In a major ruling today, the FCC declared void local laws prohibiting or restricting the use of small wireless dish antennas. More significantly, the FCC declared that use of small dish antennas and television receiving antennas can not be restricted by "any private covenant, homeowners' association rule or similar restriction on property within the exclusive use or control of the antenna user". Under the federal pre-emption, all homeowners must be allowed to install TV antennas, small satellite dish antennas or multipoint TV distribution systems (microwave "pay TV") antennas.
This is the first time that the FCC (that we know of) has pre-empted private contracts in the matter of antenna regulation.
While the ruling does not apply to Amateur Radio, the precedent set by establishing federal pre-emption over restrictive antenna ordinances that applied to TV reception could have have significant ramifications for the future of Amateur Radio antenna restrictions. The ARRL has noted that nearly all new housing construction in the U.S. is built and sold with restrictive covenants that prohibit any antenna installations. Cities have had a strong interest in prohibiting TV antennas for a simple reason: city government receives a sizeable franchise fee from the cable TV monopoly based as a percent of cable TV revenues. The more cable TV installations a city has, the more each city took in revenue. The FCC's ruling today levels the playing field and creates a competitive market for the over the air reception of TV signals. The FCC made this ruling to serve the interests of consumers who will benefit from the ability to freely choose the best product in a competitive environment.
The ruling applies to all persons who have an ownership interest in property where TV antennas will be placed. If you own your own home, condo or townhouse, then this ruling applies to you and you are granted the right to install a TV receiving antenna. The ruling does not apply to rental tenants, such as those living in apartments, who have no ownership in the property. The FCC indicated, however, that it will continue to study the issue regarding rental property dwellers.
The section that follows is the text of the new rule. The FCC's web site contains the complete Report and Order (338 kbytes, if you wish to download).
(a) Any restriction, including but not limited to any state or local law or regulation, including zoning, land-use, or building 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 installation, maintenance, or use of:
(1) 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 or is located in Alaska; or
(2) an antenna that is designed to receive video programming services via multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, and that is one meter or less in diameter or diagonal measurement; or
(3) an antenna that is designed to receive television broadcast signals, is prohibited, to the extent it so impairs, subject to paragraph (b). For purposes of this rule, a law, regulation or restriction impairs installation, maintenance or use of an antenna 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. No civil, criminal, administrative, or other legal action of any kind shall be taken to enforce any restriction or regulation prohibited by this rule except pursuant to paragraph (c) or (d). No fine or other penalties shall accrue against an antenna user while a proceeding is pending to determine the validity of any restriction.
(b) Any restriction otherwise prohibited by paragraph (a) is permitted if:
(1) it is necessary to accomplish a clearly defined safety objective that is either stated in the text, preamble or legislative history of the restriction or described as applying to that restriction in a document that is readily available to antenna users, and would be applied to the extent practicable in a non-discriminatory manner to other appurtenances, devices, or fixtures that are comparable in size, weight and appearance to these antennas and to which local regulation would normally apply; or
(2) it is necessary to preserve an historic district listed or eligible for listing in the National Register of Historic Places, as set forth in the National Historic Preservation Act of 1966, as amended, 16 U.S.C. ¤ 470a, and imposes no greater restrictions on antennas covered by this rule than are imposed on the installation, maintenance or use of other modern appurtenances, devices or fixtures that are comparable in size, weight, and appearance to these antennas; and
(3) it is no more burdensome to affected antenna users than is necessary to achieve the objectives described above.
(c) Local governments or associations may apply to the Commission for a waiver of this rule under Section 1.3 of the Commission's rules, 47 C.F.R. ¤ 1.3. Waiver requests will be put on public notice. The Commission may grant a waiver upon a showing by the applicant of local concerns of a highly specialized or unusual nature. No petition for waiver shall be considered unless it specifies the restriction at issue. Waivers granted in accordance with this section shall not apply to restrictions amended or enacted after the waiver is granted. Any responsive pleadings must be served on all parties and filed within 30 days after release of a public notice that such petition has been filed. Any replies must be filed within 15 days thereafter.
(d) Parties may petition the Commission for a declaratory ruling under Section 1.2 of the Commission's rules, 47 C.F.R. ¤ 1.2, or a court of competent jurisdiction, to determine whether a particular restriction is permissible or prohibited under this rule. Petitions to the Commission will be put on public notice. Any responsive pleadings must be served on all parties and filed within 30 days after release of a public notice that such petition has been filed. Any replies must be filed within 15 days thereafter.
(e) In any Commission proceeding regarding the scope or interpretation of any provision of this section, the burden of demonstrating that a particular governmental or nongovernmental 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.
(f) All allegations of fact contained in petitions and related pleadings before the Commission must be supported by affidavit of a person or persons with actual knowledge thereof. An original and two copies of all petitions and pleadings should be addressed to the Secretary, Federal Communications Commission, 1919 M St. N.W.; Washington, D.C. 20554. Copies of the petitions and related pleadings will be available for public inspection in the Cable Reference Room in Washington, D.C. Copies will be available for purchase from the Commission's contract copy center, and Commission decisions will be available on the Internet.
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