• FCC's OTARD Rules - Limiting Zoning and Land Use Restrictions on Outdoor TV Antennas
  • August 13, 2009
  • Law Firm: Davis Wright Tremaine LLP - Washington Office
  • Following the digital transition, issues with the reception of some television stations have highlighted the need for the use of outdoor antennas to receive the digital signal.  Last week, in three FCC decisions, the Commission made clear that its Over-the-Air Reception Device rules (the "OTARD rules") prohibit most zoning and other land-use restrictions, both governmental and private, on the use of such antennas.  These rules were adopted as a result of Congressional actions, and prohibit many restrictions on the installation and use of antennas used to receive television and other video signals either on private property owned by the user of the antenna or on property leased by the user.  Stations should become familiar with these rules, and let their viewers know of the rules, so that they can use them if they have problems installing antennas to receive the new digital signals over the air.

    The rules apply to antennas that are one meter or less in diameter, or any size in Alaska, and are designed to receive or transmit direct broadcast satellite services, or one meter or less in diagonal measurement and are designed to receive or transmit video programming services through multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services; and antennas designed to receive television broadcast signals.  For the Rule to apply, the antenna must be installed on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property upon which the antenna is located.

    The rules prohibits a restriction that impairs installation, maintenance, use of a protected 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.  There are exceptions to the Rule which permit restrictions necessary to address valid and clearly articulated safety or historic preservation issues, provided such restrictions are as narrowly tailored as possible, impose as little burden as possible, and apply in a nondiscriminatory manner throughout the regulated area.  The parties seeking to enforce the restrictions have to justify those restrictions if challenged by an antenna user.

    In the recent FCC cases, the Commission went through a thorough detailed review of the lease agreements or condo restrictions that applied to the users to determine if the space where the antenna was proposed to be located was space under the user's exclusive control, or if the area was a common area that all tenants could enjoy.  The Commission also put the burden on the parties trying to enforce the restrictions to prove that the restrictions were minimal, and that the viewer had other options to receive his desired video signal.  Clearly, with outdoor DTV antennas becoming more important, station with viewers having issues with the installation of their receive antenna should be aware of these rules, and should take advantage of them where necessary.  Landowners, condo groups and others trying to enforce such restrictions should also plan accordingly - adopting restrictions that are narrowly tailored to their goals, and supported by evidence of those goals and the lack of other alternatives, so that they can be enforced in light of the Commission's rulings in these and other cases.