I Want My MTV
Adam J. Cohen
Common Interest Magazine
November 10, 2013
The declarations of most older condominiums contain standardized clauses prohibiting “television antennas” (and virtually anything else) from being attached to exterior walls or roofs without the Board’s permission. Today, many communities continue to adopt rules which ban all antennas and satellite dishes or dictate how or where they can be installed. Obviously the association has an interest in protecting common areas from damage, obstructions, and eyesores, but federal law strictly limits how the Board can go about doing so. It’s worth revisiting these limitations because so many associations still attempt to enforce these rules without realizing they could be violating federal law.
The Federal Communications Commission adopted its Over-the-Air Reception Device (“OTARD”) Rule in 1996. It prohibits any government or private association from imposing restrictions which would impair the installation, maintenance, or use of satellite dishes that are less than one meter in diameter, television antennas of any size, and antennas for cable and wireless signals. “Impairing” means doing essentially anything that prevents, delays, or increases the cost of installation, maintenance, or use, or that reduces the quality of reception. However, the OTARD Rule only applies to the portions of the community which the resident owns outright or over which he has exclusive use or control. These typically include the unit’s interior and any limited common elements like a deck or balcony unless the declaration says otherwise.
This means the association is free to ban dishes and antennas, as well as their related equipment and wiring, on or through common elements which often include roofs, exterior walls, and yards. Even a single wire or screw through an outer wall can be prohibited. But if decks, balconies, patios, and similar areas are limited common areas according to the declaration, the owner or tenant has the right to install there. This means the association cannot require advance board approval, even with an expedited process merely to confirm that the installation will have federal protection, since this is considered to be a delay of installation. Neither can the association prohibit multiple dishes or antennas in these areas if they are necessary for the services the owner wishes to receive.
Associations remain free to announce location “preferences” so long as they are only enforced against new installations (that is, not retroactively against existing dishes and antennas) and so long as they do not impair installation, maintenance, or use. For example, the board can adopt a rule requiring installation on the home’s rearward side instead of its front, or beneath the balcony railing instead of above it, with all else being equal. Likewise, the association can buy a central antenna to be used instead of personal receptors. But if individual equipment or any non-preferred part of the limited common elements would yield even slightly better reception or convenience, the owner has the right to choose it instead.
While the OTARD Rule does not let associations require pre-approval, it does let them require notification. It also allows associations to require that the antenna or dish and its related equipment and wiring be placed as inconspicuously as possible without impairing installation, maintenance, or use. The board can require that the contractors installing the equipment be properly licensed and insured, and also require owners to indemnify the association and others for any damage their antennas or dishes cause. Legitimate safety objectives and historic preservation are also fair game, so written prohibitions against installations too close to power lines and fire escapes are also permissible.
If your association’s rules impose restrictions against television antennas and satellite dishes which exceed what the FCC would allow, your board should consider updating them as soon as possible – and certainly before attempting to enforce them.
Adam J. Cohen is an attorney with the Law Firm of Pullman & Comley, LLC headquartered in Bridgeport, Connecticut. As the Chair of its Community Associations Section, he represents and gives seminars to condominiums, tax districts, and other communities in matters ranging from amendments of governing documents to revenue collection strategies and commercial disputes. Reposted with permission from the CT Chapter of the CAI.