Satellite Warfare: the Battle over Dishes & Antennas
by Paul P. Terry, Jr.,Angius & Terry LLP
Almost every Declaration of Covenants, Conditions and Restrictions ("CC&Rs") recorded in the last fifteen to twenty years contains a use restriction which prohibits or substantially restricts the rights of homeowners living within that homeowners association to install antennas and/or satellite dishes identical to (or at least similar to) the following provision:
"No antenna or other device for the transmission or reception of television signals or any other form of electromagnetic radiation, including but not limited to, a dish or other device capable of transmitting or receiving signals for cable, satellite or pay-television systems, shall be erected, used or maintained outdoors above ground within the Property whether attached to a building or otherwise."
Traditionally, most homeowners associations (or common-interest developments) adopt and enforce their respective satellite dish restrictions for one (or both) of the following reasons: (a) to protect property values and community aesthetics and (b) to minimize the risk of serious water leaks and resulting structural damage to property within the Association. Since 1996, however, management companies, homeowners associations and association members across the United States have been struggling with integrating aesthetic and leak concerns with the increasing demands of satellite dish service providers and homeowners for access to direct broadcast television services.
The Why
The Television Industry is big business. According to the National Cable Television Association, the nation's TV market is worth approximately 50.2 billion dollars. Prior to 1996, the cable industry controlled the nation's TV market and the satellite dish (or direct broadcast) providers were limited to rural areas and older communities (i.e., markets that did not contain satellite dish restrictions). The direct broadcast providers were not happy with the monopoly enjoyed by cable providers and began lobbying Congress for laws opening up the competition.
In response to the heavy lobbying by the direct broadcast providers, Congress enacted Section 207 of the Telecommunications Act of 1996. In Section 207, Congress mandated the Federal Communications Commission ("FCC") to enact regulations to ensure that video programming services (i.e., television services) were "easily available and as convenient as possible" for consumers to obtain. As a result of Section 207 and the FCC's subsequent Orders and Rulings, the number of direct broadcast subscribers (i.e., satellite television customers) has skyrocketed to ten percent (10%) of the television market as of January 1999.
According to figures released by the FCC, direct broadcast subscriptions increased by 5 million subscribers to 7.2 million total subscribers between July 1, 1997 and July 1, 1998. The direct broadcast industry anticipates that it will continue to experience "massive growth" over the next decade with over 61 million homes subscribing by the year 2008. Given simple economics, the reality that managers and homeowners associations must adjust to is that satellite dishes, antennas and the industry that markets and sells direct broadcast television services is here to stay.
And the How
In response to Congress' mandate, the FCC promulgated Section 1.4000 of Title 57 of the Code of Federal Regulation in October 1996. Since October 1996, the FCC has issued two subsequent Orders modifying 47 C.F.R. §1.4000 and has handed down numerous case decisions on how §1.4000 impacts the installation of satellite dishes and antennas in homeowners associations. This article will provide an overview of what architectural committees, boards of directors and managers can and cannot do in light of the FCC's orders, rulings and case decisions.
A. Association Common Elements.
On November 20, 1998, the FCC released its second report and order ("2nd Order"). In the 2nd Order, the FCC stated that it did not have a grant of power from Congress under §207 which allowed the FCC to impose a duty on "a property owner to permit his or her neighbor to install [a satellite dish] on the owner's property." Drawing an analogy to use of another's property, the FCC stated that §207 cannot be stretched to require a "community association to relinquish possession of [its] common [area]."
The simple lesson from the FCC's 2nd Order is that associations can continue to prohibit (or regulate) in any manner the erection, installation and/or use of antennas, satellite dishes or other devices capable of transmitting or receiving signals for cable, satellite or pay television systems in (or on) all association common elements. However, even with condominium associations where the majority of each association's complex, including building roofs and exteriors, is common area, an association's existing rules and/or architectural guidelines prohibiting or restricting satellite dishes can still run afoul of the Telecommunications Act. This is because exclusive use common areas, such as balconies and decks, are still subject to the FCC's regulations.
B. Exclusive Use Common Elements & Separately Owned Interests.
Some homeowners associations contain elements known as exclusive use common areas. Under Civil Code Section 1351(i), exclusive use common area is defined as "a portion of the common area designed by the declaration for the exclusive use of one or more, but fewer than all, of the owners of the separate interests [i.e., units or lots] and which is or will be appurtenant to the separate interest or interests." Balconies, patios, decks, windows, exterior doors are commonly designated as exclusive use common areas in many CC&Rs.
Under Civil Code §1351(l)(2) and (f) a separate interest in a condominium project is an airspace "unit" whose boundaries are generally the interior finished surfaces of the walls, ceilings and floors containing the "unit" with the actual walls, floors and ceilings belong to the Association's common area. The separate interest in a planned development is usually (though not always) a "lot" that consists of both the airspace and the walls, ceilings, floors of the residential and the earth below the residential structure.
