Don’t Clear The Dishes? Federal Rule Prohibits Many Satellite Dish And Antenna Restrictions

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Don’t Clear The Dishes? Federal Rule Prohibits Many Satellite Dish And Antenna Restrictions

Satellite dishes and exterior antennas are sometimes considered an eyesore. Accordingly, many community associations would like to regulate—or even prohibit—them. Indeed, some associations already have language in their governing documents that forbids or places restrictions on installation of such devices. But federal law— specifically, the Over-the-Air Reception Devices (“OTARD”) rule (47 C. F.R. Section 1.4000), adopted by the Federal Communications Commission —disallows associations from adopting or enforcing most restrictions that impair the installation, maintenance or use of antennas used to receive video programming.

Over-the-Air Reception Devices (OTARD) Rule

The rule applies to only certain types of devices: TV antennas, video antennas including direct-to-home satellite dishes that are less than one meter in diameter, and wireless cable antennas. OTARD does not permit most 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. Exceptions include restrictions based on legitimate safety concerns, and restrictions necessary for historic preservation.

Devices covered by the rule may be mounted on “masts” to reach the height needed to receive or transmit an acceptable quality signal. Masts higher than 12 feet above the roofline may be subject to local permitting requirements for safety purposes.

Who does the OTARD Rule Apply To?

OTARD applies to owners and other occupants—including tenants— who wish to install or maintain covered devices on an exclusive-use area. For members of a homeowners’ association, this may include the entire lot. With respect to a condominium, this may include a balcony, deck or patio allocated to the unit. The rule does not apply to association common areas, which may include the roof or exterior wall of a condominium. When a central or common antenna is available, an association may place restrictions on the installation of individual antennas or dishes.

What Types of Restrictions are Prohibited by OTARD?

Types of restrictions prohibited by OTARD include bans on all antennas and dishes in exclusive-use areas. Association provisions that require prior approval are also probably not permissible, since they may create unreasonable delay. Requiring an occupant to incur additional costs associated with installation, such as mandating expensive landscaping screening for small devices, may not be allowed. Things to consider in determining the reasonableness of any costs imposed include: (1) the cost of the equipment and services, and (2) whether there are similar requirements for comparable items, such as air conditioning units or garbage containers.

Some limited restrictions may be permissible under the rule. The FCC has indicated that a simple notification process (probably postinstallation) could comply with OTARD, so long as the process does not delay or increase installation costs. And an association may potentially mandate installation in an unobtrusive location such as the side or rear yard. Other likely permissible restrictions include those requiring:

  • A contractor installing an OTARD device or mast to have insurance to pay for any personal injuries or property damages.
  • Some limited screening.
  • The device to be neutral in color or painted to match adjacent improvements (provided that painting does not damage the device or void manufacturer warranties).
  • Locating devices away from power lines.
  • Signing of an agreement indemnifying and holding the association and its members harmless from all claims, demands or liability arising out of or encountered in connection with the device or mast.

Associations who would like to more heavily regulate devices may consider specifically reserving the right to pay for things like more extensive landscaping screening or installation of a device in a less noticeable location. This option would decrease the likelihood that a restriction imposes an unreasonable cost.

The OTARD Rule Supersedes Association Governing Documents

The federal rule supersedes any conflicting governing document provisions. To the extent that there is a conflict with OTARD, an association should decline to enforce such provisions until they can be amended or removed, which will require an owner vote if the provisions appear in the declaration. If prompt removal or amendment will be difficult or expensive, a board may choose to approve a resolution explaining why the board will not be enforcing existing provisions (or at least will not be enforcing the provisions to the extent that they violate OTARD). This may help prevent confusion down the road.

One somewhat popular option is for the board to adopt an OTARD-compliant policy setting forth the requirements and restrictions for installation of dishes and antennas. Such guidelines may alternatively be located in the rule and regulations. Be sure to provide owners and other occupants with copies of these guidelines so they know their responsibilities prior to installation.

By Allison Peryea & Sergey Petrov

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