FCC rules regulate satellite dishes in community associations

Although FCC rules have been in place for a couple of years already, they continue to be a source of controversy among community associations. Although everyone knows by now that the Federal Communications Commission prohibits covenants and rules that restrict satellite dishes, few board members understand how far the FCC goes in protecting the right of the public to receive television signals.

The rules currently in effect prohibit restrictions that impair the installation, maintenance or use of small antennas used to receive video programming. These antennas include DBS satellite dishes that are less than one meter (39") in diameter (larger in Alaska), TV antennas, and antennas used to receive MMDS .(multichannel multipoint distribution -- or wireless cable). The rules prohibit non-safety restrictions that:

The rules apply to state or local laws or regulations, including zoning, land-use or building regulations, private covenants, homeowners' association rules or similar restrictions on property

The FCC rules presently apply only with respect to property over which the owner has exclusive use or possession. If the property is a common area open to all owners, then the Association may prohibit the dishes (until such time, if ever, that the FCC makes a further ruling).

In the case of a condominium, all property is considered to be common area except only for the air space of the units and those portions designated as limited common elements (in which the unit owner enjoys the exclusive right of use and possession, such as a patio or balcony).

In other words, condominiums may restrict satellite dishes except only dishes that are installed within the boundaries of a unit or in the owner's limited common elements.

In a non-condominium setting, such as homeowners associations, the lots and buildings themselves are owned by the owners and they have exclusive use and possession of their lots. Although the association may perform exterior and roof maintenance, that portion of the roof extending over the lot lines of an owner's lot actually exclusively belongs to the owner. This is made clear by the fact that the declarations typically contain party wall agreements, recognizing that each owner owns that portion of the building on his or her lot. Therefore, homeowners' associations may not restrict the installation of satellite dishes on the owner's lot, including the roof. Of course, if the owner damages the roof or exterior, or causes other property damage as a result of the installation, the association can require the owner to compensate the association for such damages.

Even if the FCC rules do apply to the association, reasonable restrictions are allowed. Declaration restrictions and rules and regulations dealing with architectural control concerns or placement of antennas are still permitted if they are reasonable (that is, they do not unreasonably delay or prevent installation or use, or unreasonably increase the cost, of an antenna). The association has the burden of proof to demonstrate that any restrictions are reasonable under the FCC rules.

So far, in most of the association cases reviewed by the FCC, the association has lost the case and the antenna owner has prevailed. The FCC has invalidated requirements for permits or prior approvals of satellite dishes or even nominal permit fees. The FCC also has invalidated entire satellite dish rules when it finds even one provision unenforceable. Therefore, Associations should re-think their satellite dish rules and remove any prior approval or permit requirements from their restrictions.

Legitimate safety restrictions are allowed. Safety restrictions are permitted even if they impair reception. Examples of valid safety restrictions include fire codes preventing people from installing antennas on fire escapes, restrictions requiring that a person not place an antenna within a certain distance from a power line, electrical code requirements to properly ground the antenna, and installation requirements that describe the proper method to secure an antenna. The rule must explain the safety rationale behind the restriction.

We will post any updates right here so check back from time to time for the latest information. You can also check out the
FCC's home page.

copyright 1996, 1997, 1998 Jeffrey A Goldberg