– By James R. McCormick, Jr., Esq. (originally published in January 1999)

As predicted in our previous newsletter, the FCC has issued a further Order (FCC 98-273) regarding the installation, maintenance and use of “covered antennas” in common interest developments. To recap, the FCC rule limits many restrictions on the installation, maintenance or use of “covered antennas.” “Covered antennas” include satellite dishes of one meter or less, and antennas designed to receive television broadcast signals. For ease of reference, these devices are collectively referred to as “antennas.”

One question which the FCC previously left open was whether owners could install antennas on common area property. In its most recent ruling, the FCC determined that an owner could NOT force an association to allow him or her to install an antenna on common area property. So the FCC has made clear what was previously suspected: associations may now prohibit installation of antennas on common area property.

While the Order now addresses common area property, the FCC previously determined that owners could install antennas on property they own or over which they have exclusive use or control. This property necessarily includes exclusive use common areas. Therefore, while an association can prohibit installation of antennas on pure common areas, an association may not unreasonably restrict an owner’s right to install, maintain or use an antenna on exclusive use common area property.

The recent Order also addresses the issue of whether the FCC Orders on satellite dishes apply to renters. Previously, a renter was required to obtain the owner’s permission before installing an antenna. This most recent Order specifies that permission from the owner is no longer required. Thus, if a renter wants to install an antenna, he or she can — subject, of course, to reasonable restrictions.

And what are those reasonable restrictions, you might ask? Well, the FCC has sculpted a small set of restrictions which are permissible. These include, but are not necessarily limited to:

1. Restrictions based on demonstrable safety or historic preservation concerns;

2. Requiring that an owner paint or otherwise camouflage the antenna and related equipment;

3. Implementing a permit process for setbacks, if clearly defined;

4. Requiring indemnification agreements when installations occur on individually owned or exclusive use areas; and

5. Requiring that any contractor hired to install antennas possess liability insurance.

We will continue to keep all of you informed about any future FCC orders relating to antennas. In the meantime, if you need any help drafting permissible rules and regulations concerning antennas, please contact our office.