Commission shall … promulgate regulations to prohibit restrictions that impair a view’s ability to receive video programming services through devices designed for over-the-air reception of television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services.”  47 U.S.C. § 207.

The OTARD rule preempts,

… [a]ny restriction, including but not limited to any state or local law or regulation, including zoning, land-use, or building regulations, or any private covenant, contract provision, lease provision, homeowners' association rule or similar restriction, on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property that impairs the installation, maintenance, or use of:

(i) An antenna that is:

(A) Used to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed     wireless signals via satellite …

This Memorandum attempts to outline the sort of restrictions that an MDU owner or other property manager (including a condominium or homeowners’ association)[1][1] may impose on the placement of antennas without violating the OTARD rule.

In order to determine what restrictions may be permitted, it is useful to conduct a step-by-step analysis of OTARD’s scope.

1.      Covered Antenna

The OTARD rule applies to antenna that are one meter (39 inches) or less in diameter and are designed to: (a) receive direct broadcast satellite service (including direct-to-home satellite service or fixed wireless signals from satellite), or (b) receive video programming services via multipoint distribution services. Antenna used to receive broadcast television signals are also covered. 47 C.F.R. § 1.4000(a)(1)(i)-(iii). The most common type of covered antenna are the typical 18 to 24 inch dish receivers used to receive video signals from DirecTV and Dish Network.

Therefore, an MDU owner may restrict the use or placement of any antenna that exceeds one meter in diameter, or is not the type of antenna subject to the rule.

2.      Covered Locations

The OTARD rule applies to antennas that are located “on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property.” 47 C.F.R. § 1.4000(a)(1).

In an MDU (apartment or condominium) environment, the area of exclusive control can usually be determined by imagining the resident’s living space wrapped tightly with Saran Wrap; if the resident’s satellite dish pushes against or penetrates the Saran Wrap, it is not protected from regulation by the OTARD rule. Accordingly, management may prohibit or otherwise restrict the use or placement of satellite dishes on exterior walls,[2][2] in common areas or “restricted access” property such as rooftops.

In single-family home developments, the areas within the owner’s exclusive control are more extensive than in the MDU environment, and accordingly, the ability of a home owners’ association to restrict antenna is that much more restricted. In general, the owner maintains exclusive control over all of his/her property and any improvements, and that exclusive control encompasses the placement of antennas covered by OTARD.

Just as the lease determines the property within a tenant’s exclusive control in an MDU building, the governing documents in a condominium or planned unit development determine the area within an owner’s exclusive control in the single-family home setting.

3.      Preempted Restrictions

The OTARD rule preempts any restriction that “that impairs the installation, maintenance, or use of” a covered antenna. In various rulings, the FCC has made it clear that this language will be interpreted very restrictively, such that preemption will be favored where there is any ambiguity regarding whether or not a management restriction “impairs” the placement or use of antenna.

A restriction “impairs” if it (1) unreasonably delays or prevents installation, maintenance, or use; (2) unreasonably increases the cost of installation, maintenance or use; or (3) precludes reception of an acceptable quality signal. 47 C.F.R. § 1.4000(a)(3).

An example of a restriction that “unreasonably delays” is a procedural requirement that MDU residents or home owners to obtain management’s prior approval for antenna installation and use. The FCC’s Fact Sheet indicates that such procedural requirements are “generally prohibited,” although “a simple notification process might be permissible” if it does not delay or increase the cost of installation. Another example would be a requirement that antennas be installed by professional installers.

The difference between a prior approval process and a “simple notification process” is important and results in some inefficiency. Assuming, for example, that management has formulated a valid safety restriction, requiring prior approval for a proposed antenna installation would allow the parties to determine whether the installation complies with the restriction before money and time is invested in the installation. On the other hand, a simple notification process allows the installation to go forward, such that compliance with the restriction can be determined only after the installation is complete. Nonetheless, the FCC’s position is that notification requirements are permitted, but prior approval requirements are generally prohibited.

With regard to “unreasonable increases” in costs, the OTARD rule states, “[a]ny fee or cost imposed on a user by rule, law or restriction must be reasonable in light of the cost of the equipment or services and the rule, law, regulation or restriction’s treatment of comparable devices.” 47 C.F.R. § 1.4000(a)(4). The strictness with which the FCC interprets this provision of the rule is indicated by a decision preempting a homeowners’ association from requiring a $5 antenna application fee.

The “acceptable quality signal” criterion applies to antenna placement restrictions, including height and location. While a broadcast television antenna is subject to impairment depending on placement, digital signals are either received or not received; digital reception devices require an unobstructed view of the satellite or other source of the signal.

