Bad
Reception: Federal Regulation of
Condominium
Association Restrictions on Antennas
by
Stephen
W. Smith, Esq.
Following the passage
of the Telecommunications Act of 1996, the Federal Communications Commission (“FCC”)
issued rules limiting restrictions imposed by public and private entities on individuals’
use of “over-the-air reception devices” (“OTARD”) – antennas, including dish
antennas, which receive video programming via television, satellite or
broadband radio (wireless cable) broadcasting, or which receive or transmit
fixed wireless data signals. Known as
the OTARD rules, they generally prohibit restrictions imposed by, among others,
condominium associations, which impair or impede the installation, maintenance and
use of such antennas.
To fall within the coverage of the OTARD rules,
an antenna must be located on property owned or rented by, and within the
exclusive use or control of, its user.
Furthermore, the rules only cover antennas up to one meter (39.37
inches) in diameter or diagonal size, with the exception of television
broadcast antennas which are not limited by size. If an antenna does fall within their coverage,
the OTARD rules prohibit any regulation or restriction which unreasonably
delays or prevents, or unreasonably increases the cost, of the installation,
maintenance or use of that antenna, or which precludes the antenna’s reception
or transmission of an acceptable quality signal.
This article
discusses the limitations which the OTARD rules impose on condominium
associations and the regulations which they are considering issuing – or have already
issued – restricting the ability of association members to install, maintain or
use antennas.
Elements
of the OTARD Rules
Unreasonable
Delay or Prevention
A regulation that prohibits all antennas is
obviously barred by the OTARD rules. Furthermore,
a requirement that a user obtain the association’s approval prior to installing
an antenna is deemed to create an unreasonable delay to installation and is
generally prohibited. Although an association
may require members to give advance notice that they are planning to install an
antenna, the notice requirement cannot in any way be used to establish a prior
approval procedure or otherwise delay the intended installation.
Unreasonable
Expense
The OTARD rules state that “[a]ny fee or
cost imposed on a user by a rule, law, regulation or restriction must be
reasonable in light of the cost of the equipment or services,” as well as in
light of any fee or cost imposed on comparable devices by the rule, law,
regulation or restriction. Guidance on
the OTARD rules issued by the FCC in 2006 thus provides that “restrictions
cannot require that expensive landscaping screen relatively unobtrusive . . . antennas.” However, it also suggests that “[a] requirement
to paint an antenna so that it blends into the background against which it is
mounted would likely be acceptable, provided it will not interfere with
reception or impose unreasonable costs.”
Acceptable
Quality Signal
An association requirement that antennas be
located where reception proves to be substantially degraded or even impossible
would be prohibited by the OTARD rules.
However, a regulation requiring that antennas be placed so that they are
not visible from the street might be permissible if such a placement exists
that does not prevent reception of an acceptable quality signal (and also does
not impose an unreasonable delay or expense).
Notably, what constitutes an acceptable quality signal will depend on
the type of antenna that the user seeks to install. For a digital antenna, it must be located and
oriented so that it has an unobstructed, direct view of the satellite or other source
or target of its signals. Analog
antennas, by contrast, may have
more
flexibility in their location and orientation and still obtain an acceptable
quality signal.
Exclusive
Use or Control
Again, antennas are only covered by the
OTARD rules if they are located on “property within the exclusive use or
control of the antenna user.” The FCC’s 2006
guidance attempts to parse the meaning of this phrase. “For example,” it states, “your condominium
or apartment may include a balcony, terrace, deck or patio that only you can
use, and the [OTARD rules apply] to these areas.” Furthermore, the FCC makes clear that, just
because “the association may enter an area for the purpose of inspection and/or
repair does not mean that the resident does not have exclusive use of that
area.” Similarly, even if the “association
regulates other uses of the exclusive use area (e.g., banning grills on
balconies), that does not affect the viewer’s rights” under the OTARD rules,
because the rules expressly cover antennas on “property over which the person
has either exclusive use or exclusive control.” Notably, the reverse is not true: “nothing in
[the OTARD rules] changes the landlord’s or association’s right to regulate use
of exclusive use areas for other purposes [than antennas]. For example, if the lease prohibits antennas
and flags on balconies, only the prohibition of antennas is eliminated by [the
OTARD rules]; flags would still be prohibited.”
