Section 2.07 of the Act directs the Federal Communications Commission ("FCC") to "promulgate regulations to prohibit restrictions that impair a viewer's ability to receive video programming services through devices designed for over-the-air reception of ... direct broadcast satellite services ...." Pursuant to this directive, the FCC adopted the Over-the-Air Reception Devices Rule (the "OTARD Rule") which is set forth in Section 1.4000 of the FCC rules. 47 C.F.R. §1.4000. The OTARD Rule in its present form was adopted by the FCC primarily through four opinions and reports released on August 6, 1996 (the "Report and Order"), September 23, 1998 (the "Order on Reconsideration"), November 20, 1998 ("Second Report and Order"), and October 25, 2000 (the "Competitive Networks Report and Order")¹. The initial OTARD Rule was adopted, discussed and clarified in the Report and Order and Order on Reconsideration. The rule was expanded to cover tenants in the Second Report and Order. The rule was additionally expanded in the Competitive Networks Report and Order to cover fixed wireless signals. The FCC continues to "clarify" the rule primarily through its decisions in particular cases on petitions for declaratory ruling.

The FCC has published a May 2001 Fact Sheet which briefly explains the OTARD Rule, provides answers to frequently asked questions, and contains other general information regarding the OTARD Rule. The Fact Sheet also contains links to obtain copies of the rule, and various FCC orders and rulings regarding the rule. That Fact Sheet may be accessed on the Internet at http://www.fcc.gov/mb/facts/otard.html.

If the OTARD Rule applies, then it prohibits any community association restriction or rule that "impairs the installation, maintenance or use of" a covered antenna. A restriction or rule "impairs" according to the OTARD Rule if it: (1) unreasonably delays or prevents installation, maintenance, or use; (2) unreasonably increases the cost of installation, maintenance, or use; or (3) precludes reception of an acceptable quality signal. 47.C.F.R. §1.4000(a)(3).

The delay element is most commonly applied to prohibit prior approval restrictions. As to the cost element, the FCC has consistently declined to adopt any formula for determining unreasonable cost increases, although its decisions reflect that very little cost increase will be accepted. Section 1.4000(a)(4) of the OTARD Rule simply states "[a]ny fee or cost imposed on a user by rule, law 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." The "acceptable quality signal" element applies primarily to placement restrictions, including as to height, of an antenna. Its application differs as to television antenna ("TVBS") and devices designed to receive digital signs. A TVBS is generally subject to gradual impairment depending upon placement, including height. Placement requirements may not be such as to cause a TVBS signal to be "substantially degraded," but such requirements need not provide for an "optimal quality signal." On the other hand, devices designed to transmit or receive digital signals must be installed where it has an unobstructed direct view of the satellite or other device from which signals are received or to which signals are to be transmitted. These digital signal antenna generally have a limited line-of-sight range in which the antenna either works or it does not (the "cliff effect").

There are exceptions in the OTARD Rule for restrictions necessary to address valid and clearly articulated safety or historic preservation issues, provided such restrictions are as narrowly tailored as possible, impose as little burden as possible, and apply in a nondiscriminatory manner throughout the regulated area. 47 C.F.R. §1.4000(b). See discussion of safety exception at Section 6.0 hereof. The rule also permits community associations to apply for a waiver which may be granted only "upon a showing . . . of local concerns of a highly specialized or unusual nature." 47 C.F.R. §1.4000(d). The availability of a central antenna may allow a community association to restrict installation of an individual antenna. There are significant limitations, a primary limitation being that an individual antenna may be installed if needed to receive video programming or fixed wireless services not available on the central antenna system.

The OTARD Rule provides a procedure for filing of a petition for declaratory relief (or waiver) by parties affected by antenna restrictions, including a community association or homeowner. 47 C.F.R. §1.4000(d)-(h). The procedures apply generally to proceedings before the FCC. However, declaratory relief under the rule can also be sought in a state court. If a petition is filed with the FCC after a state court lawsuit is filed, the FCC will generally "request" the state court to abate its proceedings pending determination by the FCC of any OTARD Rule related issues. The FCC has indicated that virtually any occupant of property affected by an antenna restriction has the right to maintain a proceeding before the FCC, even in a case in which the antenna user was not shown to either own or lease the property upon which the antenna was placed.

Whether before the FCC or in state court, the burden of demonstrating a particular restriction complies with the OTARD Rule is on the community association (or other person or entity) seeking to enforce the restriction. 47 C.F.R. §14.000(f). This can be an extreme burden for community associations in terms of time and cost for technical and legal services required to draft restrictions that comply with the OTARD Rule, or to defend them before the FCC or in state court proceedings. For example, if a placement preference restriction is challenged, the association must be prepared to prove the preferred location or locations will not result in any unreasonable delay or cost increase or impermissible signal degradation as compared to any other location the antenna user may select. The user does not have any burden to prove any impairment in fact exists. In essence, there is a presumption any restriction will "impair".

