OTARD? What’s an “OTARD”?? Sounds like a fighting word—but actually it isn’t. OTARD stands for Over-the-Air-Reception Devices rule adopted by the FCC in 1996. The overall intent of OTARD is to protect Americans’ rights to receive information from over the air reception devices. OTARD essentially prohibits restrictions that impair the installation, maintenance or use of satellite dishes less than one meter in diameter, TV antennas, wireless cable antennas, and customer-end antennas that receive and transmit fixed wireless signals.
What constitutes an impairment on the installation, maintenance, or use of such devices? According to the FCC it is anything that 1) unreasonably delays or prevents installation, maintenance or use, 2) unreasonably increases the cost of installation, maintenance or use; or 3) anything that precludes reception of an acceptable quality signal.
How does this regulation impact common interest communities? Most often we see OTARD come into play when owners install satellite dishes and the boards believe such installation was in violation of the covenants or rules. Pursuant to OTARD, an owner/tenant has the right to install any of the above-mentioned devices on property he/she owns or has exclusive use or control over. This includes condominium units, townhomes, single family homes, and all associated limited common elements.
In simple terms, this means associations cannot prohibit owners from installing satellite dishes (and other protected devices) on the following portions:
- Townhome exteriors/interiors, including roofs and siding (even if the association maintains these components)
- Condominium unit interiors
- Limited common element balconies, patios, or decks
However, an association may prohibit installation on the general common elements, including but not limited to:
- Condominium roofs and siding
- Any protrusion into the airspace outside the vertical plane of a limited common element
- Greenbelts, parks, clubhouses, or any other common element facility within the community
Although associations may adopt rules and policies governing installation of devices, they must be careful not to violate OTARD by increasing the cost, delaying the process, or hampering signals through its rules. Some common violations of OTARD include the below:
- Requiring approval of installation—even if expedited—is considered an unreasonable delay on installation and prohibited by the FCC. Keep in mind however, associations may require approval for unprotected areas such as condominium exteriors and general common elements. Additionally, associations may require submittal of a notification of installation form within a reasonable time after installation, which will allow the association to have a record of the installation in case any property damage was incurred.
- Requiring a specific location for installation (on townhomes or limited common elements); if the required location prohibits an owner from receiving an acceptable signal, such requirement will be in violation of OTARD. Nevertheless, associations may set forth a list of location preferences in a policy.
- Requiring installation be performed by a licensed contractor is also a no-no as it increases the cost of installation.
Keep in mind if associations incur any damages as result of installation, use, or maintenance of such devices, the pertinent owners may still be financially responsible for such damages. However, prior to charging owners for anything associated with their devices, make sure you check with the association’s attorney.
For additional information or questions pertaining to OTARD, please contact one of our attorneys at 303.432.9999.