By contrast, association regulations
barring the installation of antennas in “common areas, such as the roof, the
hallways, the walkways or the exterior walls of a condominium or apartment building”
are not prohibited by the OTARD rules, so long as those areas are indeed
defined as common areas under the condominium documents. If, for example, exterior walls are expressly
defined as common areas, the OTARD rules “would not apply to restrictions
that prevent drilling through the exterior wall of a condominium or rental unit
and thus restrictions may prohibit installation that requires such drilling.” Moreover, the OTARD rules do not prohibit
restrictions on the installation of antennas “over a common area.” Thus, for example, “[a]n antenna that extends
out beyond the balcony or patio is usually considered to be in a common area
that is not within the scope” of the OTARD rules. Finally, the FCC notes to all members of a
condominium association that the association “is not obligated to provide a
place for you to install an antenna if you do not have an exclusive use area”
from which you can obtain an acceptable quality signal.
Placement
Preferences
In its guidance, the FCC notes that “[s]ome
communities have written restrictions that provide a prioritized list of
placement preferences so that residents can see where the association wants
them to install” their OTARD-covered antennas.
This approach, the FCC tells us, is generally permissible under the
OTARD rules and “residents should comply with the placement preferences.” However, placement preferences will be deemed
valid only so long as they do not violate any the three cardinal tenets of the
OTARD rules by imposing unreasonable delay on the installation, imposing unreasonable
expense on the user, or precluding reception of an acceptable quality signal.
The
Safety Exception
It should be noted that the OTARD rules set
forth exceptions to their own coverage, including one which may very well apply
to condominium association regulations on antennas. The OTARD rules state that regulations that
would otherwise be prohibited under the rules will nonetheless be permitted if
they are “necessary to accomplish a clearly defined, legitimate safety objective.”
However, the OTARD rules specifically
require that, to constitute a valid exception, a safety objective must be (a) “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 (b) applicable “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.” Moreover, the association’s regulation can be
“no more burdensome to affected antenna users than is necessary to achieve” the
stated safety objective. The FCC’s 2006 guidance
suggests the following examples of regulations that would fall within the
safety exception of the OTARD rules: “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; and installation
requirements that describe the proper method to secure an antenna.”
One requirement that associations might be
inclined to impose, on the belief that it falls within the OTARD rules’ safety
exception because it ensures the proper installation of antennas, is a
requirement that members have all antennas professionally installed. According to the FCC’s 2006 guidance, however,
“[i]n general, associations, landlords, local governments and other restricting
entities may not require professional installation for receive-only antennas, such
as one-way DBS satellite dishes.” However, the guidance provides that a
condominium association “may require professional installation for transmitting
antennas based on the safety exception” to the OTARD rules, apparently because
of concern for the energy or radiation emitted by such antennas.
Central
Antennas
Some
condominium associations erect one or more central antennas for communal use by
their members. Notably, the FCC has stated
that “the availability of a central antenna may allow the association…to
restrict the installation by individuals of antennas otherwise protected by”
the OTARD rules. However, in order for an
association with a central antenna to validly restrict a member from installing
an individual antenna, it must be the case that
(1) the
person receives the particular video programming or fixed wireless service [with
the central antenna] that the person desires and could receive with an
individual antenna covered under the [OTARD rules] (e.g., the person
would be entitled to receive service from a specific provider, not simply a
provider selected by the association);
(2) the
signal quality of transmission to and from the person’s home using the central
antenna is as good as, or better than, the quality the person could receive or
transmit with an individual antenna covered by the [OTARD rules];
(3) the costs associated with the use of the central antenna are
not greater than the costs of installation, maintenance and use of an
individual antenna covered under the [OTARD rules]; and
(4) the requirement to use the central antenna instead of an
individual antenna does not unreasonably delay the viewer’s ability to receive
video programming or fixed wireless services.