The OTARD Rule applies to (1) antenna that are one meter (39.37") or less in diameter and are designed (A) to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite, or (B) for use to receive video programming services via multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, or to receive or transmit fixed wireless signals other than via satellite; and (2) antenna that is used to receive television broadcast signals. 47 C.F.R. §1.4000(a)(1)(i)-(iii).

Direct broadcast satellite service antenna ("DBS") consist primarily of the "typical" 18" to 24" dish currently used for DIRECTTV or Dish Network systems. Multipoint distribution service antenna ("MMDS") are described by the FCC in footnote 82 of its Report and Order (see Footnote 1) as follows: "MMDS antennas usually take one of three general forms: a rounded disk about 18 inches across, with a metal screen or solid cover; a parabolic (curved rectangular) sheet about 12 inches by 18 inches, either solid or open grillwork; or a "Yagi" antenna, which is a straight, branch-like device or varying length." Fixed wireless signals are defined by the OTARD Rule as "any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location." 47 C.F.R. §1.4000(a)(2). Examples of antenna in this group are antenna used to provide telephone service or high-speed Internet access to a fixed location.

The OTARD Rule now also expressly applies to prohibit restrictions as to a mast supporting any covered antenna to the extent the restriction impairs installation, maintenance or use, subject to the safety and historic preservation exceptions. 47 C.F.R. §1.4000(a)(1)(iv). The FCC has recognized the following two restrictions regarding masts which it deems "qualify as legitimate safety objectives . . ." under the rule: (1) the mast should not exceed 12 feet in height above the roof, and (2) the antenna should not be taller than the distance between the antenna and the lot line. These safety requirements are taken from the Building Officials & Code Administrators International, Inc. model code (the "BOCA Code Limits"). However, the FCC has also stated these are not absolute restrictions, "but rather simply a trigger for an application process." Consequently, a per se restriction based on the BOCA Code Limits is unenforceable under the OTARD Rule. However, a restriction may require a prior approval process for masts which exceed the BOCA Code Limits to determine valid safety issues. Safety is the only issue. The FCC also specifically removed "the appearance of a device from the factors we examine to determine the validity of a safety objective ..." If the safety requirements are met, installation of a covered antenna must be allowed.

As "fixed wireless signals" cover video, voice and data services, some have condemned the expansion of the OTARD Rule to cover same as exceeding the authority of the FCC under Section 207 of the Act which expressly states it covers "video programming services . . .". Community associations can take some solace in the fact the rule now specifically provide that "[f]ixed wireless signals do not include, among other things, AM radio, FM radio, amateur ("HAM") radio, Citizen's Band (CB) radio, and Digital Audio Radio Service (DARS) signals." 47 C.F.R. §1.4000(a)(2). The rule also does not cover hub or relay antenna. "It applies only to 'consumer - end antenna." See May 2001 FCC Fact Sheet. Finally, the Report and Order states the acceptable quality signal element of the impairment limitations applies only "in the viewing area, and, we are told in footnote 46 of the Report and Order, that as an example this means the OTARD Rule does not apply to "antenna designed to receive distant TVBS [television antenna] signals (emphasis added)."

The OTARD Rule applies only to covered antenna which are located "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 . . .". 47 C.F.R. §1.9000(a)(i). Either exclusive use OR exclusive control is sufficient. "'Exclusive Use' means an area of the property that only you, and persons you permit, may enter or use. If the area is shared with others or accessible without your permission, it is not generally considered 'exclusive use.'"

The FCC has distinguished exclusive use area from "common property" ("common area") and "restricted access property". Common property has been described by the FCC as "e.g., common property within condominiums, ... cooperatives, rental complexes or manufactured housing parks - where viewers may have access to, but not possession of and exclusive rights to use or control, the area . . .". Restricted access property has been described as "areas of a building to which viewers generally do not have access or possession, such as the rooftop . . .". The OTARD Rule does not apply to common property (common area) or restricted access property.

Whether condominium or townhouse, the fact the community association has repair, replacement or maintenance responsibilities regarding a particular area is not controlling in determining whether it is an exclusive use area. On the other hand, the fact that an area may be an exclusive use area for purposes of the OTARD Rule does not preclude a community association from otherwise regulating the use of the area (such as by banning grills on condominium balconies). See May 2001 FCC Fact Sheet.

The condominium or townhouse declaration or other documents setting forth covenants and restrictions applicable to particular property, community association bylaws and rules to a lesser extent, and the applicable deed or lease will generally control in determining if a particular area is an exclusive use or control area. Especially as to condominiums, state statutes are also relevant and in some cases may control over the governing documents. For example, in one case the FCC held the roof of a townhouse was exclusive use area because the declaration included the roof in the definition of "Home Exterior" and provided each owner had the exclusive right to use and enjoy the owner's Home Exterior.

