As directed by Congress in section 207 of the Telecommunications Act of 1996, the Federal Communications Commission adopted the Over-the-Air Reception Devices Rule concerning governmental and nongovernmental restrictions on viewers' ability to receive video programming signals from direct broadcast satellites ("DBS"), multichannel multipoint distribution (wireless cable) providers ("MMDS"), and television broadcast stations ("TVBS").
The rule is cited as 47 C.F.R. Section 1.4000 and has been in effect since October 14, 1996. It prohibits restrictions that impair the installation, maintenance or use of antennas used to receive video programming. The rule applies to video antennas including direct-to- home satellite dishes that are less than one meter (39.37") in diameter (or of any size in Alaska), TV antennas, and wireless cable antennas. The rule prohibits most 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 applies to viewers who place video antennas on property that they own and that is within their exclusive use or control, including condominium owners and cooperative owners who have an area where they have exclusive use, such as a balcony or patio, in which to install the antenna. The rule applies to townhomes and manufactured homes, as well as to single family homes.
The rule allows local governments, community associations and landlords to enforce restrictions that do not impair, as well as restrictions needed for safety or historic preservation. In addition, under some circumstances, the availability of a central or common antenna can be used by a community association or landlord to restrict the installation of individual antennas. In addition, the rule does not apply to common areas that are owned by a landlord, a community association, or jointly by condominium or cooperative owners. Therefore, restrictions on antennas installed in common areas are enforceable.
On November 20, 1998, the Commission amended the rule so that it will also apply to rental property where the renter has exclusive use, such as a balcony or patio. The effective date of the amended rule is January 22, 1999.
This fact sheet provides general answers to questions that may arise about the implementation of the rule. For further information or a copy of the rule, call the Federal Communications Commission at 888-CALLFCC (toll free) or (202) 418-7096.
Q: What types of antennas are covered by the rule?
A: The rule applies to the following types of video antennas:
(1) A "dish" antenna that is one meter (39.37") or less in diameter (or any size dish if located in Alaska) and is designed to receive direct broadcast satellite service, including direct-to-home satellite service.
(2) An antenna that is one meter or less in diameter or diagonal measurement and is designed to receive video programming services via MMDS (wireless cable). Such antennas may be mounted on "masts" to reach the height needed to establish line-of-sight contact with the transmitter. Masts higher than 12 feet above the roofline may be subject to local permitting requirements for safety purposes.
(3) An antenna that is designed to receive local television broadcast signals. Masts higher than 12 feet above the roofline may be subject to local permitting requirements.
Q: What types of restrictions are prohibited?
A: The rule prohibits restrictions that impair a viewer's ability to install, maintain, or use a video antenna. The rule applies to state or local laws or regulations, including zoning, land-use or building regulations, private covenants, homeowners' association rules, condominium or cooperative association restrictions, lease restrictions, or similar restrictions on property within the exclusive use or control of the antenna user where the user has an ownership or leasehold interest in the property. A restriction impairs if it: 1) unreasonably delays or prevents use of, 2) unreasonably increases the cost of, or 3) precludes a viewer from receiving an acceptable quality signal from, one of these antennas. The rule does not prohibit legitimate safety restrictions or restrictions designed to preserve designated or eligible historic or prehistoric properties, provided the restriction is no more burdensome than necessary to accomplish the safety or preservation purpose.
Q: What types of restrictions unreasonably delay or prevent viewers from using an antenna?
A: A local restriction that prohibits all antennas would prevent viewers from receiving signals, and is prohibited by the Commission's rule. Procedural requirements can also unreasonably delay installation, maintenance or use of an antenna covered by this rule. For example, local regulations that require a person to obtain a permit or approval prior to installation create unreasonable delay and are generally prohibited. Permits or prior approval necessary to serve a legitimate safety or historic preservation purpose may be permissible.
Q: What is an unreasonable expense?
A: Any requirement to pay a fee to the local authority for a permit to be allowed to install an antenna would be unreasonable because such permits are generally prohibited. It may also be unreasonable for a local government, community association or landlord to require a viewer to incur additional costs associated with installation. Things to consider in determining the reasonableness of any costs imposed include: (1) the cost of the equipment and services, and (2) whether there are similar requirements for comparable objects, such as air conditioning units or trash receptacles. For example, restrictions cannot require that relatively unobtrusive DBS antennas be screened by expensive landscaping. 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.