If
these conditions are not fully met by the central antenna, the FCC has stated
that “an individual who wants video programming or fixed wireless services
other than what is available through the central antenna should not be
unreasonably delayed in obtaining the desired programming or services either
through modifications to the central antenna, installation of an additional
central antenna, or by using an individual antenna.”
Associations
that do not presently have a central antenna, but are considering installing
one in the future, may wonder whether they can restrict the installation of
individual antennas now, before the central antenna is functional. According to its 2006 guidance, the FCC would
tend to answer this question in the negative, as it is not the FCC’s intent “to
deter or unreasonably delay the installation of individual antennas because a
central antenna may become available.” However,
the FCC has stated that association members “could be required to remove
individual antennas once a central antenna is available if the cost of removal
is paid by the landlord or association and the user is reimbursed for the value
of the antenna.”
Other
Issues
The
OTARD rules are designed to protect consumers’ rights to any and all antennas
which they might need to receive the various video programming services that they
seek. Accordingly, the rules prohibit an association from limiting
members to a certain number of antennas if more than that number is necessary
to receive all of the programming desired by members.
Furthermore,
the OTARD rules provide that antennas are allowed to be mounted on “masts” in
order to reach the height needed to receive or transmit an acceptable quality
signal. However, the FCC’s 2006 guidance
does note to consumers that “the local government, community association or
landlord may require you to apply for a permit for safety reasons if the mast
extends more than 12 feet above the roofline.”
Moreover, like antennas that extend over common areas, “[m]asts that
extend beyond the exclusive use area are outside the scope” of the OTARD rules,
“and the condominium association may impose any restrictions it wishes
(including an outright prohibition).”
Decisions
by the FCC and Courts
In addition to the FCC’s 2006 guidance, decisions issued by
the FCC and state courts are a vital aid to understanding what types of
antenna-related regulations can validly be imposed by condominium associations,
and what types are prohibited by the OTARD rules.
Many
Invalid Restrictions
In a case
before the FCC entitled In re MacDonald,
the association had implemented regulations containing the following
restrictions:
1) Only
antennas of one meter or less in diameter are permissible.
2) An
Architectural Control Committee permit is required before an antenna may be
installed, and there is a $5.00 fee for the permit.
3) Permit
applications must include a plot plan showing the proposed location and size of
the antenna, a description of any screening, and certification of signal
reception locations by a dealer or installer.
4)
Installation must comply with building codes and include screening, unobtrusive
placement, painting, camouflage or other reasonable measures to ensure safety
and minimize the visual effect of the antenna.
5)
Installation is preferred in the rear yard, not visible from the street, the
golf course or to neighbors, and ground mounted, as long as signal reception is
not impaired.
As a threshold matter, the FCC
noted that, although the association’s regulations made a passing reference to “safety,”
they did not expressly articulate a safety objective and thus were not covered
by the safety exception to the OTARD rules.
To the
extent that the regulations prohibited installation of television broadcast
antennas larger than one meter in diameter, the FCC held that they were
preempted because the OTARD rules protect that type of antenna without a
limitation on the size or shape. As for
the requirement of a permit prior to installation, the FCC concluded that it
violated the OTARD rules by imposing an unreasonable delay and expense on
antenna users. Specifically, it compelled
all potential users to wait an unspecified time while the Architectural Control
Committee reviewed the permit application.
Moreover, the $5.00 fee, while a relatively small amount, was an unreasonable
expense because it was simply unwarranted.
Similarly, although it found that the association’s preference for
ground-mounted installation in a rear yard not visible from the street may be a
permissible preference, the FCC held that the association could not effectively
implement such a preference by means of delaying installation until it
determined whether to grant a permit.
Such approval procedures are time-consuming and likely to deter
potential antenna users, and thus impose unreasonable delay in violation of the
OTARD rules. As for the association’s
requirement of certification of signal reception locations, the FCC found that
it compelled all antenna users to hire an installer, even if the users installed
the antenna themselves. Thus, the
requirement was an unreasonable expense that violated the OTARD rules.