In single family home subdivisions an owner will (with rare exception) have both exclusive use and exclusive control over all of the owner's property and improvements thereon. The bizarre results that can occur given this extensive exclusive use/control area is demonstrated in In re Holiday. The FCC describes the situation in that case as follows:

The FCC held that OTARD Rule applied to all of the owner's antenna. It did however recognize a restriction as to the number of antenna that could be applied to antenna "that is merely duplicative and not necessary to the reception of video programming."

In a condominium (or apartment), an owner's exclusive use or control area is much more limited. In its May 2001 Fact Sheet, the FCC gives as examples of typical exclusive use areas in condominiums a "balcony, terrace, deck or patio that only you can use . . .". It also states the OTARD Rule does not apply to "common areas, such as the roof, the hallways, the walkways or the exterior walls of a condominium or apartment building", that "[a]n antenna that extends beyond the balcony or patio is usually considered to be in a common area that is not within the scope of the rule", and that "the rule would not apply to prohibit restrictions that prevent drilling through the exterior wall of a condominium or rental unit." The FCC examples will not always apply. The governing documents for each individual condominium project must be consulted. See Section 4.4 above.

A townhome falls somewhere between the single family and condominium situations. Care should be taken as to terminology. Many condominiums are called townhomes. In a true townhouse the owner generally owns the property upon which the townhouse is located, and generally has more exclusive use of their home than a condominium owner but somewhat less than in the case of a single family home owner. The applicable governing documents covering the antenna user's property are generally controlling as to determination of exclusive use or control area. See Section 4.4 above.

Section 1.4000(a)(4) of the OTARD Rule states:

No attorney's fees shall be collected or assessed and no fine or other penalties shall accrue against an antenna user while a proceeding is pending to determine the validity of any restriction. If a ruling is issued adverse to a user, the user shall be granted at least a 21-day grace period in which to comply with the adverse ruling; and neither a fine nor a penalty may be collected from the user if the user complies with the adverse ruling during this grace period, unless the proponent of the restriction demonstrates, in the same proceeding which resulted in the adverse ruling, that the user's claim in the proceeding was frivolous.

Under this portion of the OTARD Rule, a community association may not assess a fine or recover attorneys' fees even if the restriction is determined to be valid under the rule unless the user fails to comply within the 21-day grace period or the user's claim is determined to be frivolous. This portion of the rule applies to proceedings before the FCC and to state court proceedings. Thus, in Daly vs. River Oaks Place Council of Co-Owners, 59 S.W. 3d 416 (Tex. App.-Houston [1st Dist.] 2001, no writ), a Houston, Texas court of appeals held the community association could not recover $26,996.00 in attorneys fees awarded by the trial court through trial or any fees incurred thereafter other than under the 21-day grace period rule. It also held the 21-day grace period did not start to run until all appeals are exhausted. The May 2001 Fact Sheet does make clear that none of the foregoing applies if the OTARD Rule does not apply, giving as an example installation of an antenna "on a condominium general common element or hanging outside beyond an apartment balcony."

The short answer to what restrictions are permitted is, if the OTARD Rule applies, not many; and most restrictions that are permitted still may not violate the "impairment" limitation of the rule as above discussed in Section 2.2 (i.e., may not unreasonably delay or increase costs, or preclude reception or transmission of an acceptable quality signal). Permissible restrictions and rules can be developed only on a project by project basis after careful review of the applicable governing documents, including especially the condominium, townhouse or subdivision covenants and restrictions, as well as the actual physical characteristics of the property in question, and usually only with the assistance of a qualified technician and attorney. Subject to this caveat, some of the more common antenna restrictions are discussed below.

If the type of antenna to be installed is not covered by the OTARD Rule or it is to be placed in other than an exclusive use or control area, the rule does not apply. In such cases, a community association may enforce any restrictions otherwise enforceable under law. For example, as the OTARD Rule does not apply to amateur ("HAM") radio antenna, enforcement of a restriction prohibiting any such antenna outside a residence or condominium unit would not be barred under the rule. Also, community associations have no obligation under the OTARD Rule to provide a place for installation of a covered antenna if a person does not have an exclusive use or control area. See May 2001 FCC Fact Sheet.

The May 2001 FCC Fact Sheet makes clear that the OTARD Rule does not barred enforcement of other restrictions or rules in any exclusive use or control area not involving covered antenna such as a restriction banning grills on balconies.