Q: What restrictions prevent a viewer from receiving an acceptable quality signal?
A: For antennas designed to receive analog signals, such as TVBS, a requirement that an antenna be located where reception would be impossible or substantially degraded is prohibited by the rule. However, a regulation requiring that antennas be placed where they are not visible from the street would be permissible if this placement does not prevent reception of an acceptable quality signal or impose unreasonable expense or delay. For example, if installing an antenna in the rear of the house costs significantly more than installation on the side of the house, then such a requirement would be prohibited. If, however, installation in the rear of the house does not impose unreasonable expense or delay or preclude reception of an acceptable quality signal, then the restriction is permissible and the viewer must comply.
The acceptable quality signal standard is different for devices designed to receive digital signals, such as DBS antennas, digital MMDS antennas and digital television ("DTV") antennas. For these antennas to receive an acceptable quality signal, a DBS antenna or other digital reception antenna covered by the rule must be installed where it has an unobstructed, direct view of the satellite or other device from which video programming service is received. Unlike analog antennas, digital antennas, even in the presence of sufficient over-the-air signal strength, will at times provide no picture or sound unless they are placed and oriented for optimal reception.
Q: Are all restrictions prohibited?
A: No, many restrictions are permitted. Clearly-defined, legitimate safety restrictions are permitted even if they impair installation, maintenance or use because they are necessary to protect public safety. 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 safety reason for the restriction must be written in the text, preamble or legislative history of the restriction, or in a document that is readily available to antenna users, so that a person wanting to install an antenna knows what restrictions apply. Safety restrictions cannot discriminate between objects that are comparable in size and weight and pose the same or a similar safety risk as the antenna that is being restricted. The safety restriction also cannot impose a more burdensome requirement than is needed to ensure safety.
Restrictions necessary for historic preservation may also be permitted even if they impair installation, maintenance or use of the antenna. To qualify for this exemption, the property may be any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion on, the National Register of Historic Places. In addition, restrictions necessary for historic preservation must be no more burdensome than necessary to accomplish the historic preservation goal. They must also be imposed and enforced in a non-discriminatory manner, as compared to other modern structures that are comparable in size and weight and to which local regulation would normally apply.
Q: Whose antenna restrictions are prohibited?
A: The rule applies to restrictions imposed by local governments, including zoning, land-use or building regulations; by homeowner, townhome, condominium or cooperative association rules, including deed restrictions, covenants, by-laws and similar restrictions; and by manufactured housing (mobile home) park owners and landlords, including lease restrictions. The rule only applies to restrictions on property where the viewer has an ownership or leasehold interest and exclusive use or control.
Q: If I live in a condominium or an apartment building, does this rule apply to me?
A: The rule applies to viewers who live in a multiple dwelling unit building, such as a condominium or apartment building, if the viewer has an exclusive use area in which to install the antenna. "Exclusive use" means an area of the property that only you, and persons you permit, may enter and use to the exclusion of other residents. For example, your condominium or apartment may include a balcony, terrace, deck or patio that only you can use, and the rule applies to these areas. The rule does not apply to common areas, such as the roof, the hallways, the walkways or the exterior walls of a condominium or apartment building. Restrictions on antennas installed in these common areas are not covered by the Commission's rule.
Q: Does the rule apply to condominiums or apartment buildings if the antenna is installed so that it hangs over or protrudes beyond the balcony railing or patio wall?
A: The rule does not prohibit restrictions on antennas installed beyond the balcony or patio of a condominium or apartment unit if such installation is in, on, or over a common area. An 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 rule. Therefore, in most cases the rule does not apply to a condominium or rental apartment unit unless the antenna is installed wholly within the exclusive use area, such as the balcony or patio.
Q: Does the fact that management or the association has the right to enter these areas mean that the resident does not have exclusive use?
A: No. The fact that the building management or 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. Likewise, if the landlord or 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 Commission's rule. This rule permits persons to install video antennas on property over which the person has either exclusive use or exclusive control. Note, too, that nothing in this rule changes the landlord's or association's right to regulate use of exclusive use areas for other purposes. For example, if the lease prohibits antennas and flags on balconies, only the prohibition of antennas is eliminated by this rule; flags would still be prohibited.
Q: Does the rule apply to residents of rental property?