The FCC
also took issue with the fact that the regulation listed only one permitted exception
to the placement preferences: impaired signal reception. Under the OTARD rules, there are two
additional types of impairment – unreasonable delay and cost – which are also valid
justifications for placing an antenna other than where the association
prefers. Furthermore, the FCC noted that
any requirement that a user first demonstrate that the preferred placements
result in unacceptable quality signals, before being allowed to install an
antenna in an alternative location, constitutes an unreasonable prior approval
procedure. To the association’s credit,
the FCC did determine that its screening and
camouflaging requirements only mandated reasonable measures, and found no
evidence that the implementation and enforcement of the requirement had thus
far imposed any unreasonable expense or delay or precluded acceptable quality reception. However, the FCC concluded that, given these
dangers, the association had to specifically state in its regulation that, by “reasonable,”
it meant only measures that did not impose unreasonable expense or delay or
preclude reception of an acceptable quality signal.
Who
Owns the Chimney?
In the FCC
case of In re Lourie, the association’s
restrictions prohibited members from installing exterior antennas on those portions
of the units which the association was obligated to maintain. It just so happened that the association was
obligated to maintain the entire exterior of every unit. A member provided notice to the association
of his intention to install an 18” antenna on his chimney, to which the
association responded that he was prohibited by the restrictions from
installing an antenna there. The FCC ruled
that the fact that the association had responsibility for the repair and
maintenance of the exterior of the member’s townhouse was not controlling. Rather, as its owner, the member had
exclusive use of the townhouse, including its chimney, and thus his installation
of an antenna there clearly fell within the ambit of the OTARD rules. The FCC was not persuaded by the association’s
argument that the member did not use his chimney, finding that exclusive use was
not dependent on actual use. However,
because the association has responsibility for the chimney’s maintenance, the FCC
did rule that the association could require the member to remove his antenna
temporarily if necessary to perform normal maintenance. Furthermore, the FCC held that the association
could require that the member indemnify it from any liability stemming from the
installation of the antenna on the chimney, provided that the indemnification
requirement was not used as an equivalent for prior approval of the antenna.
Out on
the Patio
The
association member in the FCC case entitled In
re Sadler had installed an antenna inside his condominium’s patio area,
mounted on the exterior first-floor wall between the sliding-glass patio doors
and the first-floor windows overlooking the patio. The association challenged the installation,
because its regulations restricted antennas either to an area of the roof designated
by the board of directors, or else the interior of the patio area so long as
the antenna was not attached to the walls of the building and was out of sight
from any street or common area. In
addition, the regulations required members to indemnify the association for
liability if the antenna was installed on the roof, to reimburse the association
if the installation, maintenance or use of the antenna damaged the roof, and to
pay the association’s contractor to inspect the installation after it was
performed.
The FCC
found that the Condominium Plan clearly demonstrated that condominium owners
own the interior and exterior surfaces of the first floor wall facing their
patios, as well as the airspace over the patio extending as high up as the
first-floor ceiling. Therefore, the member
could hang an antenna on the exterior patio wall below the first-floor
windows. The association’s requirement that
antennas be installed on the roof, or behind patio walls, impaired the member’s
rights under the OTARD rules. The member
asserted that his antenna could not receive an acceptable signal when it was
placed on the patio out of sight of the street, and the association failed to
offer any evidence to show otherwise. In
addition, the FCC found that requiring the member to move his antenna to the
roof would unreasonably increase the cost of installation. Similarly, the FCC held that the regulations
imposed an unreasonable expense by both requiring installation on the roof and mandating
indemnification for any damage caused by such installation.
