SATELLITE DISHES IN HOMEOWNERS ASSOCIATIONS

BACKGROUND
On August 6, 1996, the FCC released a rule regarding association restrictions on satellite dishes less than one meter in diameter. These include television broadcast signals, multichannel multipoint distribution services, and the direct broadcast satellite services less than one meter. The rule was issued pursuant to the Federal Telecommunications Act of 1996, in which Congress directed the FCC to make this regulation.

Similarly, California Civil Code Section 1376 provides that an association may put reasonable restrictions on the installation of the dish or antenna if it can be seen from the common area. However, the restrictions must not significantly increase the cost of the system and all related equipment, or significantly impair the performance of the antenna or dish. As will be explained, the California law has become meaningless in many ways because of the federal rule.

The United States was intended to be a federalist model, whereby each state has its own government. However, part of the federal design is that the national government shall be supreme to that of the states, except in matters that are left to the states to control because they are local issues (e.g. police or child custody). In the past, the Supreme Court of the United States has ruled that telecommunications is an area that may be controlled jointly by the states and the national government, although the national government has the final word. Because federal law will preempt any conflicting state law, the FCC's rule is now “the law of the land”, in addition to any non-conflicting California law. For this reason, it is crucial for property managers, Boards of Directors, and legal counsel to understand how the new rules will effect their operations.

THE FCC REGULATION
The federal rule applies only to individuals who own or have exclusive use of the area where they want to install the antenna. Similar to the California statute, it pertains to satellite dishes and antenna that are one meter (39.37") or less in diameter. Under this rule, association restrictions which impair the installation, maintenance, or use of the antenna or dish will no longer be enforceable. The burden of proving that the restriction does not impair will be on the association. A restriction “impairs” if it:
1. unreasonably delays or prevents installation, maintenance or use;
2. unreasonably increases the cost of installation, maintenance or use; or
3. precludes reception of an acceptable quality signal.
An association may continue to make reasonable architectural guidelines which do not impair the homeowners right in any manner referenced above. Permissible restrictions include mandatory painting or screening of antennas, requiring as little minimal visual intrusion as possible, and restrictions designed to eliminate safety issues. An association may also require a homeowner to notify the association before installing the antenna, as long as it does not cause any unreasonable delays. However, an association may not restrict the use of an antenna or dish simply because it can be seen from the common area and it may not restrict the location of the antenna if it adversely affects the signal reception.

APPLICATION OF THE RULE
Now that you have an overview of the legislation, it may helpful to see how it is applied. Lets say a homeowner wants to put an eighteen inch antenna on his patio. First, you need to figure out whether the patio is common area, or perhaps restricted common area for exclusive use by looking in the association's governing documents. Assuming that it is exclusive use common area, the homeowner may install an antenna, but the association may make restrictions on it. The restriction might include painting or screening the antenna. The restriction may also include permissible locations on the balcony, as long as these locations did not adversely affect the reception. In California you will find that many dishes must be pointed southeast to function.
If the same homeowner wanted to put the antenna in the common area, lets say on the wall adjoining the balcony, the association would be able to deny the homeowner's request, or at least for the time being. The same conflict would arise if the homeowner needed to drill a hole in the wall to run the cable to the satellite dish on the patio. If this is a condominium, the wall is common area. This leaves the homeowner with the ability to place the dish on the balcony, but it will not work because he cannot hook up the cable to the dish. However, as discussed below, the fate of satellites in the common area is unknown.
Keep in mind that the rule only pertains to restrictions made by the association. It does not require the association to do anything. Therefore, the association cannot be forced to make antenna signals stronger by keeping interference down (e.g. tree branches).

ANTENNAS IN THE COMMON AREA
It appears that the FCC might be making a ruling in the future concerning restrictions of individual installation of antennas on common areas. So if this is a concern for your association, as it will be for most associations, you may want to be on the lookout for future updates pertaining to this type of regulation. However, the California statute will be the applicable law for the meantime.
In granting permission to place an antenna or dish in the common area, the association should seek advise from counsel to determine the best method for proceeding. Furthermore, with the changes that will be made in the future, it is important for the association to know whether it is complying with the current law.

CONCLUSION
This regulation was designed to bring about a compromise between association control and homeowner autonomy. Only time will tell whether it has effectuated that intent. But, as is readily apparent from the above update, the issues that will arise due to the legislation may be complex. To alleviate the confusion, association boards may want to promulgate rules pertaining to antennas and then circulate the rules to the homeowners. In doing so the association may wish to contact counsel to ensure compliance with the new rule.