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This
publication, taken from a Law Office website (http://www.s-f-law.com/u_1298.htm)
is intended to provide residents with general information. The material
contained herein should not be construed as legal advice or opinion on
specific facts or matters. FCC ISSUES NEW SATELLITE DISH REGULATIONS - NEW CHALLENGES FOR ASSOCIATIONS On November 20, 1998, the Federal
Communications Commission released revised regulations dealing with the right
of consumers - including residents of condominiums and other common interest
community associations - to install and use satellite dishes. These new regulations implement a federal
mandate to eliminate restrictions on the ability of U.S. consumers to install
and use satellite dishes, including prohibitions on satellite dishes
contained in the Declarations and Rules of many associations. Under the new regulations, if a unit has a
private balcony, terrace or deck, the owner or occupant of that unit now has
a federally-protected right to install a small satellite dish (less than one
meter wide) on that balcony, terrace or deck. However, associations are under
no obligation to allow the installation of satellite dishes on roofs,
exterior walls or other common areas. The Telecommunications Act of 1996 In 1996, the U.S. Congress decided, as a
matter of federal policy, that all U.S. consumers should have access to video
programming offered by means other than cable, such as television services
available by satellite dish. To accomplish that objective, Congress
passed the Telecommunications Act of 1996. One of the key provisions of that
Act directed the Federal Communications Commission ("FCC") to
develop and adopt regulations to abolish governmental and non-governmental
restrictions that impair a viewer's ability to receive video programming
services through direct broadcast satellite dishes and other over-the-air
reception devices ("OTARDS"). This federal mandate to eliminate
restrictions on the use of satellite dishes cast serious doubt on the
enforceability of satellite dish restrictions contained in many associations'
Rules and Declarations and raised other vexing questions: Did the new federal law mean that
each and every unit owner could have his or her own satellite dish? Did every unit owner have a
federally protected right to install a satellite dish on the roof, outside
walls or other common elements of the association? Did unit owners have the
unrestricted right to install a satellite dish on a unit's balcony or balcony
railing? What about renters? The New FCC Regulations After two years of deliberation, debate
and fine-tuning, the FCC released revised regulations in September and
November of 1998 that answer these and other questions. The FCC also
explained its new regulations in two major policy pronouncements: an
"Order on Reconsideration" released by the FCC on September 25,
1998, and a "Second Report and Order" released by the FCC on
November 20, 1998. (The full text of the FCC's September 25, 1998 Order on
Reconsideration and November 20, 1998 Second Report and Order can be viewed
at or downloaded from the FCC's excellent website at http://www.fcc.gov/Bureaus/Cable/.) Although the new regulations and the FCC's
explanatory comments are lengthy and complex, here are some of the key
principles applicable to homeowner associations: No Federally-Protected Right to
Install Satellite Dishes on Common Elements Unit owners do not have a federally
protected right to install a satellite dish on an association's walls, roof
or other common elements. Provisions in Declarations and Rules that prohibit
the installation of satellite dishes on an association's common elements are
lawful and remain fully enforceable. Unit Owners Have Federally-Protected
Right to Install Satellite Dishes on Private Balconies, Terraces and Decks A unit owner who has "exclusive
use" or "exclusive control" of a balcony, deck, terrace or
other property does have a federally-protected right to install a
small satellite dish (less than one meter wide) on that "exclusive
use/control property." This federally-protected right exists even
if the unit already receives (or has ready access to) a full range of
television programming services provided by a cable television provider or an
association-controlled satellite receiver. As a result, if a unit has a private
balcony, balcony railing, deck or terrace that is a limited common element or
is subject to an exclusive use easement, the association can no longer
prohibit the installation of a satellite dish, even if the association's
Rules and Declarations expressly prohibit satellite dishes. The same rule will also apply to resident
shareholders of a cooperative whose proprietary leases include exclusive use
of a balcony, deck or patio. Limited Association Regulation of
Satellite Dishes Still Permitted
Although an association may no longer prohibit
owners from installing satellite dishes on their private balconies, terraces
and decks, associations may still lawfully adopt and enforce certain types of
rules relating to those satellite dishes. According to the FCC, an
association can lawfully enforce restrictions on satellite dishes that are
necessary to accomplish "a clearly defined safety objective," as
well as other reasonable rules that do not impair the viewer's ability to
install, maintain or use a satellite dish. By way of example, a rule establishing
reasonable, safety-based installation standards for mounting satellite dishes
on balcony railings should be enforceable if the rule does not result in
unreasonable delay or expense to the unit owner. Likewise, a rule requiring that all
satellite dishes be of a specific color would be enforceable if that
requirement does not impair the unit owner's ability to install, maintain or
use a satellite dish. Unit Renters Much of the FCC's November 20, 1998,
Second Report and Order deals with renters. Although a complete treatment of the
satellite dish rights of renters is beyond the scope of this document, the
Second Report and Order gives the renter of a unit in a condominium or other