With
regard to the association’s requirement that installations be inspected and
approved by the association’s contractor, at the member’s expense, the FCC
cited its earlier decision in MacDonald
that compelling members to hire a contractor simply to certify an installation
was an unreasonable expense. Indeed, the
FCC also found that requiring members to hire a contractor to perform the installation
was similarly invalid because many antennas are designed for members to install
themselves at no cost. Finally, while it
was a reasonable requirement that contractors that are hired by members must
have insurance to pay for any personal injuries or structural damage, the FCC
ruled that the association’s requirement that the member obtain and provide the
association with copies of the contractor’s worker’s compensation and general
liability insurance policies imposed an unreasonable burden under the OTARD
rules.
In the
Ohio state court case of Woodbridge
Condominiums Owners’ Association v. Jennings, the member installed an
antenna on his patio, which the association’s declaration and by-laws
designated as a limited common area but also defined as “designated or intended
solely for the use” of the unit “to the exclusion of others.” The association challenged the installation
on the grounds that, because the declaration and by-laws allowed the
association a right of access upon limited common areas, the member did not
have exclusive use or control of the patio and thus his antenna was not covered
by the OTARD rules. The court found,
however, that the declaration and by-laws permitted the association to enter any
area of the condominium, including individual units, in order to resolve a
violation. As such, the mere right of
access to remedy a violation, standing alone, did not establish that the member
did not have exclusive use of his patio.
Moreover, given evidence that the antenna could not function properly
unless placed on the patio, and the lack of evidence of any viable alternative
placements which would not violate the association’s regulation, the court held
the association’s regulation to be invalid under the OTARD rules.
Putting
the Lid on Paint
The association
in the FCC case of In re Trabue required
members to paint their antenna in order to blend with the color of the
house. The FCC found that, in general,
such a requirement does not violate the OTARD rules, so long as the required
painting does not void the manufacturer’s warranty or otherwise impose
unreasonable expense on the member.
However, the association’s requirement went beyond painting the antenna
itself to require that the “mounting materials, accessories and cabling”
associated with the antenna must also be painted. The warranty on the member’s antenna provided
that certain parts of the antenna, including the cables, should not be
painted. Therefore, the FCC held that
the association’s painting requirement was preempted by the OTARD rules insofar
as it applied to the painting of cables and other accessories. However, as to the requirement to paint the
antenna itself, there was no evidence that the requirement imposed unreasonable
delay or precluded reception of an acceptable quality signal. Moreover, the member had not demonstrated any
unreasonable cost associated with painting the antenna, especially since the association
had offered to pay for such painting.
How
Many Antennas is Too Many?
Stanley
and Vera Holliday, the homeowners before the FCC in In re Holliday, had erected five television antennas and three
satellite dish antennas on six masts, in order to provide reception for ten
television sets and seven satellite receivers.
The association’s written regulations prohibited the installation of
antennas without prior written authorization from the association’s
Architectural and Environmental Control Committee, and an unwritten policy
limited homeowners to just one satellite dish antenna, as well as just one
television antenna extending no more than 12 feet above the roofline. The FCC ruled that, under the OTARD rules,
the association’s committee authorization requirement created an impermissible
prior approval requirement, and there was no written statement in the regulations
which set forth a safety rationale for the prohibition, other than a
generalized reference to safety concerns.
Similarly, the association’s 12-foot restriction on television antennas
was prohibited because it established a per se bar on antennas without
articulating a legitimate safety purpose or tailoring the restriction to be no
more burdensome than necessary to achieve that purpose.
The FCC
also held that the association’s policy of limiting homeowners to one satellite
dish antenna and one television antenna was based solely on aesthetic concerns,
not a valid safety justification. As
such, that arbitrary limit could not validly impair a member who needed more
than the maximum number of antennas allowed by the association in order to
receive all the video programming that he or she desired. However, the FCC did note that an association
could prohibit the installation of antennas that were merely duplicative and
not necessary for the reception of desired video programming. Nonetheless, the FCC did not apply that
finding to the Hollidays’ case because there was insufficient information in
the record to determine whether any of the eight antennas were unnecessary for
receiving the video programming available in the area.
