A frequent topic that arises in all types of associations is the placement of satellite dishes and television (“TV”) antennas by owners. Many associations simply have in place a blanket requirement prohibiting owners from installing these items without the prior approval of the board. While such prior approval requirements are common, and typically enforceable, for most exterior additions and changes in associations, federal law governs what types of restrictions associations may place on satellite dishes and TV antennas.
Specifically, the federal Telecommunications Act of 1996 empowered the Federal Communications Commission (“FCC”) to adopt rules regarding what types of restrictions associations may place on satellite dishes and TV antennas, which prompted the FCC to adopt the Over-the-Air Reception Devices (“OTARD”) rule, which has been in place since 1996 and amended several times since then. This rule applies for all TV antennas designed to receive local channels and all satellite dishes that are one (1) meter in diameter or less.
In general, the OTARD rule prohibits restrictions adopted by associations that: 1) unreasonably delay or prevent the installation, maintenance or use of a satellite dish or TV antenna; 2) unreasonably increases the cost of installation, maintenance or use of a satellite dish or TV antenna; or 3) preclude reception by an owner of an acceptable quality signal from a satellite dish or TV antenna.
The OTARD rule does not necessarily apply to all areas governed by an association, however. Specifically, the OTARD rule does not apply to common areas owned by an association or to common elements owned collectively by owners within a condominium association, except in areas where an owner has the exclusive use and control of the area. Therefore, in a townhome or homeowner association community, an association’s rules related to satellite dishes and TV antennas on the common area would not be restricted by the OTARD rule. In a condominium association, the association’s rules related to satellite dishes and TV antennas on the common elements would not be restricted by the OTARD rule. But the OTARD rule restrictions would apply for any areas an owner owns (such as the owner’s home or townhome in a homeowner or townhome community) or that the owner has exclusive use and control over (such as a balcony or patio in many condominium associations). Restrictions related to these portions of the property must not conflict with the OTARD rule. Any association with a question about whether an area is, or is not, subject to the OTARD rule should consult with the association’s attorney as this will likely be dictated by the association’s particular governing documents.
With respect to an association that wishes to require prior approval by the board before an owner installs a satellite dish or TV antenna, the FCC has ruled that such prior approval requirements are generally not enforceable unless the prior approval is required for a legitimate, written, safety or historical preservation purpose. If an association establishes a prior approval requirement and asserts this is for a safety and/or historical preservation purpose, if challenged the burden will be on the association to prove that its requirement does not violate the OTARD rule.
Now almost twenty (20) years old, the OTARD rule has been the subject of FCC rulings. Fortunately for association boards and property managers, the FCC has established a summary guide related to this rule with some frequently asked questions that are quite informative. These can be found at https://www.fcc.gov/guides/over-air-reception-devices-rule.
While the FCC guide and frequently asked questions can offer a good summary and outline on some topics related to association restrictions on satellite dishes and TV antennas, an association would be prudent to consult with its attorney regarding how to draft restrictions within a declaration and/or rules and regulations governing satellite dishes and TV antennas in the association’s community. If your association is considering adopting restrictions on satellite dishes and antennas, or already has these in place and would like them reviewed for any conflicts with the OTARD rule, please feel free to contact our office and one of our attorneys would be happy to assist you.
This article is being provided for informational purposes only. This article does not constitute legal advice on the part of Costello Sury & Rooney. or any of its attorneys. No association, board member or any other individual or entity should rely on this article as a basis for any action or actions. If you would like legal advice regarding any of the topics discussed in this article and/or recommended procedures for your association going forward, please contact our office.