Most, if not all, of us have become very familiar and comfortable with the idea that small satellite television dish antennas must generally be permitted. What many of us don’t realize is that the same protection is now afforded to similar types of antennas that supply wireless internet and telephone service.
In 1996, Congress became convinced that cable television providers had an unfair advantage because they were generally not required to obtain approvals prior to the installation of their equipment. On the other hand, the over-the-air television service providers (e.g. satellite television service providers) were routinely required to obtain approvals for their equipment. This many times resulted in long delays so that architectural review bodies could dictate the location, size, color and other features of the equipment. In fact, in many instances, satellite dish antennas were completely prohibited.
As a result of this inequity, Congress adopted Section 207 of the Telecommunications Act of 1996 to create an 'even playing field' between the cable television providers and the over-the-air television service providers.
Congress directed the Federal Communications Commission 'FCC' to adopt Rules and Regulations to fully implement the above described policy, which resulted in the FCC adopting the Over-The-Air Reception Devices Rule ('OTARD Rule'). This is the document that dictates what community associations can and cannot restrict as it relates to these protected over- the-air antennas.
PROTECTIONS PRIOR TO MAY, 2001:
Prior to May 25, 2001, the OTARD Rule provided generally as follows:
1. Protected Antennas:
The following antennas (and their masts) were protected:
(a) 'Dish' antennas that are one meter (39.37') or less in diameter and are designed to receive direct broadcast satellite service, including direct-to-home satellite service.
(b) Antennas that are one meter or less in diameter or diagonal measurement and are designed to receive signals other than via satellite (e.g. line of sight devices); and
(c) 1950's style antennas that are designed to receive local television broadcast signals.
2. Protected Persons:
The OTARD Rule permits any individual to install one of the above described antenna, so long as it was installed on property that they owned or rented and that was within their exclusive use or control, including condominium owners and cooperative owners, and tenants who had an area where they had exclusive use, such as a balcony or patio, in which to install the antenna.
3. Restrictions vs. Prohibitions:
While the OTARD Rule kept community associations from prohibiting the protected antennas, in theory, the Rule permitted community associations to adopt restrictions on those antennas so long as those restrictions did not 'impair' a protected person’s ability to install, maintain, or use their antenna. The term 'impair' was defined to mean any restriction that (a) unreasonably delayed or prevented use of, (b) unreasonably increased the cost of; or (c) precluded a person from receiving or transmitting an acceptable quality signal from an antenna covered under the rule.
While the above described right to regulate the protected antennas sounded good, the FCC has routinely found that all such restrictions 'impaired' a person’s ability to install, maintain, or use the protected antennas.
WIRELESS INTERNET AND TELEPHONE SERVICE ANTENNAS:
As of May 25, 2001, the OTARD Rule was amended to apply all of the above protections to antennas that were designed to receive or transmit fixed wireless signals. The term 'fixed wireless signals' has been defined by the FCC as follows:
'Fixed wireless signals' are any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location. Examples include wireless signals used to provide telephone service or high-speed Internet access to a fixed location. This definition does not include, among other things, AM/FM radio, amateur ('HAM') radio (but see 47 C.F.R. §97.15), Citizens Band ('CB') radio, and Digital Audio Radio Services ('DARS') signals.
The FCC went on, however, to provide that such antennas must be 'customer-end antennas'. This means that such antennas will not be protected if they are used as a Hub or relay point for multiple users.
The above is only a summary of the law as it relates to protected antennas. If you are interested in a more detailed explanation of your rights and obligations, you are encouraged to visit the FCC website at www.fcc.gov/mab/facts/otard.html.
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne, Tampa and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition prepared by Robert L. Taylor, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.
©2005 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached at 407-660-1040.
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