OTARD Stuff

OTARD = Over The Air Reception Devices (i.e. Antennas and dishes).

Overview

Several years back (1996), Congress passed a law designed to (among other things) faciliate competition among the various means of distributing video programming. Over the past few years, the FCC has generated rules, opinions, and orders to implement the law. One of the things they did was formulate a set of rules that essentially preempt laws and private restrictions that prohibit certain types of antennas, and to provide guaranteed access to competitive providers.

Naturally, there is a lot of screaming and yelling from all sides on this. The folks who want to distribute stuff by satellite or wireless (i.e. DirecTV, etc.) don't want restrictions on people installing antennas. Homeowner's associations and the folks who own apartment buildings don't want people putting up antennas because of aesthetic concerns. The companies that already have a wire into apartments, condos and homes also would prefer that the HOAs ban antennas. Finally, companies who would like to put in new wires don't want HOAs and building owners signing exclusive contracts with someone else.

So far, the FCC has been pretty firm in opening access and striking down restrictions of various kinds. They've made the regulatory hurdles pretty high to create a restriction, and placed the burden of proving that the restriction is reasonable on the people wanting the restriction.

At first, the big activity was in the area of small dishes for DirecTV, EchoStar and companies like that. Many, many condos and homeowner associations have blanket antenna prohibition rules, most stemming from the big "C-band" dish days, and the days of large external broadcast antennas. Abetted, to a certain extent, by the cable TV providers, these rules were used to prevent the installation (or at least, make really tedious and inconvenient) of the competing small dishes.

Now, though, the activity is heating up in the area of providing wireless services. The existing rules cover only "receiving devices", and don't make any provision for transmitting (some HOA's have rules against transmitting, although the enforceability might be questionable. Cell phones transmit, for instance, as do garage door remotes, cordless phones, and so forth.). They also limit the preemption to devices designed to receive (small dish satellite, broadcast TV, etc.) what are essentially broadcast services.

However, the wireless networking folks are starting to press for an extension to the rules to include their products, which provide internet connectivity, ordinary telephone service, as well as the more traditional TV and broadcast services. They feel that wireless schemes are the solution to the "last mile problem", referring to the fact that the difficult part of getting a new service started is making the connection the "last mile" from centralized distribution point to the user. The telephone company and cable TV companies have made a substantial investment in physical plant to connect that last mile, and, understandably, they aren't too wild about seeing alternative schemes.

From the Homeowner Association point of view, I suppose that the addition of the wireless (transmit/receive) to the rules won't make much difference. The existing receive only rules already force an HOA to allow antennas less than a meter in size, so the aesthetics impact is negligble. Any practical wireless scheme isn't going to have an interference problem, so the practical impact of allowing transmitting is negligible. There is a potential aesthetic issue with folks wanting to put up multiple antennas (one for Ku-band satellite, another for a wireless internet, and yet others for other providers), but the FCC has already ruled in a "receive only" case that multiple antenna installations can't be prohibited.

If HDTV ever catches on, I suspect we'll see another push to clarify the rules, although since they are reception devices, they are already covered. (see the NAB filing in Philip Wojcikiewicz's case CSR-6030-0)

FCC Fact Sheet on Placement of Antennas http://www.fcc.gov/mb/facts/otard.html There are a bunch of links to relevant cases at the bottom of the revised (May 2001) fact sheet. Some of them are below.

Competitive Networks Report and Order, FCC 00-366, released October 25, 2000 http://www.fcc.gov/Bureaus/Wireless/Orders/2000/fcc00366.pdf (see page 45, for information on amateur radio antennas)

DA-00-2759 (12 Dec 2000.. brand new) Irvin & Barbara Guterman - Dismissed Petition for Declaratory Ruling seeking determination concerning OTARD rule..http://ftp.fcc.gov/Bureaus/Cable/Orders/2000/da002759.txt - The Gutermans were seeking a determination about whether the CC&Rs for their tract were consistent with the OTARD rules. Since the Gutermans didn't send a sworn affidavit with the petition (even after their attorney was notified by the FCC, twice), the FCC dismissed the petition.

http://ftp.fcc.gov/Bureaus/Cable/Orders/1997/da971554.txt Meade KS ordinance (and legal maneuvering) ruled against. Lots of detail about what the FCC considers unreasonable: prior permission, vague rules, $5 fees. A lot of this was revisited in the Second Order and Reconsideration when the FCC clarified their interpretation of all the rules.

http://www.commlaw.com/pepper/Memos/MMDS/overair.html Some analysis from a law firm, Pepper and Corazzini, on the order on reconsideration

