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What Types of Antennas Are Covered Under the OTARD Rules?
The following antennas or dishes are covered by these rules:
- A “dish” antenna one meter (39.37 inches) or less in diameter (or any size dish if located in Alaska), designed to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite.
- An antenna that is one meter or less in diameter and is designed to receive video programming services via broadband radio service (wireless cable), or to receive or transmit fixed wireless signals other than via satellite.
- An antenna that is designed to receive local television broadcast signals.
Antennas used for AM/FM radio, amateur (“ham”) radio, CB radio, Digital Audio Radio Services (“DARS”), or antennas used as part of a hub to relay signals among multiple locations are not covered by these rules.
What Types of Properties Are Covered?
Under the OTARD rules, an owner or a tenant has the right to install an antenna (that meets size limitations) on property that he owns or over which he has exclusive use or control. This includes single family homes, condominiums, cooperatives, townhomes and manufactured homes. In the case of condominiums, cooperatives and rental properties, the rules apply to “exclusive use” areas, like terraces, balconies or patios. “Exclusive use” refers to an area of the property that only the renter and people allowed by the renter may enter and use. If the area is shared with others or accessible without the renter’s permission, it is not considered to be an exclusive use area.
OTARD rules do not apply to common areas that are owned by a landlord, a community association or jointly by condominium owners. These common areas may include the roof or exterior walls of a multiple dwelling unit. Under certain conditions, if a common antenna is available for use by residents, then the community association or landlord may prohibit the installation of an individually-owned antenna or satellite dish, provided the signal quality from the central antenna is as good as the signal quality from an individually-owned antenna or dish, and the costs of using the central antenna are no greater than the costs of an individually-owned antenna or dish.
What kinds of restrictions are prohibited?
Restrictions that prevent or delay installation, maintenance or use of antennas covered by the rule are prohibited. For example, in most cases, requirements to get approval before installing an antenna are prohibited.
What kinds of restrictions are permitted?
Restrictions necessary to prevent damage to leased property are permissible, as long as the restrictions are reasonable. For example, a lease restriction that forbids tenants from damaging the balcony floor when installing an antenna is likely to be permissible.
An association, landlord or local government may impose certain restrictions when safety is a concern or where a historic site is involved. An example of a permissible safety restriction would be requiring that an antenna is securely fastened down so that it will not be blown loose. Safety restrictions must be narrowly written so that they are no more burdensome than necessary to address a legitimate safety purpose.
If there is a conflict about a restriction’s validity, the association, landlord or local government trying to enforce the restriction must prove it is valid. This means that no matter who questions the validity of the restriction, the person or entity trying to enforce the restriction must prove that it is legitimate.
Filing a Petition about an Antenna Restriction
If you believe an antenna restriction is invalid, first try to resolve it with the restricting person or entity (the association, landlord or local government). If you are unable to resolve it directly, you can file a Petition for Declaratory Ruling with the FCC or a court of competent jurisdiction.
There is no particular form used for filing a petition with the FCC. Your petition, at a minimum, should include:
- a description of the facts, including the restriction you’re disputing;
- contact information for all parties involved in the dispute;
- copies or the exact language of the restriction; and
- any relevant correspondence.
You must include a “proof of service” with your petition. A proof of service is a statement indicating that on the same day that you filed your petition with the FCC, you provided a copy of the petition and any attachments to the person or entity trying to enforce the antenna restriction. The proof of service should indicate the name and address of the parties served, the date they were served, and the method of service, such as regular mail, personal delivery service or certified mail.
The FCC OTARD rule is found at 47 C.F.R. § 1.4000. The most current version of the rule is below:
47 C.F.R. § 1.4000 Restrictions impairing reception of television broadcast signals, direct broadcast satellite services or multichannel multipoint distribution services.
(a)(1) Any restriction, including but not limited to any state or local law or regulation, including zoning, land-use, or building regulations, or any private covenant, contract provision, lease provision, homeowners’ association rule or similar restriction, on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property that impairs the installation, maintenance, or use of:
(i) An antenna that is:
(A) Used to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite, and
(B) One meter or less in diameter or is located in Alaska;
(ii) An antenna that is:
(A) Used to receive video programming services via multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, or to receive or transmit fixed wireless signals other than via satellite, and
(B) That is one meter or less in diameter or diagonal measurement;
(iii) An antenna that is used to receive television broadcast signals; or
(iv) A mast supporting an antenna described in paragraphs (a)(1)(i), (a)(1)(ii), or (a)(1)(iii) of this section; is prohibited to the extent it so impairs, subject to paragraph (b) of this section.
(a)(2) For purposes of this section, “fixed wireless signals” means any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location. Fixed wireless signals do not include, among other things, AM radio, FM radio, amateur (“HAM”) radio, Citizen’s Band (CB) radio, and Digital Audio Radio Service (DARS) signals.
