Gerard Lederer and McKenzie Schnell: FCC Continues to Undercut Local Authority on OTARD

The Federal Communications Commission’s over-the-air reception devices (known as OTARD) rules limit local governments’, homeowner associations’ and condominium boards’ oversight authority over certain antennas and satellite dishes for certain size specifications.

In the Primary Purpose Report and Order released on January 7, the FCC expanded its rules to eliminate the primary purpose test used to justify the deployment of an OTARD. In addition, on January 11, the FCC released an Order pertaining to a City of Chicago ordinance that reaffirmed its 2018 Philadelphia Order by striking down Chicago’s satellite placement and removal ordinance.

In doing so, the FCC kept its perfect record in place: It has never ruled to uphold a single ordinance or private restriction brought before it.

The growth of OTARD rules

Adopted in response to Section 207 of the 1996 Telecommunications Act, the OTARD rules prohibit state, local and private restrictions that unreasonably impair the ability of the users of antennas that are one meter or less in diameter to deploy OTARDs on property under their exclusive use or control and in which the user has ownership or leasehold interest.

Specifically, it applies to those restrictions that (1) unreasonably delay or prevent installation, maintenance or use; (2) unreasonably increase the cost of installation, maintenance or use; or (3) preclude reception of an acceptable quality signal.

Restrictions prohibited by the OTARD rule include lease provisions, restrictions imposed by state or local laws or regulations, private covenants, contract provisions and even homeowner’s association rules. There is an exception, however, to any OTARD rule restrictions necessary for safety and historic preservation purposes.

The original OTARD rule provided protections for devices used to receive video programming signals. But in its 2000 Report and Order, the FCC expanded the rule to include customer-end devices capable of not only receiving fixed wireless signals, but also devices that had transmission capability.

Fixed wireless signals are those wireless signals that are used in the provision of voice, video and data services to a fixed location. In 2004, the FCC issued another Report and Order expanding the rules to protect hub and relay antennas so long as they were installed for the primary purpose to serve the user on whose premises the device is deployed.

Until this recent Primary Purpose Order, one could argue that an OTARD had to have as its primary purpose providing service to the user on whose premises the OTARD is deployed. But the FCC now makes clear that – in fact – the primary purpose for the installation no longer matters.

All hubs are covered by the revised rule, so long as they meet the rest of the OTARD requirements and serve a user on the premises.

Chicago had to wait 9 years for its order

Given the growth of the OTARD rules, it is of little surprise that local agency ordinances have had a hard time keeping up. Philadelphia, Chicago and Boston each adopted OTARD ordinances to address the placement of satellite dishes and a requirement that they be removed for public safety purposes when no longer in use.

Each of these ordinances were challenged by the satellite television industry (complaints were not filed by an individual dish owner), and pursuant to the automatic stay rule. Each of the ordinances was put on hold while the FCC reviewed the matter. Philadelphia had to wait seven years for its decision. Chicago had to wait nine for its decision, and Boston is still waiting for the opportunity to even defend its ordinance nine years after its ordinance had been challenged.

Despite the OTARD rules’ specific preservation of local authority to protect public safety, the FCC has consistently ruled against OTARD ordinances that relied on that reservation of authority, which was ultimately the case for Philadelphia and Chicago ordinance reviews.

In light of this, local authorities might want to consider addressing the placement and removal of satellite dishes under general rules on external placements of devices that exist today in their zoning and or building codes rather than adopting OTARD-specific rules. For instance, are there rules currently in place that address exterior lighting and how it must be deployed to minimize visual clutter? Are there other external deployments that have to be removed if they become inoperable? When and why are stealth deployments required for other exterior attachments and are their requirements for certification of installers?

Is this a guaranteed winning strategy? The answer to that is not clear, but the FCC seems at least to encourage local government to look to their general police powers to enforce OTARD removal, as noted in the January Declaratory Order where it states that “[A] city may have other means under its local police power to address out-of-service satellite dishes that present a safety hazard or encroach into the public area.”

Gerard Lavery Lederer is a Partner in Best Best & Krieger’s Municipal Law practice group in the firm’s Washington office. Gerry advocates for the rights of public and private property owners with respect to issues of law and policy arising from federal and state communications legislation and regulation. He also serves as legislative counsel and lead Washington advocate for TeleCommUnity, a collection of local governments dedicated to ensuring respect for local rights in federal legislative and regulatory activity.

McKenzie Schnell is an Associate in Best Best & Krieger’s Municipal Law practice group in the firm’s Washington office. McKenzie advises clients on broadband, cable, telecommunications service and data privacy matters, including regulatory compliance, transactions and litigation. She represents public agencies and small private entities at all stages of their  communications projects from infrastructure matters to network practices.

This Expert Opinion is a version of a legal alert, republished by permission of the authors.

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