4.      Exceptions

The OTARD rule exempts antenna restrictions that are necessary to address valid and clearly articulated safety or historic preservation issues, provided such restrictions are nondiscriminatory, as narrowly tailored as possible and not otherwise burdensome. 47 C.F.R. § 1.4000(b).

A valid safety restriction must specifically describe the safety concern, such that the nexus between the potential danger and the nature of the restriction is clear. Specifically, the burden is on management to demonstrate that: (1) the legitimate safety objective of the restriction is clearly defined; (2) the restriction is necessary to accomplish the safety objective; (3) the restriction must be no more burdensome to affected antenna users than is necessary to achieve the defined safety objective; and (4) the restriction is not discriminatory either as written or applied. Examples of valid safety restrictions include “fire codes preventing people from installing antennas on fire escapes,” and prohibiting the placement of antennas close to power lines.

The historic preservation exception is reserved for sites that are included in, or eligible for inclusion in the National Register of Historic Places, and any restrictions imposed on this basis must be narrowly drawn.

5.      Permitted Restrictions

Given the FCC’s strict interpretation of the OTARD rule, the key to formulating a valid restriction would seem to be using an approach that cannot be construed as a veiled attempt to suppress or discourage users from installing covered antennas, and rests solely on reasonable and valid considerations of safety, aesthetics or historic preservation. The restriction must not be or appear to be a pretext.

The FCC’s Memorandum and Order in the Victor Frankfurt Petition for Declaratory Ruling (CSR-5238-O, rel. Feb. 7, 2001) illustrates the distinction between a valid and a pretextual safety restriction. A homeowners’ association’s “Guidelines” required prior approval for antenna installations to determine whether an installation complied with a restriction designed to ensure that antennas be installed so as to withstand high winds (among other concerns).

The FCC ruled that the  Guidelines’ general statement that they were enacted “in the interest of promoting the safety and welfare of the Association” was not a sufficient articulation of management’s safety concerns to bring the restrictions within the safety exception to the OTARD rule. However, the Association’s mounting, windload and powerline guidelines did address a valid safety objective that was “clearly apparent on the face of the restriction,” and therefore justified.  While a restriction based on the general statement of safety concerns could be discriminatory and therefore pretextual, restrictions based on specific concerns such as windload and powerline safety were hardly capable of pretextual application.

The Guidelines also required that an antenna user submit an “Architectural and/or Appearance Application” to management prior to installing the antenna, to determine whether the installation complied with the safety restrictions. The FCC determined that the very title of the application revealed its pretextual nature, because “architecture” and “appearance” are unrelated to the Association’s legitimate safety concerns. Second, the safety objective of the prior approval requirement could be achieved by a less burdensome requirement that the installation be inspected for compliance after it was completed.

The only way New Century can truly ensure that an antenna installation satisfies New Century’s safety installation Guidelines is to have a qualified person inspect the installation once the installation is complete. A legitimate restriction to ensure compliance with the safety restrictions would be to require the antenna user to notify the Association that the antenna user is installing an antenna and to submit the antenna’s brochure.  After the installation, the Association could, if it desired, inspect the installation for compliance with the antenna brochure’s installation instructions and the Guidelines.

The Frankfurt decision tells us that (1) a valid safety restriction must be very specific both as to the nature of the safety issue and the manner in which the restriction addresses the safety issue; and (2) even minimal prior approval requirements will be preempted to the extent they require anything more than prior notice of the user’s antenna placement plans.

Likewise, the FCC has indicated that management may impose restrictions (or “preferences”) based on aesthetic grounds, as long as the required location provides an adequate quality signal and installation in that location does not cause the user unreasonable delay or expense. Where either of these conditions are not met, such aesthetic restrictions must allow for exceptions.

Before imposing a location preference, management should conduct testing in the preferred areas to ensure that antennas placed in those areas can receive an adequate signal. Moreover, the “unreasonable delay or expense” criteria will be strictly construed.

As discussed in the FCC’s Memorandum and Order in the Daniel and Corey Roberts Petition for Declaratory Ruling (CSR 5531-0, rel. May 24, 2001), such aesthetic restrictions, while permissible, cannot require applications for prior approval insofar as such a requirement creates unreasonable delays and costs and thus a disincentive for potential antenna users.

More recently, the FCC clarified that when seeking a waiver of OTARD’s provisions based on safety and aesthetic considerations, the question “is not whether a waiver of the Rule’s provisions is warranted, but whether that waiver is necessary…”  Memorandum Opinion and Order, In the Matter of: Shadow Wood Condominium Association (CSR-6890-O, rel. Jan. 23, 2006). The Association sought to impose a restriction requiring residents to install their DBS antennas on brackets on the buildings’ roofs, and to pay a $75 “bracket fee.”

