Can HOAs Restrict The Use of Antennas or Satellite Dishes?
By: Christopher R. Moore, Esq.
In 1996, acting under regulatory authority delegated by Congress in the Telecommunications Act, the FCC issued its rule on Over-the-Air Reception Devices (“OTARD”) Rule, 47 C.F.R. §1.4000. OTARD protects consumer access to video programming by prohibiting restrictions on the installation, maintenance, or use of certain reception devices. Under the rule, HOA’s, condo 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.
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 condo 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.
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.