PREEMPTION! The FCC’s Adoption of the OTARD Rules and Their Application to Condominium and Homeowners Associations

    In Section 207 of the Telecommunications Act of 1996 (the “Act”), Congress directed the Federal Communications Commission (“FCC”) to adopt rules concerning Over-the-Air Reception Devices (“OTARD”) in order to provide limitations and guidance on governmental and non-governmental restrictions on viewers’ ability to receive certain over the air telecommunications.  In October 1996 the FCC adopted 47 CFR § 1.4000 (the “OTARD Rules”) to implement this Congressional directive.

The OTARD Rules are intended to advance one of the primary objectives of the Act: “to make available, so far as possible, to all the people of the United States . . . a rapid, efficient, nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges. . . .”  47 USC § 151.  The OTARD Rules attempt to achieve this objective by preempting certain local restrictions in an effort to protect an occupant’s right to install, maintain, or use an antenna to receive:

• video programming from direct broadcast satellites (“DBS”);
• broadband radio services (formerly referred to as multichannel multipoint distribution services or “MMDS”); and
• television broadcast stations (“TVBS”).

The OTARD Rules are broad in application and “apply to any state or local law or regulation . . . or any private covenant, contract provision, lease provision, homeowner’s association rule or similar restriction . . . .”  47 CFR § 1.4000(a)(1).  Accordingly, any governmental or private entity, including a condominium association or homeowners association, that seeks to regulate or restrict in any manner the exterior appearance of a structure that could potentially seek to utilize a device subject to the OTARD Rules should be familiar with their application.

The OTARD Rules

The OTARD Rules only apply to certain antennas and their masts.  Antennas covered by the OTARD Rules are defined as follows:

• An antenna:
  1. “[u]sed to receive direct broadcast satellite service [(DBS)]. . . or to receive or transmit fixed wireless signals via satellite,” and
  2. that is either “[o]ne meter or less in diameter or is located in Alaska;”
• An antenna:
  1. “[u]sed to receive video programming services via multipoint distribution services . . . or to receive or transmit fixed wireless signals other than via satellite, and
  2. that is “one meter or less in diameter or diagonal measurement;” or
• An antenna that is used to receive television broadcast signals (TVBS).

47 CFR § 1.4000(a)(1)(i)-(iii).  The term “fixed wireless signal” means “any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location[,]” 47 CFR § 1.4000(a)(2), and does not include, inter alia, AM radio, FM radio, amateur (“HAM”) radio, Citizen’s Band (“CB”) radio, and Digital Audio Radio Service (“DARS”) signals.  Id.

In addition to the above three types of antenna, the OTARD Rules also apply to the “mast supporting” these three types of antenna.  These three types of antenna and the associated mast are collectively referred to herein as the “Covered Antennas.”

            The OTARD Rules prohibit any governmental or non-governmental restriction of a Covered Antenna:

on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property that impairs the installation, maintenance, or use of [the Covered Antenna].

47 CFR § 1.4000(a)(1) (emphasis added).  The OTARD Rules then define what it means to “impair” the “installation, maintenance, or use” of the Covered Antenna:

[A] law, regulation, or restriction impairs installation, maintenance, or use of an antenna if it:

(i)    Unreasonably delays or prevents installation, maintenance, or use;

(ii)   Unreasonably increases the costs of installation, maintenance, or use; or

(iii)  Precludes reception or transmission of an acceptable quality signal.

47 CFR § 1.4000(a)(3).  “Any fee or cost imposed on a user by a rule, law, regulation or restriction must be reasonable in light of the cost of the equipment or services and the rule, law, regulation or restriction’s treatment of comparable devices.”  47 CFR § 1.4000(a)(4).

OTARD Rules Exceptions and Limitations

            The OTARD Rules contain several exceptions and limitations on its application.

Under the “Safety Objective Exception,” any restriction otherwise prohibited is permitted if it is “necessary to accomplish a clearly defined, legitimate safety objective[.]”  47 CFR § 1.4000(b)(1).  In order to apply, the Safety Objective Exception requires (i) that the objective either be “stated in the text, preamble, or legislative history of the restriction or described as applying to that restriction in a document that is readily available to antenna users,” and (ii) that the restriction would be “applied to the extent practicable in a non-discriminatory manner” to other comparable appurtenances, devices, and fixtures which “pose a similar or greater safety risk as these antennas and to which local regulation would normally apply[.]”

Under the “Historic Preservation Exception,” any restriction otherwise prohibited is permitted if it is “necessary to preserve a prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion on, the National Register of Historic Places[.]”  47 CFR § 1.4000(b)(2).  In addition to the requirement that the property be included in, or eligible for inclusion on, the National Register of Historic Places, the restriction must impose “no greater restrictions on [Covered Antennas] than are imposed on the installation, maintenance, or use” of comparable “modern appurtenances, devices, or fixtures[.]”

Both the Safety Objective Exception and the Historic Preservation Exception further require that the restriction be “no more burdensome to affected antenna users than is necessary” to achieve both Exceptions’ stated objectives.  47 CFR § 1.4000(b)(3).

In addition, the OTARD Rules only apply to antenna used to transmit fixed wireless signals if a label has been affixed to the antenna that: (1) provides “adequate notice regarding potential radiofrequency safety hazards . . .;” and (2) references applicable FCC-adopted limits for radiofrequency exposure specified in 47 CFR § 1.1310 pertaining to radiofrequency radiation exposure limits.  If no suchhas been affixed to the antenna, then such antenna is not a Covered Antenna.

