THE FCC, HOMEOWNERS' ASSOCIATIONS, AND SATELLITE DISHES
by Christopher J. Beck, ATG Senior Law Clerk

For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, nationwide, and worldwide wire and radio communication service with adequate facilities at reasonable charges ... there is hereby created a commission to be known as the "Federal Communications Commission." 47 USC § 151.

With the increasing popularity of home satellite television, conflicts are bound to arise between prospective dish users, regulations, and restrictive covenants that prohibit satellite dishes. In anticipation of these conflicts, and to facilitate competition between cable television providers and satellite television providers, Congress included a provision in the 1996 Telecommunications Act (Act) that directed the Federal Communications Commission (FCC) to promulgate rules that would regulate the use of direct-to-home satellite dishes. Telecommunications Act of 1996, § 207, PL 104-104, 110 Stat 56, February 8, 1996.

The FCC responded by enacting 47 CFR § 1.4000. Under these new rules, private restrictions against satellite receivers that are less than one meter in diameter are presumptively unreasonable and prohibited, unless the restriction has either a clearly defined and valid safety objective or is necessary to preserve a recognized historic district. Even if the regulation serves one of these two purposes, the restriction may be only as burdensome as is necessary to achieve the allowed purpose. The restriction is prohibited only to the extent that it impairs a person's use of a particular type of receiver. A restriction is said to impair installation, maintenance or use of an antenna if it delays or prevents these actions, unreasonably increases the cost of these actions, or precludes reception of an acceptable quality signal. See 47 CFR § 1.4000. The purpose of this article is to provide a brief look at the law prior to the Act, and then to analyze the impact and possible future effects of the 1996 FCC rule.

Satellite TV - The Early Years

The early years of satellite television typically involved large dishes that were freestanding on a homeowner's property. As might be expected, some homeowners' associations, condominium associations, and local governments sought to impede the installation of satellite dishes in the interest of protecting community aesthetics. Early court rulings primarily dealt with deciding if a satellite dish fell under the definition of an item already prohibited by the regulation or covenant, typically whether a dish could be considered either a "structure" or an "antenna." See Breeling v Churchill, 228 Neb 596, 598, 423 NW2d 469, 471 (1988) (restriction prohibiting all "outside radio, television, Ham broadcasting, or other electronic antenna or aerial" included a satellite dish); Killearn Acres Homeowners Association, Inc. v Keever, 595 So2d 1019, 1022 (1992) (free-standing satellite dish was found to be a "structure" within the meaning of the covenant); Iowa Realty Co, Inc v Jochims, 503 NW2d 385, 387 (1993) (covenant restricting "antennas of any kind" included within their scope a limitation on satellite dishes); Latera v Isle at Mission Bay Homeowners Association, Inc, 655 So2d 144, 145 (1995) (there was no difference between an antenna and a satellite dish for the purpose of interpreting a covenant restricting the use of antennas). Although some courts differed on the amount of deference given to the rule-making body, the restrictions themselves were usually upheld if they had a reasonable relationship to some legitimate end of the rule-making body. Eventually, the rule-makers began to catch up to the technology, and homeowners' associations and local governments began enacting rules that specifically prohibited satellite dishes. As technology continued to advance, satellite dishes became smaller and less expensive, increasing their popularity with consumers. Despite their smaller size, however, dishes were still viewed as a nuisance by many rule-making bodies. It was at this point that Congress and the FCC began to take an interest in addressing this impediment to a consumer's ability to receive information and communications.

The FCC's First Attempt - 47 CFR § 25.104

The FCC's first response to this issue was to enact rule 47 CFR § 25.104, which pre-empts zoning ordinances that restrict satellite dishes of less than one meter in diameter, or two meters if the area is zoned for commercial or industrial uses. The regulations were applicable only to state and local government zoning or land use ordinances; private restrictions against satellite dishes were still enforceable. Ordinances regulating or banning satellite dishes were not prohibited under the rule, but such ordinances would be presumptively unreasonable if the dish was smaller then the prescribed size. This presumption of unreasonableness could be rebutted if the government entity could demonstrate that the restrictions furthered a clearly defined health, safety, or aesthetic purpose without unnecessarily burdening property owners.

The rule was not very effective in its goals; it was often unknown or ignored by local governments. Furthermore, the rule only prohibited ordinances that discriminated on their face between satellite dishes and other types of antennas, so localities could easily circumvent the rule by simply banning all antennas. To make matters worse for the FCC, a court decision struck down a requirement that prospective dish owners exhaust all other available remedies before seeking relief from the FCC, effectively invalidating the rule. Deerfield v Federal Communications Commission, 992 F2d 420 (2nd Cir 1992). Finally, in 1996, the FCC was prompted by Congress to draft a new rule. While Rule 25.104 has been amended and is still enforceable, the new rule enacted by the FCC supersedes the old rule in many instances, and appears to be better equipped to further the interest of increasing the availability of satellite television.

The New Rule - 47 CFR § 1.4000

Section 207 of the Federal Telecommunications Act of 1996 directed the FCC to develop regulations that would pre-empt state and local zoning ordinances, as well as private covenants and homeowners' association rules, and regulate capabilities for receiving television broadcast signals, direct broadcast satellite services, or multi-channel, multi-point distribution services. Telecommunications Act of 1996, § 207, PL 104-104, 110 Stat 56, February 8, 1996. In response to Congress's directive, the FCC enacted 47 CFR § 1.4000. The new regulation expanded the reach of the previous rule and gave the FCC the ability to reach private agreements restricting dish use. The expressed purpose of the federal pre-emption was to give consumers access to a broad range of video programming services and to foster competition among the different types of video programming services. Rule 1.4000 states:

(a)(1) Any restriction, including but not limited to any state or local law or regulation ... or any private covenant, 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 interest in the property, that impairs the maintenance, installation, or use of ...

