On April 18, 2018 the FCC issued a DECLARATORY RULING against the City of Philadelphia, Pennsylvania for violating OTARD:
DECLARATORY RULING CSR 8541-O
In this Declaratory Ruling, we grant a Petition for Declaratory Ruling (“Petition”) filed by the Satellite Broadcasting & Communications Association (“SBCA”) and find that certain specific antenna restrictions in an Ordinance adopted by the City of Philadelphia, Pennsylvania (“City” or “Philadelphia”), are prohibited by the Commission’s Over-the-Air Reception Devices Rule, 47 C.F.R. § Federal Communications Commission
DA 18-393
1.4000 (“OTARD Rule”) 1 , which protects the ability of antenna users to install and use over-the-airreception devices and thereby ensures greater video choice for consumers. The City states that the Ordinance “addresses the uncontrolled proliferation of satellite signal reception devices on the front of homes throughout the City” by limiting the placement of dishes on the front façades of homes and buildings. 2 The Ordinance also imposes requirements regarding certification, notification, painting, and removal of satellite dish antennas and establishes legal obligations for “television access providers and installers” as well as penalties. 3 The City asserts that the Ordinance is intended to improve the visual appearance, property values, and safety of the City’s residents. We conclude that the Ordinance violates the OTARD Rule and we grant SBCA’s Petition to the extent described below.
On February 9, 2018 the Vermont Supreme Court ruled against a Condominium homeowner who invoked OTARD to place an antenna on the roof structure of his unit (No. 2016-316 (Vt. 2018)).
Roy H.A. Watson III v. The Village at Northshore I Association, Inc.
“OTARD” Watson v. Vill. at Northshore I Ass’n, Inc. , No. 2016-316, at *21 (Vt. 2018)
Watson v. Vill. at Northshore I Ass’n, Inc. , No. 2016-316, at *22-23 (Vt. 2018) (“¶ 41. Nevertheless, Watson’s argument fails on the merits. The answer to the question of whether Watson had a right under the OTARD Rule to install an antenna on the roof structures or chimney associated with his unit depends on how the roof structures and chimney are classified—as a common element or as a limited common element. This is because, under the definitions in the Original and Amended Declarations, Watson has exclusive use and control over limited common elements associated with his unit, but not over common elements. Thus, it follows that if the roof structures and chimney are limited common elements, the OTARD Rule bars the Association from enforcing its ban on satellite receivers, but if they are common elements, the OTARD Rule does not apply and the Association is free to enforce its ban. See Preemption of Local Zoning Regulation of Satellite Earth, 11 F.C.C. Rcd. 19276, 19311 (1996)) (concluding that OTARD Rule does not apply “with regard to the placement of antennas on common areas or rental properties, property not within the exclusive control of a person with an ownership interest, where a community association or landlord is legally responsible for maintenance and repair and can be liable for failure to perform its duties properly”); Holliday v. Crooked Creek Vills. Homeowners Ass’n, 759 N.E.2d 1088, 1093-95 (Ind. Ct. App. 2001) (affirming that, even where homeowners had favorable declaratory judgment from FCC, restrictions on homeowners’ installation of satellite dishes did not violate OTARD rule when homeowners sought to install dishes on common elements); 2682 Kingsbridge Assocs., LLC v. Martinez, 782 N.Y.S.2d 496, 497-98 (N.Y. Sup. Ct. 2004) (per curiam) (affirming landlord’s eviction of tenants for unauthorized installation of satellite dish on window and holding that OTARD rule did not prevent landlord from enforcing apartment rule because tenants did not have exclusive rights of use or control over window area); Daly v. River Oaks Place Council of Co-Owners, 59 S.W.3d 416, 419-20 (Tex. App. 2001) (affirming that homeowners’ association that sued homeowner for breach of association’s governing rules did not violate OTARD rule when it refused to permit homeowner to install satellite dish in common area). Because we concluded in Issue Two, ¶¶ 24-33, supra, that the Association properly reclassified roof structures and chimneys as common elements, Watson does not have exclusive use or control over those elements and the OTARD Rule does not bar the Association from enforcing its ban on satellite dishes.”)
When these cases reach the Federal courts, the courts use Stare decisis to uphold FCC judgements. This specifically relates to Chevron deference to the Commission’s interpretation of § 207 (Telecommunications Act of 1996) and of its broad mandate under the Communications Act.
SEE: 254 F.3d 89 (2001)
BUILDING OWNERS AND MANAGERS ASSOCIATION INTERNATIONAL, et al., Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
Satellite Broadcasting and Communications Association, et al., Intervenors.
254 F.3d 89 (2001)