FCC Asks for Comments on Whether OTARD Rules Should Limit Local Zoning Authority Restrictions on TV Antennas and Other Reception Devices in Common Areas

by Davis Wright Tremaine LLP
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The over-the-air reception of television stations has taken on heightened awareness in recent years.  In the regulatory world, this prominence comes from the FCC's consideration of taking back some of the broadcast spectrum for use by wireless broadband based at least partially on the Commission's belief that broadcasters are not using that spectrum efficiently as many viewers,over the last few decades, receive their TV programming from satellite and cable providers.  At the same time, there have been more articles in the press and anecdotal stories about the new importance of over-the-air reception as people "cut the cord', getting their video programming from some combination of over-the-air TV and the Internet.  Regardless of the truth of either perception, since the conversion to digital, issues about TV antennas have become more important as, in many places, an outdoor television antenna is necessary (or preferable) for decent over-the-air DTV reception.  One issue that many television broadcasters have overlooked is that of OTARD - the FCC rules on over-the-air reception devices.  As we wrote here, these rules have been interpreted to significantly limit the ability of landlords and local governments to adopt zoning rules or restrictive land-use policies forbidding outdoor TV antennas or small satellite dishes for the reception of video programming. This week, the FCC asked  if the restrictions on local authorities should also apply to common areas of housing complexes. 

The rules have traditionally been applied to restrict limitations on antennas and small dishes on property owned by the party wanting to make the installation, or property leased by that party and  even to common areas under the exclusive control of the lessee (like the portion of a driveway or parking area reserved for use by the tenant).  The FCC has allowed landlords and tenants associations to restrict the placement of OTARD devices in common areas not subject to tenant control.  But the FCC has not addressed whether local government authorities can restrict the location of antennas and dishes in these common areas.  The Satellite Broadcasting and Communications Association and DISH and DirecTV have asked the FCC to rule that, under OTARD rules, local authorities can't pass laws restricting the location of TV antennas and small dishes in these common areas, reasoning that if the owners of the land don't care, government should not be able to restrict the use of reception devices there, just as the government can't restrict the installation of these reception devices on property under the control of a tenant or home owner.  This week, the FCC asked for comments whether the OTARD rules should apply to government restrictions over TV reception devices in these common areas.  Comment are due on June 7.  Reply Comments are due on June 22.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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