HOA Legi-Slate

Have you ever heard of the Federal Communication Commission's ("FCC") Over-the-Air Reception Devices Rule ("OTARD")?  As part of the Telecommunications Act of 1996, the United States Congress directed the FCC to adopt a rule that prohibits most restrictions by community associations and other entities that impair the installation, maintenance or use of antennas used to receive video programming.  From the beginning, OTARD has applied to video antennas including satellite dishes that are one meter or less in diameter, TV antennas and wireless cable antennas.  In 2001, an FCC expansion of OTARD became effective to include customer-end antennas that receive and transmit fixed wireless signals.

OTARD is lengthy and can be complicated.  However, OTARD can essentially be boiled down to prohibiting most restrictions by community associations that (1) unreasonably delay or prevent installation, maintenance or use of antennas covered by OTARD; (2) unreasonably increase the cost of installation, maintenance or use of covered antennas; or (3) preclude reception of an acceptable quality signal.

The FCC has been vigorous in defending the rights of residents in community associations - including renters - to install satellite dishes that are less than one meter in diameter on their own or exclusive use property. Here are a few questions that commonly arise in community associations relative to covenants, rules or architectural guidelines relating to satellite dishes and antennas.

1.  Can my community association require residents to submit an application to install a satellite dish and obtain approval prior to installation?  Generally the requirement that residents must submit an application and receive prior approval to install a satellite dish, that is 1 meter or less in diameter, violates OTARD because such procedural requirements have been interpreted to unreasonably delay the installation, maintenance or use of an antenna.  Prior approval may only be permissible if it serves a legitimate safety or historic preservation concern.  The safety exception is difficult to justify under OTARD and community associations have the burden of establishing that a safety restriction is no more burdensome than necessary to accomplish the safety purpose.  The FCC has described examples of valid safety restrictions to include "fire codes 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; and installation requirements that describe the proper method to secure an antenna."  Interestingly, with the exception of antennas that transmit and receive signals, associations are not permitted to require residents to have satellite dishes installed by professionals. 

2.  Can my community association require residents to place satellite dishes/antennas in specified locations?  Associations are permitted to create preferred placement locations for satellite dishes and other types of antennas covered by OTARD.  Residents are required to comply with the preferred placement locations so long as they do not impose unreasonable delay or expense relative to installation or prevent reception of an acceptable quality signal. 

3.  Can my community association require residents to camouflage satellite dishes or other antennas covered by OTARD?  In an effort to camouflage satellite dishes and antennas, community associations may not require residents to install a costly landscaping screen or build other types of screens.  However, the FCC has given the opinion that "requiring residents to paint an antenna so that it blends into the background against which it is mounted would likely be acceptable, provided it will not interfere with reception or impose unreasonable costs."

4.  Can my community association install a central antenna and then stop residents from installing satellite dishes and other antennas covered by OTARD?  The FCC has determined that community associations with a central antenna may restrict the installation of other antennas by residents if:  "(1) the person receives the particular video programming or fixed wireless service that the person desires and could receive with an individual antenna covered under the rule (e.g., the person would be entitled to receive service from a specific provider, not simply a provider selected by the association); (2) the signal quality of transmission to and from the person's home using the central antenna is as good as, or better than, the quality the person could receive or transmit with an individual antenna covered by the rule; (3) the costs associated with the use of the central antenna instead of an individual antenna does not unreasonably delay the viewer's ability to receive video programming or fixed wireless services."  The bottom line is that in this day and age, it's extremely difficult for a central antenna to compete with the wide range of services and programming available to consumers from the vast array of other sources. However, if an association includes the costs associated with a central antenna in assessments – each resident is required to pay the full amount of the assessments regardless of whether they have installed a satellite dish or other antenna permitted under OTARD.

To learn more about OTARD, the HindmanSanchez article entitled "FCC OTARD Rule Concerning Satellite Dishes and Antennas: Questions and Answers" and the FCC's Over-the-Air Reception Devices Rule Information Sheet detail what rules associations can and cannot place on the installation of antennas.