The OTARD Rule provides an exception for clearly defined, legitimate safety objectives as above discussed. See Section 6.0. Most safety restrictions act only as a trigger to a prior approval process to determine if a particular installation meets the safety requirements. Some may be absolute if a covered antenna could not in any event be safely installed contrary to the restriction. An example of the latter would appear to include restrictions against placement of antenna within a certain distance of power lines. Other examples of safety restrictions given in the May 2001 FCC Fact Sheet include restrictions against placement of antenna on a fire escape, and installation requirements that describe proper methods to secure an antenna. See also Section 6.0.

Prior approval restrictions as to any covered antenna are deemed to cause an unreasonable delay. Such restriction are enforceable under the OTARD Rule only if necessary to accomplish a legitimate safety or historic preservation objective. See Sections 3.2 and 6.0. When permitted, the review process must be expedited. The FCC has held a 30-day review period is unreasonable.

A "notification process is permissible only to the extent that it constitutes a simple notification by an owner to the Association that he has installed or is about to install an antenna. If the notification process is implemented so as to delay installation in any way, we will consider it to be a prior approval requirement and impermissible under the Rule". The primary purpose of the notification process is to enable a community association to promptly inspect an antenna after it is installed to confirm compliance with permissible restrictions. It also appears to be permissible and advisable to require the antenna user to include the antenna installation and specifications brochure with the notification form. The brochure can then be used in connection with an inspection of the installed dish to determine applicability of the OTARD Rule and compliance with permissible restrictions (including compliance with the manufacturer's requirements). The association cannot require the antenna user to pay any costs of inspection.

As discussed in Section 4.3, the fact a community association has maintenance responsibilities regarding a given area of property does not in itself prevent the area from being an exclusive use area. However, in such cases, the association can require the user to temporarily remove the dish if necessary to perform normal maintenance. More generally, a guideline stating a permitted antenna "shall not interfere nor obstruct exterior maintenance responsibilities of association" has been held by the FCC to be permissible as written so long as the guideline was not used to impair an antenna user's installation, maintenance and use as implemented.

A community association may "take reasonable steps to protect itself from liability stemming from the installation of [a covered antenna], provided the indemnification is not used as an equivalent for prior approval." This may include reimbursement of the association for repairing any damage to a common area (or presumably to other area the association is required to maintain) caused by the installment, maintenance or use. One method to accomplish this goal is to include a short (one or two sentence) indemnification provision in a notification form (along with a provision for full assumption of risk by the user as to installation, maintenance or use).

Early on the FCC determined community associations could require paining of an antenna "so that it blends into the background against which it is mounted . . ." so long as it will not interfere with reception of an acceptable quality signal. More generally the FCC has stated restrictions requiring "reasonable measures" be taken for screening or camouflaging of a covered antenna to reduce its visual impact and which are reasonably implemented are acceptable. At the same time the FCC has stated restrictions requiring "screening by expensive landscaping . . ." would be unacceptable.

The FCC has stated a party enforcing restrictions on a covered antenna "may express a preference for location of antenna but has the burden to demonstrate that the preferred location does not impair installation, maintenance, or use of a protected antenna." Technical assistance will generally be required in establishing placement preferences. Usually several preferences will be stated in the order preferred (such as requiring installation in the attic of a home if an acceptable quality signal can be transmitted/received, or otherwise in the rear yard of the home and so as not to be visible from any street, etc.). If any impairment limitation is violated as to all of the preferred locations, the user must be permitted to install the covered antenna at another exclusive use/control location which will not result in any impairment. In such case a community association cannot require prior approval as to the alternate location.

As discussed in Section 3.2, per se height restrictions are not enforceable, but a prior approval process may be required for masts higher than 12 feet above a roof or closer than the height of the antenna to a property line solely to meet safety requirements. There is no size limitation as to television (TVSB) antenna. See Section 4.5. All other antenna are subject to the one meter limit set forth in the OTARD Rule. 47C.F.R. §14.000(a)(1). There also is no limit on the number of covered antenna which are permitted by the rule except that antenna may not be installed if it is "merely duplicative and not necessary for the reception of video programming." See Section 4.5.

The FCC requires specificity in drafting permitted restrictions, rules or guidelines, including as to specification of safety objectives. General reference restrictions such as requirements a covered antenna be installed in accordance with the National Electric Code or with "all applicable city and state laws and regulations and manufacturer's instructions" are unenforceable. See Section 6.0.

Professional installation may be required for transmitting fixed wireless signal antenna but not otherwise.

Community associations may not require antenna users to sign blanket agreements to comply with guidelines or rules. For example, in one case the antenna guidelines required the antenna user to sign a document acknowledging the user had read the guidelines and agreed to be bound by them. The FCC held the requirement invalid stating "[w]e believe that many antenna users, when confronted with this requirement, would be wary of losing any rights they might have or of accepting any obligations for which they should not be held responsible."