Satellite Dishes – What Can An Association
Regulate?
By Joseph “Jay” Cusimano, Esq.
In 1996, Congress passed the Telecommunications Act. Section 207 of
the Act required the Federal Communications Commission (“FCC”) to adopt
rules for the installation of satellite dishes in all community
associations. The FCC adopted an initial set of rules in October 1996.
In the years since, the FCC has amended its rules several times and issued
decisions to clarify their meaning and intent. The result is a general
set of guidelines with a number of nuances and exceptions that depend on the
type and configuration of your particular association, whether a
condominium, homeowner association, or a co-op community.
The official name of the FCC’s rule is the Over-the-Air-Reception Device
(“OTARD”) rule. The rule generally provides that a resident has the
right to install a satellite dish on the property the person owns/leases or
that is assigned for the person’s exclusive use, such as a patio or balcony
in a condominium or cooperative property. Communities can still
prohibit installations in or on the common elements or common property.
A person’s right to install a dish in certain areas of the community can
be regulated, within reason, as defined by the FCC. For example, a
board can require that a resident provide a “notice” of his/her intent to
install a dish. But, the board may not mandate the resident wait until
the board approves the installation before proceeding. The FCC has
determined that prior approval would cause an “unreasonable delay.”
A board may adopt installation guidelines that include permissible
installation locations, screening and maintenance requirements, height
restrictions, and indemnification requirements that limit the association’s
potential liability for damage to or from a satellite dish installation.
However, these types of guidelines and requirements must be adopted and put
in place before a resident installs a satellite dish.
The type of community involved, the provisions of the governing
documents, and even the type of buildings in the community, such as
high-rises, clusters, attached townhouses, or free-standing units/homes
determines how far and how restrictive a board can go with these rules.
The FCC has, though, provided some guidance on its regulations in the form
of a Q&A that follows below. (Note: references to “association” below
means any type of housing development, from condominium associations, to
master associations, to cooperatives.) If your community is interested
in or in need of rules applicable to your specific community, please contact
us for additional assistance.
Q: What types of association rules are
prohibited?
A: Association rules that impair a person’s
ability to install, maintain, or use a satellite dish are prohibited.
A restriction impairs if it: (1) unreasonably delays or prevents use; (2)
unreasonably increases the cost; or (3) precludes a person from receiving an
acceptable quality signal from a satellite dish. The FCC does not
prohibit legitimate safety restrictions or restrictions designed to preserve
designated or eligible historic properties, provided the restriction is no
more burdensome than necessary to accomplish the safety or preservation
purpose.
Q: Can an association prohibit all
satellite dishes? Can a satellite dish user be required by an
association to obtain prior approval before installing his/her satellite
dish?
A: The answer is no to both questions.
A restriction that prohibits all satellite dishes is prohibited just as a
restriction that requires a person to obtain a permit or approval prior to
installation on a person’s own property is prohibited. Permits or
prior approval that are necessary to serve a legitimate safety or historic
preservation purpose may be permissible. Although a simple
notification process is permissible, such a process cannot be used as an
approval requirement and may not delay or increase the cost of installation.
The burden is on the association to show that a notification process does
not violate the rule.
Q: Can a satellite dish be installed in/on
common elements?
A: No, a satellite dish cannot be installed
in common elements without board permission. The FCC’s rule does not
require an association to allow the installation of a satellite dish on or
in a common element, such as a walkway, hallway, community garden, common
element exterior wall or roof. Board approval is still required to
install a satellite dish in such areas.
Drilling through a common element exterior wall (as an example, to run the cable from the patio into a condominium unit) is generally not permitted because the exterior wall is typically a condominium common element. A satellite dish owner should check with the retailer or installer for advice on how to install the satellite dish without drilling a hole. Alternatively, the board may grant permission to drill such a hole
Q: Can the association require a satellite
dish installation fee?
A: No. Any requirement to pay a fee
to the association for a permit to install a satellite dish is prohibited.