With regard to the safety and aesthetic rationales for the restriction, the Association did not present specific evidence establishing an identifiable nexus between the safety and aesthetic concerns and the nature of the restriction. With regard to the bracket fee, the FCC noted, “a requirement that the antenna be installed in a designated common area is reasonable so long as it does not involve installation costs that exceed those that a homeowner would incur if installing the antenna in an exclusive use area. To the extent that greater costs are involved, a homeowners’ association would be able to enforce its restriction only if it pays the difference in those costs.”  Because the Association had not presented evidence affirmatively showing that the $75 fee was equal to or less than the cost of installing an antenna in a resident’s exclusive use area, the fee was not considered “reasonable” under OTARD.

These decisions provide a framework for drafting restrictions that provide a real benefit to management without violating the OTARD rule. For example, management might wish to require a security deposit or liability insurance to protect itself from possible damage resulting from the placement of antennas. Although the FCC has not yet determined the validity of such measures, a requirement of liability insurance for satellite dishes but not for other kinds of objects placed on balconies or patios would likely be seen as “discriminatory” and pretextual and therefore not permitted. Likewise, a security deposit to protect management from damage to property resulting from the installation of antennas would probably not violate OTARD as long as the amount of the deposit is “reasonable,” meaning, in an amount reasonably related to the specific type of damage likely to occur.

By: Carl E. Kandutsch, Ph.D., J.D.

email: ckandutsch@adelphia.net

February 7, 2006


[1][1] Depending on the context, we refer to the party seeking to regulate satellite antennas as the “MDU owner,” the “property manager” or “management.”

 

[2][2] The FCC’s Fact Sheet on OTARD specifies that the rule does not preempt restrictions that prohibit drilling through exterior walls. See, http://www.fcc.gov/mb/facts/otard.html.

___________________________________________________________________________________

Here is the link to the FCC Information on OTARD: http://www.fcc.gov/guides/over-air-reception-devices-rule

Over-the-Air Reception Devices

Docket No: CS 96-83

Title: Implementation of Section 207 of the Telecommunications Act of 1996

Restrictions on Over-the-Air Reception Devices; Television Broadcast Service and Multichannel Multipoint Distribution Service

August 6, 1996 –fcc96-328

In re Preemption of Local Zoning Regulation of Satellite Earth Stations, and In re Implementation of Section 207 of the Telecommunications Act of 1996, Restrictions on Over-the-Air Reception Devices: Television Broadcast Service and Multichannel Multipoint Distribution Service, IB Docket No. 95-59, CS Docket No. 96-83 (consolidated), 11 FCC Rcd 19276 (1996)

September 25, 1998 –fcc98-214

In this Order on Reconsideration, FCC grants in part and denies in part petitions for reconsideration of the Commission's implementation of Section 207 of the Telecommunications Act of 1996 ("1996 Act") in its Report and Order, Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking ("Report and Order" and "Further Notice") released on August 6, 1996.  Among other things, the Report and Order adopted a set of rules, 47 C.F.R. § 1.4000 (the "Section 207 rules"), that generally prohibit both governmental and nongovernmental restrictions that impair the installation, maintenance or use of over-the-air reception devices covered by Section 207 ("Section 207 devices"), unless the restriction is necessary for safety or historic preservation reasons and is no more burdensome than necessary to achieve those objectives.

November 20, 1998 –fcc98273

This Second Report and Order resolves the issues regarding Section 207 of the Telecommunications Act of 1996 ("1996 Act") on which the Commission sought further comment in its Report and Order, Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking ("Report and Order" and "Further Notice") Based on our review of the comments filed in response to the Further Notice, we adopt in this Second Report and Order an amendment to Section 1.4000 of our rules, 47 C.F.R. § 1.4000 ("Section 207 rules"), that prohibits restrictions on over-the-air reception devices covered by Section 207 ("Section 207 reception devices") on rental property subject to the other terms and conditions of our Section 207 rules.  This amendment to our rules serves two federal objectives of promoting competition among multichannel video providers and of providing viewers with access to multiple choices for video programming.  The new amendment strikes a balance between the interests of tenants, who desire access to more video programming services, and the interests of landlords, who seek to control access to and use of their property.  This Second Report and Order does not amend the rules to cover common property and restricted access property, as defined below, because we conclude Section 207 does not authorize us to do so.

Comments ():