By: Christopher R. Moore, Esq.
What is the OTARD Rule?
In 1996, acting under regulatory authority delegated by Congress in the Telecommunications Act, the Federal Communications Commission (FCC) issued its rule on Over-the-Air Reception Devices Rule, 47 C.F.R. §1.4000 (the “OTARD Rule”).
The OTARD Rule protects consumer access to video programming by prohibiting restrictions on the installation, maintenance, or use of certain reception devices.
Under the rule, condominium, homeowners’ associations, and landlords cannot unreasonably restrict the use of antennas designed to receive wireless cable or local television broadcasts or satellite dishes not exceeding one meter in diameter.
What Type of Antennas Are Covered Under The OTARD Rule?
Under the OTARD Rule 47 CFR § 1.4000(a)(1), the following satellite antennas are covered:
Direct broadcast satellite antennas that are one meter or less in diameter or any size in Alaska;
Antennas that are one meter or less in diameter or diagonal measurement and are designed to receive or transmit video programming services through multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services; and
Antennas designed to receive television broadcast signals.
Antennas used to receive fixed wireless or broadband Internet signals.
Furthermore, under the OTARD Rule, the term “fixed wireless signals” means “any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location. Fixed wireless signals do not include, among other things, AM radio, FM radio, amateur (‘‘HAM’’) radio, CB radio, and Digital Audio Radio Service (DARS) signals.“ See 47 C.F.R. § 1.4000(a)(2).
How Are Property Owners Protected?
Property owners and renters are protected by OTARD to the extent they have access to an area of “exclusive use” where the antenna or dish can be installed. The rule does not allow installation of antennas in commons areas. So, for instance, OTARD does not give a condominium owner the right to install a satellite dish on the roof of the building (assuming the roof is a common element). OTARD also does not protect antennas which extend outside of the consumer’s exclusive-use area.
What Types of HOA Restrictions Are Permitted?
Homeowners associations can enforce reasonable restrictions relating to satellite dishes and TV antennas that do not impair (or unreasonably increase the expense of) installation, maintenance, or use of the devices. A rule that designates specific areas where antennas and dishes may be placed is enforceable if an acceptable signal is available in the area and the restriction does not unreasonably increase the owner’s costs.
Restrictions expressly intended for safety or for historic preservation are enforceable under OTARD under certain circumstances. Safety-related restrictions must be no more burdensome on the owner than what is necessary for the safety objective. The historic preservation exemption only applies if the property is included within the National Register of Historic Places, or eligible for inclusion. If a restriction is challenged, the HOA has the burden of showing that the restriction does not violate the rule.
Disputing A Homeowners’ Association Restriction
Under the OTARD Rule § 1.4000(e), parties may submit a petition to the Federal Communications Commission or a court of competent jurisdiction to determine whether a particular restriction is permissible or prohibited under the OTARD Rule. However, parties are encouraged to first attempt to resolve disputes prior to filing a petition with the FCC.
Related FCC Opinions and Rulings
In re Daniel and Corey Roberts, Petition for Declaratory Ruling (May 24, 2001). The Commission held that, while permissible, the association’s antenna screening requirement creates unreasonable delays and likely deters potential antenna users. Thus, the association’s restriction contravenes the Rule and is prohibited and unenforceable under 47 C.F.R. § 1.4000.
In re Victor Frankfurt, Memorandum Opinion and Order (August 27, 2003). The Community Associations Institute (CAI) filed an Application or Review of the Cable Services Bureau’s Order (In the Matter of Victor Frankfurt, 16 FCC Rcd 2875 (CSB 2001)), which found that the association’s prior approval requirement did not fall within the safety exception and the 30 day waiting period was unnecessarily burdensome. The Commission denied CAI’s application and upheld the Bureau’s decision.
In re Shadow Wood Condominium Association, Memorandum Opinion and Order (Jan. 23, 2006). The association filed a Petition for Waiver seeking a waiver of Section 1.4000 of the OTARD Rule. The Commission found that the association is not entitled to a waiver of the Rule and also concluded that the placement restriction may be implemented in a way that is consistent with the Rule.
In re Brent Beumel, Jr., Petition for Declaratory Ruling (February 23, 2016). The Commission found that the Florida condominium association’s antenna restrictions are prohibited under the OTARD Rule because the condominium unit and patio are subject to the exclusive use or control of the co-owner.