Q: Is the association allowed to make any
satellite dish rules?
A: Clearly defined, legitimate safety rules
are permitted. Examples of valid safety rules include fire code
compliance that prevents people from installing satellite dishes on fire
escapes; rules requiring that a person not place a satellite dish within a
certain distance from a power line; and installation rules that describe the
proper method to secure a satellite dish. The safety reason for the
rule must be written in the text of the rule.
Q: Can the association require that a
satellite dish be painted?
A: A requirement to paint a satellite dish
so that it blends into the association scheme would likely be acceptable,
provided it will not interfere with reception or impose unreasonable costs.
Q: If a resident lives in a condominium
with a balcony but cannot receive a signal from the satellite because
his/her balcony faces the wrong direction, can the dish be installed on the
roof?
A: No. The roof of a condominium is
generally a common element, not a limited common element that is reserved
for an individual’s exclusive use. If the roof is a common element, a
resident may not use the roof unless the board approves of such
installation. The board may, but is not obligated to, provide a place
to install a satellite dish if a resident does not have a limited common
element or other exclusive use area facing the correct direction for
satellite dish reception.
Q: May a condominium resident install a
satellite dish if it hangs over or protrudes beyond the balcony railing or
patio?
A: No. The FCC’s rule does not permit
satellite dishes to be installed beyond the balcony or patio of a
condominium unit if such installation is then in, on, or over a common
element. Therefore, a satellite dish must be installed entirely within
the limited common element or exclusive use area, such as the balcony or
patio. The only exception is for a satellite dish attached to the
inside or top of a railing, where a part of the dish may slightly extend
beyond the balcony.
Q: Can an association rule limit the number
of satellite dishes that may be installed?
A: No. An association rule limiting
residents to only one satellite dish is not permissible if more than one
satellite dish is necessary to receive the desired services.
Q: If the association provides a central
satellite dish, may an owner install an individual satellite dish?
A: Generally, no. The availability of
a central satellite dish allows the association to restrict the installation
of individual satellite dishes. Restrictions based on the availability
of a central satellite dish are generally permissible provided that: (1) the
person receives the particular video programming that the person desires and
could receive with an individual satellite dish; (2) the signal quality of
transmission to and from the person’s home using the central satellite dish
is as good as, or better than, the quality the person could receive with an
individual satellite dish; and, (3) the costs associated with the use of the
central satellite dish are not greater than the costs of installation,
maintenance, and use of an individual satellite dish.
Q: Must a homeowners’ association, cluster
association, or other non-condominium community permit satellite dish
installations?
A: Yes. If the owner owns or has the
exclusive use of the whole house or lot, including the walls and the roof,
the FCC permits satellite dishes just as in a single family home. The
owner is able to put a satellite dish on his/her roof, the exterior walls,
the backyard, or any other place that is part of what he/she owns.
This is true even if the association maintains the roof or other exterior
areas of the home or lot.
Q: Can a non-condominium homeowners’
association establish rules for satellite dish locations?
A: Possibly. A rule that satellite
dishes can be located where reception would be impossible or substantially
degraded is prohibited. However, a rule that satellite dishes 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 a
satellite dish in the rear of the house costs significantly more than
installation on the side of the house, then such a rule would be prohibited.
If, however, installation in the rear of the house does not impose
unreasonable expense or preclude reception of an acceptable quality signal,
then the rule is permissible and the dish owner must comply.
Q: Are sample rules or guidelines available
for an association to review and adopt?
A: No. The FCC does not provide
sample guidelines for satellite dish installations because every community
is different. Guidelines must be prepared based on each community’s
governing documents, the type of buildings involved, the plat or drawings
for the community, and even the layout of the property itself. Some
associations have written restrictions that provide a prioritized list of
placement preferences so that residents can see where the association wants
them to install the satellite dish. The residents must comply with the
placement preferences provided it does not impose unreasonable delay or
expense or prevent reception of an acceptable quality signal.