common interest community association a federally-protected right to install
a satellite dish on the rented unit's private balcony, balcony railing,
terrace or deck. Not only does the renter not have
to obtain the unit owner's consent or permission to install a satellite dish,
the FCC has declared that any provision in a lease that prohibits the installation
of a satellite dish is now void and unenforceable. (The FCC's decision that renters do not
have to obtain permission to install a satellite dish represents an abrupt
reversal of policy; the Order on Reconsideration released by the FCC on
September 25, 1998 provided that renters did have to obtain the owner's
permission before installing a satellite dish.) Enforcement and Fines Suspended If a unit owner who installs a satellite
dish on a private balcony, balcony railing, deck or terrace is charged with
violating an association rule or regulation relating to satellite dishes, the
unit owner can suspend the association's enforcement powers by initiating a
legal proceeding to determine if the association's rule is unenforceable
under federal law. If the unit owner does initiate such a
proceeding, federal law now provides that the association cannot assess or
enforce a fine or penalty (including attorneys' fees) against the unit owner
until twenty-one days after the validity of the association's restriction has
been upheld. "What Can Homeowners' Associations
Do Now?" These new federal mandates should not have
any meaningful impact on associations whose units do not have private
balconies or other exclusive use/control areas. Such associations can
continue to enforce existing prohibitions on the installation of satellite
dishes on roofs, exterior walls and other common elements, just as in the
past. Greater challenges face associations with
units that do have private balconies, terraces, decks or other exclusive
use/control areas. Although prohibitions on the installation of satellite
dishes on common elements remain lawful, the owner (or renter) of each and
every unit with an "exclusive use/control area" now has a federally
protected right to install a satellite dish. Such associations should consider adopting
reasonable, safety-based installation standards for mounting satellite dishes
on balcony railings and other exclusive use/control areas. In addition, associations may wish to
reduce the demand for private satellite dishes by giving residents access to
an expanded selection of television programming services, whether provided
via a land-based cable or a central satellite receiver dish. Other solutions and strategies will have
to be tailored to address each association's special needs and circumstances. Full Text of FCC Code of Federal Regulations 47, 1.4000(a) and (b) (a) Any restriction, including but not limited
to any state or local law or regulation, including zoning, land-use, or
building regulations, or any private covenant, contract provision, lease
provision, homeowners' association rule or similar restriction, 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
that impairs the installation, maintenance, or use of: (1) an antenna that
is designed to receive direct broadcast satellite service, including
direct-to-home satellite services, that is one meter or less in diameter or
is located in Alaska; (2) an antenna
that is designed to receive video programming services via multi-point
distribution services, including multi-channel multi-point distribution
services, instructional television fixed services, and local multi-point
distribution services, and that is one meter or less in diameter or diagonal
measurement; (3) an antenna
that is designed to receive television broadcast signals; or (4) a mast
supporting an antenna described in subparagraphs (1), (2) and (3) above is
prohibited, to the extent it so impairs, subject to paragraph (b). For purposes of
this rule, a law, regulation or restriction impairs installation, maintenance
or use of an antenna 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. Any fee or cost
imposed on a viewer by a rule, law, regulation 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. No civil,
criminal, administrative, or other legal action of any kind shall be taken to
enforce any restriction or regulation prohibited by this rule except pursuant
to paragraph (c) or (d). In addition,
except with respect to restrictions pertaining to safety and historic
preservation as described in paragraph (b) below, if a proceeding is
initiated pursuant to paragraph (c) or (d) below, the entity seeking to
enforce the antenna restrictions in question must suspend all enforcement
efforts pending completion of review. 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 viewer, the viewer 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 viewer if the viewer 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 viewer's claim in the proceeding was frivolous. (b) Any restriction otherwise prohibited
by paragraph (a) is permitted if: (1) it is
necessary to accomplish a clearly defined, legitimate safety objective that
is either stated in the text, preamble or legislative history of the
restriction or described as applying to that restriction in a document that
is readily available to antenna users, and would be applied to the extent
practicable in a non-discriminatory manner to other appurtenances, devices,
or fixtures that are comparable in size and weight and pose a similar or
greater safety risk as these antennas and to which local regulation would normally
apply; or (2) it is
necessary to preserve a prehistoric or historic district, site, building,
structure or object included in, or eligible for inclusion on, the National
Register of Historic Places, as set forth in the National Historic
Preservation Act of 1966, as amended, 16 U.S.C. § 470, and imposes no greater
restrictions on antennas covered by this rule than are imposed on the
installation, maintenance or use of other modern appurtenances, devices or
fixtures that are comparable in size, weight, and appearance to these
antennas; and (3) it is no
more burdensome to affected antenna users than is necessary to achieve the
objectives described above. |