SATELLITE DISH INVASION: UPDATE

Two years after the Federal Communications Commission ("FCC") issued its first set of rules concerning satellite dish installations, the FCC substantially clarified and, in some instances, changed those rules in orders issued in September and November of 1998. These new rules have again altered the playing field for condominiums and homeowner associations alike in responding to the growing demand for satellite dish television services.

Before providing an update on these recent rule changes, a brief summary of the FCC's underlying rule, which remains in place, is important. At this time, the FCC's rules apply to a satellite dish or multichannel, multipoint distribution services (MMDS) antenna that measures up to one meter (approximately 39") in diameter and a television antenna (together these are referred to as "satellite dish" in this article). A satellite dish can be installed in any property where the satellite dish user has a direct ownership of the land (such as a lot in a homeowner's association) or an indirect ownership and exclusive use of the land (such as a limited common area in a condominium association). Any association restriction that prohibits the installation of a satellite dish in these areas is no longer enforceable.

Associations can regulate the installation of satellite dishes in the designated areas as long as the association’s rules do not: (1) unreasonably delay or prevent installation, maintenance or use of the satellite dish; (2) unreasonably increase the cost of installation, maintenance of use of the satellite dish; or, (3) preclude the reception of an acceptable quality signal. These three items are where most of the disputes arise when addressing satellite dish questions.

In September, 1998, the FCC issued an Order on Reconsideration that sought to clarify much of the confusion that arose from its original set of rules. In this Order, the FCC made clear that any association rule that requires an owner to pay an application fee or obtain prior approval before installing a dish in designated areas is strictly prohibited. The FCC felt that application fees create an unreasonable increase in cost while prior approvals cause unreasonable delay.

In determining what constitutes an exclusive use area, the FCC also clarified that maintenance responsibilities are irrelevant. If a condominium declaration defines a balcony as a limited common area for a particular owner but the association maintains the balcony, the owner may still place a satellite dish on the balcony area over the association's objections.

The FCC does, however, permit associations to require that an owner sign an indemnification agreement for any damage the owner might cause to property the association is responsible to maintain. The owner can also be required to temporarily relocate a dish anytime the association needs to maintain or repair a given area.

The FCC confirmed that associations can continue to adopt "reasonable" screening requirements for satellite dishes that are placed in or on a person's land or limited common area. Screening requirements must not cost more than the cost of the satellite equipment and services and must not discriminate among comparable devices. For example, an association cannot have one set of screening requirements for satellite dishes and another less expensive standard for air-conditioner units.

The FCC indicated that associations can require residents to paint their satellite dishes to match the building unless the resident establishes that the paint will interfere with the satellite dish signal.

The FCC also determined that associations cannot mandate that owners use professionals to install a satellite dish. If, however, an owner uses an installer, the association can require that the installer carry workers' compensation and liability insurance. Unfortunately, the association cannot take the next logical step of requiring that it receive proof of the contractor's required insurance coverage or be named as an additional insured. The FCC decided that such requirements would result in an unreasonable delay.

One of the last issues the FCC addressed was the matter of central satellite dish antenna services. On this issue, the FCC affirmed the right of an association to once again prohibit the installation of individual satellite dishes in individually owned property or limited common areas if the association provided a central television system that met four requirements.

The association can ban individual satellite dishes if the association's central television system meets the following criteria: 1) it enables the viewer to receive the particular video programming service the viewer desires and could receive with an individual antenna; 2) it provides video reception in the viewer's home using the community antenna of an acceptable quality as good as 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 total cost of installation, maintenance and use of an individual antenna; and, 4) the requirement to use the community antenna in lieu of an individual antenna does not unreasonably delay the viewer’s ability to receive video programming.

Fortunately, there are central satellite systems offered in Northern Ohio through companies such as SkyView and the Dish Network, that generally meet these four criteria. These central services provide a unique opportunity for community associations to expand the services available to residents while also returning control of exterior modifications over to the boards. Associations should carefully look into these options and closely examine any contract before signing.

As stated, the FCC's September, 1998 Order was meant to answer many of the questions that individuals had with respect to its original rules. The FCC's November, 1998 Second Order and Report had a very different purpose. The November Order was primarily focused on addressing the long awaited matter of common area installations.

For over two years, the FCC listened to arguments and considered written briefs as to whether homeowners and condominium owners had the right to install satellite dishes in common areas. On November 25, 1998, the FCC made clear that owners cannot install satellite dishes in any association common area without the association's prior consent.

As such, the association’s board may continue to prohibit all common area satellite dish installations. If an owner cannot receive a satellite signal from his/her limited common area deck, patio or balcony, there is no requirement that the association allow the owner to install the dish in any common area.

The FCC has a penchant for the unexpected, however. In the same November Order, the FCC reversed itself and decided for the first time that tenants living in an association have the same rights as owners. If a condominium tenant wants to install a satellite dish in a limited common area, not even the owner of the unit can prohibit the tenant from doing so. The association must treat the tenant as an owner on these matters and make sure that all tenants receive a copy of the association's satellite dish rules.

The FCC's Order in favor of tenants' rights most directly affects apartment building owners. There is, however, an indirect impact on all community associations as satellite dish providers have become much more aggressive in their advertising and promotional offers. This means more residents are asking for or proceeding with the installation of satellite dishes every day. To insure these installations are done right and within the owner's property or limited common area, it is imperative that associations adopt and promulgate satellite dish installation rules and guidelines.

Satellite dish rules must include guidelines on permissible installation locations, screening and maintenance requirements, height restrictions, and indemnification requirements.

While associations cannot mandate prior approval, residents can be asked to submit a notice to install form. This notice will advise the board of the location of the resident's intended satellite dish installation and method of operation to verify compliance with the association’s rules. The notice should include a waiver of damage and release provision that the resident must sign relieving the association of responsibility for the satellite dish.

If we previously provided your association with proposed satellite dish rules before the September and November, 1998 Orders, you may want to revisit and update those rules in light of the FCC's recent changes. If your association does not have any rules, please contact us to assist in devising rules tailored to your association that are in compliance with the FCC's present regulations.

The FCC's current satellite dish rules runs over 1,200 words long. The above is only a summary of the FCC's rules. There are a few, specific exceptions to some of the FCC's rules as well as additional rules that apply in a handful of cases. As always, should you have any questions or want more specific information on any aspect of the FCC's satellite dish rules, please do not hesitate to contact us.

 

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