In the realm of homeowner associations, an association has broad authority to regulate many things. This broad list includes satellite dishes and antennas. However, the regulation of satellite dishes and antennas is not so simple. An association cannot, on a whim, adopt a policy and enforce whatever regulations and/or procedures it comes up with. An association is bound in its potential regulation of satellite dishes and antennas to comply, not only with the association governing documents, but also with the Federal Communications Commission Over-the-Air Reception Devices Rule, effective October 14, 1996, as amended September 25, 1998, and October 12, 2000 (“OTARD”).
What OTARD Prohibits:
OTARD prohibits any restriction that impairs an owner’s, resident’s, or tenant’s ability to install, maintain, or use an antenna that is covered under OTARD. This has been interpreted by the Federal Communications Commission (and applies to video antennas including satellite dishes that are less than one meter in diameter, TV antennas, and wireless cable antennas) to prohibit restrictions that: (1) unreasonably delay or prevent installation, maintenance, or use of the dish or antenna; (2) unreasonably increase the cost of installation, maintenance or use of the dish or antenna; or (3) preclude reception of acceptable antenna signals.
OTARD should not be interpreted to prohibit legitimate safety restrictions or restrictions which attempt to preserve eligible historic or prehistoric properties. However, the association must take care to craft the restriction to be no more burdensome than necessary to accomplish the safety or preservation purpose. An overly burdensome regulation, which could have been accomplished through simpler means, could be deemed to be a violation of the rule.
To Whom does OTARD Apply:
OTARD applies to all single family, townhome, and condominium association members, residents, and tenants who intend to install antennas on property that is either owned, rented, or within said individual’s exclusive use or control (such as a limited common element balcony or patio). However, please note, this rule does not apply to association general common elements. The association has the power and authority to prohibit any and all satellite dishes or antennas from being installed on general common elements.
How to Regulate Satellite Dishes and Antennas without Getting Sued.
The best course of action is the adoption of a Satellite Dish Policy. Such a policy can: (1) guide the association in its regulation of dishes and antennas; (2) assist in keeping the aesthetics of the community in place; (3) create a more uniform placement of satellite dishes and antennas throughout the community; (4) outline guidelines for installation; and (5) provide standards to the community. For example, a policy could include, among many other things, language indicating:
– Where an antenna may be installed (i.e. solely on an owners individually-owned lot as designated on the recorded deed or map).
– Whether or not an antenna may encroach upon common element or another individually owned lot.
– Where on the residence, if not inside, the satellite dish or antenna may be located (i.e. as high as is feasible on a trim board of the residence siding, if any, or on the fascia board under the roof line).
– What to do if an acceptable signal cannot be sustained at any of the permitted installation locations (i.e. the antenna may be installed in another location on the member’s individually-owned lot that is the least visible from streets and other lots and where a good signal is sustainable).
– How and who may install satellite dishes and antennas (please note, an association cannot require professional installation of satellite dishes or antennas within a member’s lot).
– Safety precautions (i.e. installation in accordance with the manufacturer’s specifications and a requirement that all antennas must be secured so that they do not jeopardize the soundness or safety of any structure or person).
– A requirement that all installations comply with the applicable building, electrical and related codes.
– How exterior wiring or cabling may be installed and located.
Does the Association have any Liability?
With respect to liability, just because the association is limited in how it may regulate satellite dishes and antennas, liability will still lie with the member for any personal injury or damage occurring to a common element, another owner’s lot, or an exclusive use area arising from installation, maintenance, or use of a satellite dish or antenna. On the other hand, if the association does not comply with OTARD, it could be held liable for damages to the owner associated with these actions.
Installation on General Common Elements:
Finally, as stated above, an association does not have an obligation to allow the installation of antennas or satellite dishes on general common elements. However, if the association does permit such installation, we suggest the association require a maintenance and indemnification agreement with the owner prior to installation.
If you have any questions on the above please contact any of our attorneys at (303) 432-9999.