Section 207 of the Telecommunications Act of 1996 required the Federal Communications Commission to adopt regulations that would permit individuals to place antennas for the reception of video programing services despite governmental or community association restrictions. The FCC referred to these devices as Over The Air Reception Devices. The FCC adopted OTARD regulations which prohibit many restrictions about antennas and similar devices.
For instance, restrictions requiring “prior approval” of satellite dishes and broadcast antennas, commonly found in association governing documents, are now preempted for antennas covered by the rule. Devices that only transmit signals remain subject to private restrictions. Examples of antennas covered by the rule include those that provided direct broadcast satellite services (e.g. Direct TV), multipoint distribution services (i.e. wireless cable), television broadcast signals and wireless signals used to provide telephone service or high speed internet access to a fixed location.
Homeowners and their tenants have the right to erect covered antennas on individually owned property, or property in which they have a direct or indirect ownership interest and over which they have exclusive use or control (limited common elements in condominiums). Homeowners may not install any antenna on common elements of a condominium, or common areas of a planned community association owned by the association under OTARD.
The FCC allows some flexibility for associations to regulate covered antennas so long as such rules do not impair homeowners’ rights under OTARD. A rule impairs rights if it precludes reception of an acceptable quality signal, unreasonably prevents or delays installation, maintenance or use of an antenna, or unreasonably increases the cost of installing, maintaining or using an antenna. Reasonable safety requirements may be imposed under OTARD even if it impairs rights under OTARD, but you must be very careful in crafting safety requirements. Community association rules must be carefully crafted to comply with OTARD.
I, along with attorneys Stephen Marcus, Tom Hindman, Marvin Nodiff and Karyn Kennedy drafted model rules for the Community Associations Institute along with a publication on OTARD. The out-of-print publication is being revised with an anticipated publication date of early 2007. The FCC has an Information Sheet that is for the most part accurate.