47 C.F.R. §1.4000(a) prohibits any restriction "that impairs the installation, maintenance or use of" antennas and/or satellite dishes designed to receive television signals in any location within an owner's exclusive use common area and/or separate interest (i.e., unit or lot). What the language of §1.4000(a) means is that no homeowners association can ban or prohibit the installation of either a television antenna or satellite dish on those portions of the complex that are owned by an individual member or are part of the exclusive use common area under a member's control. Nor can any homeowners association enforce any use restriction, architectural requirement and/or rule that (a) unreasonably delays installation, (b) unreasonably increases the cost of installation, maintenance or use and/or (c) precludes reception of an acceptable quality signal, including imposing a pre-approval or permit process and/or an application fee requirement.
While associations cannot prohibit or even impair the installation of a satellite dish or antenna on separate interests or exclusive use common area, associations can (and should strongly consider) establishing guidelines and regulations for the installation, maintenance and use of satellite dishes, antennas and other devices that are designed to receive television signals. These guidelines can prohibit devices over a certain diameter in width and/or a certain height. The association's satellite rules can also establish a notification system, require reasonable camouflage, require owners to pay for damage or harm caused by their installations and impose penalties on violators.
Summary of Association Do's & Don'ts
1. Associations can prohibit all installations on any part of the Association's common area.
2. Associations can still prohibit the installation of all antennas or other devices that are not designed to receive television signals (e.g., radio antennas, citizen band towers and/or parabolic dishes that receive or transmit signals other than television signals).
3. Associations must allow installations on separate interests and exclusive use common areas.
4. Associations can limit the size of any antenna (except TV broadcast antennas) or satellite dish to 39 inches in diameter.
5. Associations can limit the height to no more than 12 feet above the roof line and/or to a height that if the satellite dish were to topple it will be wholly contained within the satellite dish owner's property.
6. Associations can require reasonable camouflage such as painting the installation a color matching the surroundings, landscaping and/or screens as long as long as the costs are reasonable and the Association requires similar camouflage for other installations such as air conditioners or solar panels.
7. Associations can request notification prior to installation, but cannot require an application/ pre-approval process.
8. Associations, especially those where owners may be installing satellite dishes on building exteriors that the association must maintain, can pre-approve certain areas or locations of the association for installation and then recommend those locations as the preferred installation sites in order to limit the association's future maintenance costs.
9. Associations can also apply to the FCC for a waiver from the provisions of §1.4000 if the association is within a historic district and/or for legitimate safety reasons.
10. Associations should not attempt to impose any charges or fees as part of the member's satellite dish installation.
Recommendations
The primary recommendation for all associations is not to ignore the issue of satellite dishes. Demands by association residents for new technology, including direct broadcast television, can only increase. If an association wants to have any control on how direct broadcast television (and other new technologies) are installed within its boundaries, that association should face the issue now.
As a general rule, we recommend that the board of directors consult with the association's legal counsel to ensure that the association's current satellite dish use restrictions in its CC&Rs complies with federal law and grants the board of directors the necessary power to adopt guidelines and regulations concerning those issues that the association can still regulate or control.
Once an association's rule-making power has been confirmed by the association's counsel, we recommend that the association work with its legal counsel to adopt a set of satellite dish rules, including a notification process, that complies with 47 C.F.R. §1.4000 and related FCC caselaw. While California has enacted legislation concerning satellite dishes at Civil Code Section 1376, to the extent that Civil Code Section 1376 conflicts with federal law, federal law (i.e., 47 C.F.R. §1.4000 and FCC caselaw) governs or controls by operation of the Supremacy Clause of the U.S. Constitution.
Next, we recommend that the association verify that its enforcement and/or collection powers are sufficiently broad to allow the association to recover any resulting property damage and other association cost from the responsible satellite dish owner(s) should that owner's installation harm the association. If the association's governing documents do not have broad enforcement and collection powers, the association should consider amending its governing documents to provide the necessary protection/authority.
Finally, managers and associations may wish to locate a reputable direct broadcast provider with experience in satellite dish installations for homeowner associations (called MDUs or multiple dwelling units in the industry) and then negotiate with that distributor for its services. A number of our clients have negotiated exclusive distribution contracts that offers the members of the association cheaper bulk rates on the distributor's direct broadcast television services and also ensures that the distributor's installations at each association complies with that association's aesthetic and leak concerns.
In drafting such agreements, care must be taken to (a) avoid running afoul of the numerous FCC regulations affecting direct broadcast providers; (b) protect the privacy rights of the Association's members; and (c) ensure that the Association's governing documents grant the necessary authority to the Board to enter into such a contractual relationship.
Paul P. Terry, Jr. is a founding partner of ANGIUS & TERRY LLP. ANGIUS & TERRY LLP provides full service legal representation to homeowner associations, including their general counsel needs and construction defect litigation. The firm has offices in Walnut Creek, Sacramento, San Jose Las Vegas and Reno.
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