Lawyers are often asked about an HOA’s ability to restrict or prevent the installation of satellite dishes. An HOA generally has the authority to restrict or prohibit all sorts of things; shouldn’t a satellite dish be included? Given that some believe a satellite dish to be a cumbersome eyesore, it would only seem logical that the HOA could preserve the look and feel of the neighborhood by having such a restriction. However, federal law has a different interpretation.
In October 1996, the Federal Communications Commission (FCC) adopted the Over-the-Air Reception Devices Rule (OTARD rule or rule) concerning governmental and non-governmental restrictions on viewers’ ability to receive video programming signals from direct broadcast satellites (“DBS”), multi-channel multi-point distribution (wireless cable) providers (“MMDS”), and television broadcast stations (“TVBS”).
The OTARD rule prohibits entities, such as community associations, from creating restrictions that impair the installation, maintenance or use of antennas used to receive video programming. The OTARD rule prohibits restrictions that: (1) unreasonably delay or prevent installation, maintenance or use; (2) unreasonably increase the cost of installation, maintenance or use; or (3) preclude reception of an acceptable quality signal. The rule does not prohibit restrictions that merely affect a viewer’s ability to receive signals as long as the restrictions do not impair. Therefore, architectural restrictions that affect but do not impair a viewer’s ability to receive signals are permissible.
Despite this, there are some allowable restrictions against satellite dishes and antennas. If there are legitimate safety concerns, restrictions will be permitted, even if they impair reception, or delay/increase the cost of installation, maintenance, or use of the antenna. An HOA can enforce a safety restriction while the FCC reviews the validity of the restriction. Valid safety restrictions include preventing people from installing antennas on fire escapes, requiring that a person not place an antenna within a certain distance from a power line, following electrical code requirements to properly ground the antenna, prohibiting installation at a location that will obstruct a driver’s view of an intersection or street, and creating installation specifications and requirements that describe proper methods to secure an antenna.
The safety reason for the restriction must be written in a document that is readily available to antenna users prior to installation, so that a person wanting to install an antenna knows what restrictions may apply. The restriction cannot impose a more burdensome requirement than is needed to ensure safety. In addition, the restriction must explain the reason for the safety concern. A safety restriction will not be valid without a specific explanation of its necessity.
HOAs need to be careful when dealing with the use of satellite dishes and should consult with counsel prior to prohibiting or restricting the use of a satellite dish.