(i) an antenna that is designed to receive direct broadcast satellite service, including direct-to-home satellite services, that is one meter or less in diameter ...

(ii) an antenna that is designed to receive video programming services via multipoint distribution services ... and is one meter or less in diameter or diagonal measurement ...

(iii) an antenna that is designed to receive television broadcast signals; or

(iv) a mast supporting an antenna described in [the above paragraphs]; is prohibited to the extent it so impairs.

The regulation goes on to define how a regulation or restriction might impair installation. According to the regulation ...

(a)(2) ... 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 of an acceptable quality signal. Id.

Following are the only two situations where restrictions otherwise prohibited by the rule will be allowed: (1) if the restriction is necessary for a clearly defined, legitimate safety objective; 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. Though not meant to be an exhaustive list, the FCC has given some examples of what would be considered legitimate safety concerns. (See Federal Communications Commission Fact Sheet on Placement of Antennas,http://www.fcc.gov/csb/facts/otard.html.) These include requiring that dishes are located at some minimum distance away from power lines or a street, requiring that dishes are adequately bolted and supported, or prohibiting dishes from obstructing a fire escape. The expressed purpose of the safety restriction must be written either in the text preamble or in the legislative history of the restriction. Even if there is a legitimate safety objective or the property qualifies as a historic site, such restrictions still must be no more burdensome to consumers than is necessary to achieve these objectives.Id.

Any fees or cost imposed on a viewer must be reasonable relative to the cost of the equipment. Id. It originally appeared that blanket fees or permits would be prohibited, but recent statements from the FCC suggest that fees or permits prior to installation may be allowed if they are related to a safety or historic objective. In analyzing whether costs such as these are reasonable, the interpreting body will first determine if it is reasonable relative to the cost of the satellite dish system. Id. For example, requiring that satellite dishes be painted to match the exterior of the home may be considered reasonable, while requiring that a dish be hidden by extensive landscaping probably would not be. The regulations must also be non-discriminatory as compared to other modern structures that are of comparable size, weight, and appearance, such as air conditioning units, and that they be no more burdensome than necessary to achieve the rule-making body's goals. Id. The rule does not affect regulations that do not impair the ability to install, maintain or use a satellite dish. For example, a homeowners' association could require that a dish be installed in the back of the house rather than in front of the house, as long as doing so did not impair the use of the satellite. It is important to remember that no matter how modest the cost, the restrictions cannot impair the quality of the signal. The FCC has yet to establish definite standards of how much impairment in quality, if any, is allowed.

Section (f) of the rule states that "[i]n any proceeding regarding the scope or interpretation of any provision of this section, the burden of demonstrating that a particular governmental or non-governmental restriction complies with this section and does not impair the installation, maintenance or use of devices designed for over-the-air reception of video programming services shall be on the party that seeks to impose or maintain the restriction." Thus, the rule-making body carries the burden of proving that its restrictions are reasonable. Consumers seeking to challenge a particular restriction may petition either the FCC or a court of competent jurisdiction for a declaratory ruling on the validity of the restriction. Id.

FCC Clarifications on Rule 1.4000

Since the enactment of the rule, the FCC has responded to some of the questions that have been raised regarding the new rule. There was some confusion about how the rule applied to tenants. The position of the FCC is that, as long as the landlord consents, a tenant has the same rights the landlord would have with his or her own property. Id. There also was some confusion about the extent of use of common areas for a homeowner's placement of a satellite dish, in a condominium for example. The position of the FCC is that common areas, such as roofs, are not covered by the rule, and associations are free to restrict homeowners' access to such things. Id. However, areas that are under the exclusive use and control of the homeowner, such as balconies or patios, are not common areas and can be used for the placement of a dish. Id. One possible saving grace for homeowners' associations comes from a recent FCC ruling that stated associations may install a central television unit as an alternative to allowing individual dishes. However, such a unit is allowable only as an alternative if the association provides the same options and reception to consumers as they would have by personally owning a dish.

While Rule 1.4000 did not explicitly supersede or replace Rule 25.104, the practical effect of the new rule is to obviate the need to resort to the old rule. The old rule is more limited in the types of restrictions that fall under its scope, and it gives the government entity more deference in justifying the restriction. However, because the old rule can cover dishes up to two meters in diameter in certain situations, there may be occasions where consumers may seek to enforce the old rule. However, as the size of dishes decreases, fewer homeowners will need to resort to the old rule for protection.

Conclusion

One of the FCC's express purposes is to provide adequate and reasonably priced consumer access to wire and radio communication services. Rule 1.4000 serves as an effective tool that consumers can utilize to protect these interests. The success of rule 1.4000 is still an open question, as the FCC continues to define the contours of the rule's scope. Since the old rule's enactment in 1986, there seems to be increased awareness, by both consumers and the rule-making bodies, of the issues relating to consumers' rights to install satellite dish technology. Rule 1.4000 was crafted with these interests in mind, and while the integration of all of the rule's requirements is an evolving process, the ultimate result should be an increased number of options for all consumers.

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