(a)(3) For purposes of this section, a law, regulation, or restriction impairs installation, maintenance, or use of an antenna if it:
(i) Unreasonably delays or prevents installation, maintenance, or use;
(ii) Unreasonably increases the cost of installation, maintenance, or use; or
(iii) Precludes reception or transmission of an acceptable quality signal.
(a)(4) Any fee or cost imposed on a user by a rule, law, regulation or restriction must be reasonable in light of the cost of the equipment or services and the rule, law, regulation or restriction’s treatment of comparable devices. No civil, criminal, administrative, or other legal action of any kind shall be taken to enforce any restriction or regulation prohibited by this section except pursuant to paragraph (d) or (e) of this section. In addition, except with respect to restrictions pertaining to safety and historic preservation as described in paragraph (b) of this section, if a proceeding is initiated pursuant to paragraph (d) or (e) of this section, the entity seeking to enforce the antenna restrictions in question must suspend all enforcement efforts pending completion of review. No attorney’s fees shall be collected or assessed and no fine or other penalties shall accrue against an antenna user while a proceeding is pending to determine the validity of any restriction. If a ruling is issued adverse to a user, the user shall be granted at least a 21-day grace period in which to comply with the adverse ruling; and neither a fine nor a penalty may be collected from the user if the user complies with the adverse ruling during this grace period, unless the proponent of the restriction demonstrates, in the same proceeding which resulted in the adverse ruling, that the user’s claim in the proceeding was frivolous.
(b) Any restriction otherwise prohibited by paragraph (a) of this section is permitted if:
(1) It is necessary to accomplish a clearly defined, legitimate safety objective that is either stated in the text, preamble, or legislative history of the restriction or described as applying to that restriction in a document that is readily available to antenna users, and would be applied to the extent practicable in a non-discriminatory manner to other appurtenances, devices, or fixtures that are comparable in size and weight and pose a similar or greater safety risk as these antennas and to which local regulation would normally apply; or
(2) It is necessary to preserve a prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion on, the National Register of Historic Places, as set forth in the National Historic Preservation Act of 1966, as amended, 16 U.S.C. § 470, and imposes no greater restrictions on antennas covered by this rule than are imposed on the installation, maintenance, or use of other modern appurtenances, devices, or fixtures that are comparable in size, weight, and appearance to these antennas; and
(3) It is no more burdensome to affected antenna users than is necessary to achieve the objectives described in paragraphs (b)(1) or (b)(2) of this section.
(c) In the case of an antenna that is used to transmit fixed wireless signals, the provisions of this section shall apply only if a label is affixed to the antenna that:
(1) Provides adequate notice regarding potential radiofrequency safety hazards, e.g., information regarding the safe minimum separation distance required between users and transceiver antennas; and
(2) References the applicable FCC-adopted limits for radiofrequency exposure specified in § 1.1310 of this chapter.
(d) Local governments or associations may apply to the Commission for a waiver of this section under § 1.3 of this chapter. Waiver requests must comply with the procedures in paragraphs (f) and (h) of this section and will be put on public notice. The Commission may grant a waiver upon a showing by the applicant of local concerns of a highly specialized or unusual nature. No petition for waiver shall be considered unless it specifies the restriction at issue. Waivers granted in accordance with this section shall not apply to restrictions amended or enacted after the waiver is granted. Any responsive pleadings must be served on all parties and filed within 30 days after release of a public notice that such petition has been filed. Any replies must be filed within 15 days thereafter.
(e) Parties may petition the Commission for a declaratory ruling under § 1.2 of this chapter, or a court of competent jurisdiction, to determine whether a particular restriction is permissible or prohibited under this section. Petitions to the Commission must comply with the procedures in paragraphs (f) and (h) of this section and will be put on public notice. Any responsive pleadings in a Commission proceeding must be served on all parties and filed within 30 days after release of a public notice that such petition has been filed. Any replies in a Commission proceeding must be served on all parties and filed within 15 days thereafter.
(f) Copies of petitions for declaratory rulings and waivers must be served on interested parties, including parties against whom the petitioner seeks to enforce the restriction or parties whose restrictions the petitioner seeks to prohibit. A certificate of service stating on whom the petition was served must be filed with the petition. In addition, in a Commission proceeding brought by an association or a local government, constructive notice of the proceeding must be given to members of the association or to the citizens under the local government’s jurisdiction. In a court proceeding brought by an association, an association must give constructive notice of the proceeding to its members. Where constructive notice is required, the petitioner or plaintiff must file with the Commission or the court overseeing the proceeding a copy of the constructive notice with a statement explaining where the notice was placed and why such placement was reasonable.
(g) In any proceeding regarding the scope or interpretation of any provision of this section, the burden of demonstrating that a particular governmental or nongovernmental restriction complies with this section and does not impair the installation, maintenance, or use of devices used for over-the-air reception of video programming services or devices used to receive or transmit fixed wireless signals shall be on the party that seeks to impose or maintain the restriction.