Further, under certain circumstances local governments or associations may apply to the FCC for a waiver of the OTARD Rules pursuant to 47 CFR § 1.3 pertaining to the Suspension, amendment, or waiver of administrative rules.  Waivers may be granted upon a showing of “local concerns of a highly specialized or unusual nature . . . .”  47 CFR § 1.4000(d).

FCC Interpretation of the OTARD Rules

            Where a question exists as to the enforceability of a restriction, parties may petition the FCC, or a court of competent jurisdiction, for a declaratory ruling as to “whether a particular restriction is permissible or prohibited . . . .”  47 CFR § 1.4000(e).  The FCC has issued several Orders and Declaratory Rulings interpreting the OTARD Rules, some of which relate directly to community associations.

In 1998 the FCC clarified that the OTARD Rules do not apply to restrictions on installations in common areas or on common elements.  Second Report and Order, 13 FCC Rcd 23874 (1998) (“Second Report and Order”).  As it pertains to community associations, this has been one of the most hotly-contested areas of dispute.  Recently, the FCC considered a petition filed by the co-owner of a condominium unit who had installed an antenna on a concrete slab outside the sliding glass door of his living/dining area.  In re: Beumel, CSR 8487-0 (Feb. 23, 2016).  The condominium association had asserted that the co-owner had improperly modified common elements without approval of the association and had, therefore, violated the association’s covenants and restrictions prohibiting such modifications.  The association then sought to prohibit the antenna.  The FCC considered the petition and agreed with the co-owner, determining that the antenna was a Covered Antenna and that, therefore, the association could not prohibit the installation of the antenna.  In making its ruling the FCC considered the definition of a “unit” and a “common element” under the controlling condominium documents and determined that the patio constituted a unit subject to the exclusive use of the co-owner.  The FCC, therefore, rejected the association’s argument that the patio constituted a common element and found the OTARD Rules applicable.

            The FCC had reached a similar conclusion in its 2011 decision In re: Walker, CSR 8477-0 (July 27, 2011).  In that case, the FCC’s conclusion can almost be determined solely upon reading the FCC’s determination of the facts:

Earlier this year, the Petitioners installed a satellite dish antenna on the balcony of their condominium, completely inside the area within their exclusive use or control and part of the unit that they rented.   After installation, a representative of the Association contacted the Petitioners and told them to remove the antenna.   The next week, the Petitioners spoke with a representative of the Association’s management company who told them, among other things, that the Association was not governed by Commission rules and that the Petitioners had to remove their antenna.   Finally, according to the Petition and not contradicted by the Association, someone entered the Petitioners condominium and took the antenna from their balcony, leaving the door to the unit open and frightening the Petitioners’ ten year old daughter when she returned home later from school.

            Not surprisingly, the FCC ruled against the association and determined that the association’s restrictions and prohibition of the antenna was impermissible.  Setting aside the lawfulness of the self-help exercised by the association, under Virginia law, the “porches, balconies, patios, etc. designed to serve a single unit are limited common elements, reserved for the exclusive use of the owners of the unit in question.”  Virginia Condominium Act, Va. Code §§ 55-79.41; 55-79.41:1;55-79.50.  Therefore, and since the individual that installed the antenna held a leasehold interest in the balcony on which the antenna was installed, the OTARD Rules applied and the association could not prohibit installation of the antenna.  In its ruling, the FCC made several significant statements and findings, including the following:

• An association cannot prohibit installation in areas such as balconies or patios that are within an antenna user’s exclusive use or control.
• An association cannot restrict installation to areas where the antennas cannot be seen from the street or other units without (at a minimum) allowing deviation in situations where these “hidden” installations cannot accommodate reception of an acceptable quality signal.
• Although an association can decide to allow antenna installation in common areas, (which are not covered by the OTARD Rules), it cannot then prohibit installation in an area that is covered by the OTARD Rules and where the antenna will receive an acceptable signal.
• An association cannot limit the number of antennas that can be installed since the OTARD Rules protect all antennas necessary to obtain the desired service.
• Because all satellite antennas one meter or less are covered equally by the OTARD Rules, restrictions cannot differentiate and impose greater regulation on antennas over 18 inches but under 40 inches.

Both In re: Beumel and In re: Walker constitute instances where the FCC sided with a co-owner seeking to install an antenna.  Since the OTARD Rules place the burden of demonstrating that a restriction “does not impair the installation, maintenance, or use” of Covered Antenna on the party seeking to enforce the restriction, community associations and other parties seeking to enforce such restrictions should be cognizant of these decisions and the policy directive that would have to be overcome for such a restriction to be deemed enforceable.

Summary

            The OTARD Rules constitute the implementation of a Congressional policy directive intended to make available “to all the people of the United States . . . a rapid, efficient, nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges. . . .”  In many instances the OTARD Rules will conflict with and preempt local regulation and private covenants and restrictions which would otherwise vest decision-making authority over the installation of such antennas in a party other than the one attempting to install the antenna.  Condominium and homeowner associations are particularly subject to such conflict and preemption issues.  Accordingly, associations should ensure that their bylaws and restrictions comply with the OTARD Rules and amend any bylaws or restrictions that do not comply.  If an association seeks to regulate and retain approval authority over the exterior appearance of an owner’s unit including approval of the installation of Covered Antennas, then such association should be aware of and familiar with the potential application of the OTARD Rules and the consequences of unilateral action by the association.

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