A: Yes. The Commission recently amended the rule, and the effective date of the amendment was January 22, 1999. Renters may install video antennas within their leasehold, which means inside the dwelling or on outdoor areas that are part of the tenant's rented space and which are under the exclusive use or control of the tenant. Typically, for apartments, these areas include balconies, balcony railings, and terraces. For rented single family homes or manufactured homes which sit on rented property, these areas include the home itself and patios, yards, gardens or other similar areas. If renters do not have access to these outside areas, the tenant may install the video antenna inside the rental unit. Renters are not required to obtain the consent of the landlord prior to installing a video antenna in these areas. The rule does not apply to common areas, such as the roof or the exterior walls of an apartment building.
Q: Are there restrictions that may be placed on residents of rental property?
A: Yes. A restriction necessary to prevent damage to leased property may be reasonable. For example, tenants could be prohibited from drilling holes through exterior walls or through the roof. However, a restriction designed to prevent ordinary wear and tear (e.g., marks, scratches, and minor damage to carpets, walls and draperies) would likely not be reasonable.
In addition, rental property is subject to the same protection and exceptions to the rule as owned property. Thus, a landlord may impose other types of restrictions that do not impair installation, maintenance or use under the rule. The landlord may also impose restrictions necessary for safety or historic preservation.
Q: If I live in a condominium, cooperative, or other type of residence where certain areas have been designated as "common," do these rules apply to me?
A: No, not if the only place you can install an antenna is on a common area, such as a walkway, hallway, community garden, exterior wall or the roof. However, a resident of these types of buildings may install the video antenna on a balcony, deck, patio, or other area where the individual resident has exclusive use.
Q: If my association, building management, landlord, or property owner provides a central antenna for video programming, may I install an individual video antenna?
A: Generally, the availability of a central antenna may allow the association, landlord, property owner, or other management entity to restrict the installation of video antennas by individuals. Restrictions based on the availability of a central antenna will generally be permissible provided that: (1) the viewer receives the particular video programming service the viewer desires and could receive with an individual antenna (e.g., the viewer would be entitled to receive service from a specific DBS provider, not simply a DBS provider selected by the association); (2) the video reception in the viewer's home using the central antenna is as good as, or better than, than the quality the viewer could receive with an individual antenna; (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; 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.
Q: May the association, landlord, building management or property owner restrict the installation of an individual video antenna because a central antenna will be available in the future?
A: It is not the intent of the Commission to deter or unreasonably delay the installation of individual antennas because a central antenna may become available. However, viewers 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 viewer is reimbursed for the value of the antenna. Further, an individual who wants video programming other than that available through the central antenna should not be unreasonably delayed in obtaining the desired programming either through modifications to the central antenna, installation of an additional central antenna, or by using an individual antenna.
Q: I live in a townhome community. Am I covered by the FCC rule?
A: Yes. If you own the whole townhouse, including the walls and the roof and the land under the building, then the rule applies just as it does for a single family home, and you may be able to put the antenna on the roof, the exterior wall, the backyard or any other place that is part of what you own. If the townhouse is a condominium, then the rule applies as it does for any other type of condominium, which means it applies only where you have an exclusive use area. If it is a condominium townhouse, you probably cannot use the roof or the exterior walls unless the condominium association gives you permission.
Q: I live in a condominium with a balcony, but I cannot receive a signal from the satellite because my balcony faces north. Can I use the roof?
A: No. The roof of a condominium is generally a common area, not an area reserved for an individual's exclusive use. If the roof is a common area, you may not use it unless the condominium association gives you permission.
Q: I live in a mobile home that I own but it is located in a park where I rent the lot. Am I covered by the FCC rule?
A: Yes. The rule applies if you install the antenna anywhere on the mobile or manufactured home that is owned by you. The rule also applies to antennas installed on the lot or pad that you rent, as well as to other areas that are under your exclusive use and control. However, the rule does not apply if you want to install the antenna in a common area or other area outside of what you rent.
Q: I want an antenna to receive a distant television signal. Does the rule apply to me?
A: No. The rule does not apply to television antennas used to receive a distant signal.
Q: I want to install an antenna for radio, amateur radio or internet service. Does the rule apply to me?
A: No. The rule only applies to antennas used for video reception. Antennas for AM/FM radio, amateur ("ham") radio or internet are not covered by this rule.
Q: I'm a board member of a homeowners' association, and we want to revise our restrictions so that they will comply with the FCC rule. Do you have guidelines you can send me?