This
case then proceeded to an
Safety
First
In the
FCC case of In re Frankfurt, the
preamble to the association’s regulations stated that they were designed to
promote the safety and welfare of the association. The FCC held that such a general, passing reference
to safety usually will not satisfy the safety exception of the OTARD rules. However, the FCC also concluded that, where a
legitimate safety objective is clearly apparent on the face of a restriction, the
safety exception may apply. As a result,
the FCC examined the association’s regulations against this standard.
First,
the FCC rejected the association’s requirement, allegedly on safety grounds,
that, prior to installing an antenna, homeowners must submit a sketch of the
installation and a copy of the antenna manufacturer’s brochure. Such a requirement did not ensure that the
homeowner would install the antenna according to those documents, and was an
unnecessary process for determining whether the member was aware of the association’s
safety guidelines. Moreover, the sketch,
which was only required to show the antenna’s colors, dimensions, and location,
would not demonstrate compliance with safety restrictions, and appeared to be
merely a pretext for imposing aesthetic preferences by way of a prior approval
process. The FCC concluded that the only
way that the association could truly ensure that an antenna installation
satisfied its safety guidelines was to have a qualified person inspect the
installation once it was complete. Next,
the FCC found that the association’s requirement that an antenna withstand 50
mph winds without becoming airborne revealed a clearly-defined, legitimate
safety objective. However, the parties
disputed how the member could demonstrate that his antenna met this
standard. The FCC concluded that the association’s
suggestion that the member could comply simply by giving the association a copy
of the antenna’s installation and specifications brochure would not be a
burdensome method. Nonetheless, because
this option was not in place when the member installed his antenna, the FCC
ruled that the association could not fine him for noncompliance with the
requirement.
Next,
the FCC concluded that the association’s requirement that antennas be grounded
in accordance with the National Electric Code and local codes evidenced a
legitimate safety objective to prevent lightning from travelling into buildings. However, the grounding requirement did not set
forth the specific requirements of those codes.
As such, the FCC could not decide whether the codes contained clearly-defined,
legitimate safety objectives, or whether achieving those objectives was
unreasonably burdensome under the OTARD rules.
Similarly, the association’s regulations required that antennas be
installed in accordance with all ordinances, laws, regulations and industry
standards. However, the FCC held the requirement
unenforceable because it was unnecessarily burdensome to require members to
cull through all ordinances, laws, regulations and industry standards to determine
which ones apply. The FCC next examined
the association’s requirement that exterior wiring for the antenna be hidden
from view in order to prevent such wiring from coming loose and causing bodily
injury or property damage. Although the FCC
found that loose wiring could cause injury or damage, it concluded that a more
appropriate guideline would be to require specific installation procedures to
prevent such an occurrence, such as securing the wiring tightly to the
building. Moreover, the requirement
appeared to be designed merely to satisfy the association’s aesthetic
preferences. Finally, the FCC ruled that
the association’s prohibition against installing antennas on any freestanding
mounts, poles, roofs or chimneys did not have a legitimate safety objective. If ensuring the stability of the antenna was
an actual safety objective, the association could have addressed that objective
with a less burdensome guideline. By
contrast, the association’s requirement that antennas be secured and fastened
to their mounts was designed to prevent antennas from detaching from their
mounts and possibly causing a safety hazard.
Accordingly, the FCC deemed the requirement enforceable under the OTARD
rules’ safety exception.
Location,
Location, Location
Finally,
in a case before the FCC entitled In re
Pinter, an acceptable signal could not be received in the location
preferred by the association in its policy, so the antenna was installed in an
alternate location as permitted by the association’s policy, but not on the
roof as this was specifically discouraged by the policy. When the alternate location did not produce
an acceptable signal, the association expended significant time and expense
negotiating with the member to move the antenna to an area not on his
property. When this solution proved
unsuccessful, the association ultimately agreed to a location on the member’s roof
that was named as a non-preferred location in the policy. Given all this, the FCC concluded that the
only way the member was able to comply with the policy was to seek prior
approval for the installation, a conclusion supported by a statement in a
letter from the association to homeowners that “it is important for members to
involve the [association’s] Architectural Committee in the antenna location process”
to avoid future conflict.” As such, the FCC
held that the policy caused an unreasonable delay on installation and was thus
invalid under the OTARD rules.
