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The Extra-Terrestrials have landed!

Published January 18, 2003 as
Proliferation of satellite dishes can pose a problem for board

With the broad expansion of satellite based television reception, you would conclude that after driving around in certain neighborhoods that we are in contact with other planets or star systems.

The proliferation of dishes causes special problems for community associations from standards of installation to guidelines for prohibition. All of this controversy can be dropped on the doorstep of the Federal Communications Commission, which was directed by the United States Congress under Section 207 of the Telecommunication Act of 1996 to adopt certain over-the-air reception device rules.

Based upon the initial wording of this law, it did not take “rocket science” to figure out who promoted it. It certainly was not the condominium and townhome association lobby (if there actually was such an entity!).

Associations need to be particularly cautious in drafting rules and regulations governing satellite dishes and antennas so as to not run into conflict with federal law. Further, most declarations and bylaws written before 1996 allowed boards to adopt rules prohibiting these devices and now many of these covenants cannot be legally enforced.

First, the rule: Since October 14, 1996, the law prohibits restriction on the installation, maintenance or use of antennas used to receive video programming that are less than one meter in diameter (39.97”) or antennas less than 12 feet above the roof line. The rule further provides that restrictions cannot be imposed that unreasonably delay or prevent installation; unreasonably increase costs or precludes reception of an acceptable quality signal.

Initially, this creates a serious problem for homeowners’ associations and many townhome associations. The exception to the rule is “exclusive use or control.” In a townhome or homeowners association where the owner or even a tenant has “exclusive control,” the right of the owner to install a dish or antenna within the size limitations is unimpaired.

Where it gets tricky, however, is in condominiums, co-ops and certain townhome associations where the association has building maintenance responsibility and owners have limited responsibility, as well. In these scenarios, if the association maintains and exercises architectural control over a roof, balcony, building exterior, etc., then the board can adopt rules to limit or prohibit such installations. Essentially, the rule becomes, WHOEVER MAINTAINS IT, CONTROLS IT!

This presents a double-edge sword for condominium associations who have deemed balconies and patios as limited common elements and require owners to pay for the cost of maintenance. By relinquishing the financial obligation to maintain them, the association has also waived its right to control installation of a dish or antenna on these amenities.

As always, for every law there are far more exceptions. Here are some of them:

The rule covers over the air TV reception, wireless telephone or high-speed internet access. It does not allow for AM/FM reception, HAM, CB or DARS signals. These can still be restricted.
Rules requiring a person to seek approval for a legally permitted installation might be viewed as unreasonably delaying installation. The exception is when the approval process serves a legitimate safety or historic preservation purpose. (Thus, the purpose for application procedures must be stated in the rules, i.e., safety, etc.)
The requirement that an owner pay fees is deemed unreasonable. Requiring extensive landscaping and screening would not be legal although requiring the painting of an antenna to blend into a background might be acceptable, if it did not interfere with reception.
The fact that the board or management may enter an area for inspection or repair does not necessarily mean the owner does not have exclusive use and control. The rule giving owners their rights states if the person has either exclusive use or exclusive control.
Regardless of all of the above, areas deemed to be “common” do not permit owners access for installation of a dish or antenna.
Availability of a central antenna may allow the association to restrict individual installations. This solves one dilemma for multi-unit buildings so long as the owner can receive the same programming. The problem arises when an owner wants a foreign language transmission not available through the central provider.
Even if an owner has a right to install a dish on a balcony, if it does not fact the correct direction, it does not give the owner an absolute right to have a functioning dish installed on common areas.

Another problem which forces a board to proceed with caution when adopting rules is if a complaint is filed with the FCC, the association has the burden or proof to show that their rule(s) is valid. Thus, it is important to have clear rules, prepared and/or reviewed by legal counsel, that comply with all of the provisions of the FCC guidelines, as well as any exceptions. If a violation is found to exist by the FCC, the association will have 21 days to bring the rules into compliance before a fine or penalty is imposed, but the association could still wind up with a large legal bill defending its position, regardless. That is why it is best to have the correct rules in place right at the beginning.