Although the FCC adopted its Over-the-Air-Reception Device Rule (“OTARD Rule”) in 1996, there still seems to be confusion about how it affects homeowner associations. In short, the OTARD Rule prohibits restrictions that impair the installation, maintenance or use of satellite dishes that are less than one meter in diameter, TV antennas of any size, wireless cable antennas and customer-end antennas that receive and transmit fixed wireless signals. We will refer to these collectively as an antenna. Installation, maintenance or use is impaired if a restriction:
- Unreasonably delays or prevents installation, maintenance or use;
- Unreasonably increases the cost of installation, maintenance or use; or
- Precludes reception of an acceptable quality signal.
What does this mean for condominium, townhome and detached single family communities? Under the OTARD Rule, an owner or a tenant has the right to install an antenna on property that he owns or over which he has exclusive use or control. In a condominium community, this is inside the unit itself and any attached limited common elements, such as a patio or balcony. In a townhome or detached single family community, this is the entire lot. Most townhome communities are responsible for exterior maintenance of the townhouse. However, while this may affect the owner’s exclusive control over the exterior, it does not affect the ownership or exclusive right to use of it. As a result, an antenna may be installed on the exterior of a townhome.
Associations cannot require an approval process (even expedited) for the antennas, as this is considered to be an unreasonable delay, as long as the antenna is installed on the property owned or under the exclusive use or control of the owner. The OTARD Rule does not give an owner or tenant the right to install an antenna on general common elements in a condominium community (i.e. the roof) or the common area in a townhome or detached single family community. If an owner or tenant is unable to obtain a signal in a location in which he has a right to install the antenna and wishes to install the antenna on general common element or common area, the association may still require approval. There is no automatic right to install an antenna in these locations.
Associations may, in advance, adopt location preferences that do not impair the installation, maintenance or use of the antenna. This will assist associations in maintaining a uniform appearance rather than having antennas installed in all kinds of locations. However, if installation in a preferred location will impair the installation, maintenance or use of the antenna, the owner or tenant has the right to install it in another location he owns or has exclusive use or control. As a result, it is important to adopt rules and regulations setting forth a list of location preferences. For instance, a condominium community may prefer installation as follows:
- inside the unit; or
- on the balcony below the railing; or
- on the balcony on a mast or tripod as close to the level of the railing as possible; or
- on the railing.
A townhome community may prefer installation:
- Inside the townhome; or
- on the back patio; or
- on the back of the townhouse as close to the eave as possible; or
- on the chimney; or
- on the side of the townhome as close to eave as possible; or
- on the roof.
Detached single family communities may have similar preferences as a townhome community, although they generally do not have the same maintenance concerns with installing on siding as a townhome community does.
The FCC has made it very clear that any rules and regulations must be adopted in writing before the antenna is installed. Therefore, the association could not enforce its rules against any antennas that were installed before the association adopted its location preferences. Those rules would apply to future installations. However, if the rules address future maintenance of the antenna or the siding on which the antenna is located, those should apply even to previously installed antennas. The FCC has also allowed associations to adopt and enforce restrictions needed for legitimate safety concerns or historic preservation, even if the restrictions impair the installation, maintenance or use of the antenna. However, these also need to be in writing and distributed to owners in advance.
Although associations cannot require an owner or tenant to submit an approval request form, it can require a notification form. This allows the association to verify that the antenna will be or has been installed in accordance with the association’s written rules and regulations. This should not be confused with an approval process or a right to review the installation details before the antenna is installed, as both would be considered an unreasonable delay under the OTARD Rule.
An association’s ability to enforce restrictions are limited, but not completely pre-empted. It is important to develop a written policy before antennas become an issue in the community. Drafting rules and regulations that comply with the FCC’s requirements is complicated and should be done by the association’s attorney.