Conclusion
Condominium associations that intend to issue, or have
already issued, regulations restricting their members’ installation and use of
antennas should be aware that such regulations may run afoul of the OTARD
rules. To avoid a challenge of those
regulations before the FCC or in court, associations should be careful to
narrowly craft their antenna restrictions to limit them as follows:
·
Prohibit members from installing antennas on,
through or extending over property that is not within the member’s exclusive
use or control.
·
Prohibit antennas, other than television
broadcast antennas, which exceed one meter in diameter or diagonal size.
·
Require notice to the association (but not the
association’s prior approval) of intended antenna installations.
·
If camouflaging is to be required, limit it to
relatively inexpensive measures, and preferably measures that
are already required for similar elements of a unit.
Ø Require
the painting of all antennas, wiring and accessories unless such
painting would void a warranty or cause an unreasonable expense.
·
Specifically enumerate the locations that are
preferred by the association for the placement of antennas, and require
installations to be made in any one of those placements unless doing so
would cause unreasonable delay or expense to the member or fail to provide an
acceptable quality signal.
·
Only require professional installation for
transmitting antennas, and expressly identify the safety objective behind that
requirement.
·
If a central antenna is available to members,
require its use and prohibit individual antennas unless (a) the central
antenna does not allow for reception of particular video programming or fixed
wireless services that the member desires, (b) the signal quality afforded by
the central antenna is not as good as the member could obtain with an
individual antenna, (c) the cost to the member of using the central antenna
exceeds the costs of installation, maintenance and use of an individual
antenna, or (d) utilizing the central antenna instead of an individual antenna
unreasonably delays the reception of video programming or fixed wireless
services.
Ø If any
of the above exceptions are applicable, permit and encourage (but do not
require) the member to make reasonable modifications to the central antenna in
order to obtain the desired services and signal quality, rather than installing
an individual antenna.
Ø If a
central antenna is to be made available to members, provide that, when it is,
and if none of the above exceptions apply, the association may require any or
all individual antennas to be removed, at the association’s expense and with
reimbursement to members of the cost of their antennas.
·
Limit the number of antennas which may be
installed and used by members to the maximum number necessary to receive all of
the video programming and fixed wireless services which they desire, and prohibit
antennas that only provide duplicative reception.
·
For antennas and masts of heights exceeding
twelve feet above the member’s roofline, require a permit from the association
on the grounds of a legitimate safety objective.
·
Set forth in detail any specific limits or
permitting requirements imposed on antennas by applicable law.
·
Mandate an inspection by the association, at its
cost, of all antennas after they are installed.
·
For all antennas installed in a location where
the association has a right or obligation of maintenance or repair, require
members to temporarily remove the antenna if necessary for maintenance or
repair, and to indemnify the association for property damage or personal injury
arising from such installation (so long as the association did not require
installation in that location).
·
Require all contractors that are hired by a member
to install an antenna to have insurance for personal injuries and structural
damage related to the installation.
·
Mandate that antennas and masts meet a specific
reasonable wind tolerance, but provide that this requirement may be met by
providing the association with specifications or installation documentation
that demonstrates such tolerance.
·
Require that all antennas, wiring and
accessories be safely fastened or secured to a building or mount.
Finally,
if a condominium association desires to impose an antenna regulation that would
otherwise violate the OTARD rules, the association must: (1) clearly identify a
legitimate safety objective for the regulation in its preamble or text; (2) expressly
make such regulation applicable to all other devices and fixtures utilized by
members that are comparable in size and weight, pose a similar or greater
safety risk, and to which local regulation would normally apply; and (3) limit
the regulation so that what it requires is no more burdensome to members that
are affected by it than is necessary to achieve the safety objective.
Contact
Stephen
W. Smith
Troff,
Petzke & Ammeson Home Page