NAB's filing in support of a declaratory ruling allowing user to install a HDTV antenna https://www.nab.org/newsroom/pressrel/filings/OTARD13103.pdf
http://www.nab.org/newsroom/PressRel/Filings/OTARDReplies32503.pdf

 

DA 02-3609, 31 Dec 2002
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-02-3609A1.pdf
Petition seeking declaratory ruling that the homeowner association rules of the Woodmere Townhome association of Darien, Illinois are preempted by the Commission's Over-the-Air Reception devices rule

 

http://cctr.umkc.edu/dept/dirt/dd99/DD991025.htm Fascinating analysis of a wild case where somebody put up 5 masts 30 feet high, with 3 dishes, a bunch of antennas, etc. The HOA, not surprisingly, balked. Oddly, though, the HOA's rules weren't written all that well, and the FCC zapped them all. The author of the analysis is pro HOA, and blasts the FCC somewhat, but his analysis is valid, even if I disagree with some of his opinions.

http://www.fcc.gov/Bureaus/Cable/Orders/1999/da992132.txt (DA 99-2132) The case referenced above, Stanley and Vera Holliday..

http://www.fcc.gov/Bureaus/Cable/Orders/1998/da980188.txt (DA 98 -188) Petitioner Jason Peterson ("Petitioner") filed a Petition for Declaratory Ruling ("Petition") seeking a determination that the Declaration of Party Wall Right, Covenants, Conditions, Restrictions and Easements for Chesapeake Commons ("Chesapeake Restrictions") applicable to externally installed over- the-air video programming reception antennas are prohibited by 47 C.F.R.  1.4000, the Commission's Over-the-Air Reception Devices Rule ("Rule"). The Petition is unopposed. For the reasons discussed below, we find that the Chesapeake Restrictions contravene the Rule and are prohibited.

http://www.fcc.gov/Bureaus/Cable/Orders/1997/da972305.txt DA-97-2305 This case is about installing a DBS small dish on a balcony. On April 1, 1997, Petitioner Victor Frankfurt ("Petitioner") filed a Petition for Declaratory Ruling ("Petition") seeking a determination that the covenants, conditions, and restrictions applicable to externally mounted over-the-air video programming reception antennas of New Century Town Townhouse Association No. 2 ("New Century") are prohibited by 47 C.F.R.  1.4000, the Commission's Over-the-Air Reception Devices Rule ("Rule").

Declaratory Ruling, Victor Frankfurt, DA 01-0153, released February 7, 2001: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-153A1.pdf - More trials and tribulations for Victor Frankfurt and New Century.. New Century redoes its rules to try and make them appear to be safety related, but the FCC carefully examines the new rules and finds that most are aesthetic concerns (concealing wires and cables), or unnecessarily burdensome

New (Oct 2000)

From: http://www.fcc.gov/Bureaus/Wireless/News_Releases/2000/nrwl0038.html

...Fourth, the FCC extended to antennas that receive and transmit telecommunications and other fixed wireless signals its existing prohibition of restrictions that impair the installation, maintenance or use of certain video antennas 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. .....

Action by the Commission on October 12, 2000 by First Report and Order and Further Notice of Proposed Rulemaking in WT Docket No. 99-217, Fifth Report and Order and Memorandum Opinion and Order in CC Docket No. 96-98, and Fourth Report and Order and Memorandum Opinion and Order in CC Docket No. 88- 57 (FCC 00-366). Chairman Kennard, Commissioners Ness, Powell and Tristani with Commissioner Futchtgott-Roth dissenting and issuing a separate statement.

Petition for Rulemaking to Amend Section 1.4000 of the Commission's Rules to Preempt Restrictions on Subscriber Premises Reception or Transmission Antennas Designed to Provide Fixed Wireless Services, Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 96-98

 

 

Some older (1998) writeups are listed (and linked) below. The fact sheet above has more recent data, since the FCC made some rulings in late 1998 and early 1999 clarifying aspects of the OTARD rule.

California Association of Homeowner's Associations writeup on State and Federal Laws Concerning Satellite Dishes and Homeowners Associations. http://www.calassoc-hoa.com/news/satdish.htm

A writeup from an attorney (?) at Peters and Freedman, called "Dishes, Dishes Everywhere and Not a Bite to Eat!" http://www.hoalaw.com/newsltr/v4i4.htm

Another writeup by Brad Ferguson that he did for his homeowner's association. http://www.gate.net/~donstone/brad.html (This link is dead...)


Copyright 2000, James Lux - revised 29 July 2003
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