A: We do not have sample guidelines because every community is different. We can send you the rule and the first and second Report and Order and the Order on Reconsideration, which will give you general guidance. Some communities have written restrictions that provide a prioritized list of placement preferences so that residents can see where the association wants them to install the antenna. The residents should comply with the placement preferences provided the preferred placement does not impose unreasonable delay or expense or preclude reception of an acceptable quality signal.
Q: What restrictions are permitted if the antenna must be on a very tall mast to get a signal?
A: If the mast is more than 12 feet above the roof line, the local government, community association or landlord may require you to apply for a permit for safety reasons. If you meet the safety requirements, the permit should be granted.
Q: Does the rule apply to commercial property or only residential property?
A: Nothing in Section 207 or the rule excludes antennas installed on commercial property. The rule applies to property used for commercial purposes in the same way it applies to residential property.
Q: What can a local government, association, or consumer do if there is a dispute over whether a particular restriction is valid?
A: Restrictions that impair installation, maintenance or use of the antennas covered by the rule are preempted (unenforceable) unless they are no more burdensome than necessary for the articulated legitimate safety purpose or for preservation of a designated or eligible historic site or district. If a viewer believes a restriction is preempted, but the local government, community association, or landlord disagrees, either the viewer or the restricting entity may file a Petition for Declaratory Ruling with the FCC or a court of competent jurisdiction. We encourage parties to attempt to resolve disputes prior to filing a petition. Often calling the FCC for information about how the rule works and applies in a particular situation can help to resolve the dispute. If a local government, community association, or landlord acknowledges that its restriction impairs and is preempted under the rule but can demonstrate "highly specialized or unusual" concerns, the restricting entity may apply to the Commission for a waiver of the rule.
Q: What is the procedure for filing a petition or requesting a waiver at the Commission?
A: Petitions for declaratory rulings and waivers must be served on all interested parties. For example, if a homeowners' association files a petition seeking a declaratory ruling that its restriction is not preempted and is seeking to enforce the restriction against a specific viewer, service must be made on that specific viewer. The homeowners' association will not be required to serve all other members of the association, but must provide reasonable, constructive notice of the proceeding to other residents whose interests may foreseeably be affected. This may be accomplished, for example, by placing notices in residents' mailboxes, by placing a notice on a community bulletin board, or by placing the notice in an association newsletter. If a local government seeks a declaratory ruling or a waiver from the Commission, the local government must take steps to afford reasonable, constructive notice to residents in its jurisdiction (e.g., by placing a notice in a local newspaper of general circulation). Finally, if a viewer files a petition or lawsuit challenging a local government's ordinance, an association's restriction, or a landlord's lease, the viewer must serve the local government, association or landlord, as appropriate.
All allegations of fact contained in petitions and related pleadings before the Commission must be supported by an affidavit signed by one or more persons who have actual knowledge of such facts. An original and two copies of all petitions and pleadings should be addressed to the Secretary, Federal Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554, Attention: Cable Services Bureau.
Certificates of service and proof of constructive notice must be provided with a petition. In this regard, the petitioner should provide a copy of the notice and an explanation of where the notice was placed and how many people the notice might reasonably have reached.
Be sure to include the exact language of the restriction in question with the petition. General or hypothetical questions about the application or interpretation of the rule cannot be accepted as petitions.
Q: Can I continue to use my antenna while the petition or waiver request is pending?
A: Yes, unless the restriction being challenged or for which a waiver is sought is necessary for reasons of safety or historic preservation. Otherwise, the restriction cannot be enforced while the petition is pending.
Q: Who is responsible for showing that a restriction is enforceable?
A: When a conflict arises about whether a restriction is valid, the local government, community association, property owner, or management entity that is trying to enforce the restriction has the burden of proving that the restriction is valid. This means that no matter who questions the validity of the restriction, the burden will always be on the entity seeking to enforce the restriction to prove that the restriction is permitted under the rule or that it qualifies for a waiver.
Q: Can I be fined and required to remove my antenna immediately if the Commission determines that a restriction is valid?
A: You will have a minimum of 21 days to comply with an adverse ruling. If you remove your antenna during this period, in most cases you cannot be fined.
Q: Who do I call if my town, community association or landlord is enforcing an invalid restriction?
A: Call the Federal Communications Commission at (888) CALLFCC (888-225-5322), which is a toll-free number, or 202-418-7096, which is not toll-free. Some assistance may also be available from the direct broadcast satellite company, multichannel multipoint distribution service or television broadcast station whose service is desired.
