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John Buric

The Federal Telecommunications Act, has impacted various types of properties (condominiums, townhomes, apartments, homeowners associations, manufactured home communities, etc.) by limiting the ability of landlords to restrict or even prohibit certain satellite dishes, video antennas and internet antennas. The Federal Communications Commission (“FCC”) has also adopted Rules which must be followed by landlords. There are only a few landlord exemptions from the Rules, such as where property is in an historic site or part of an historic preservation area, where the landlord has a central antenna that allows the tenants to receive the broadcast they are seeking to receive or where the FCC grants a waiver, which is only granted under very limited circumstances.

The Rules prohibit associations, landlords and other communities from imposing certain restrictions on mini‑satellite dishes, video dishes and antennas, internet antennas, and local television broadcast antennas that are less than one meter (approximately 40 inches) in diameter or diagonal measurement. The Rules imposing the restrictions also apply to the masts used to support the antennas. However, masts higher than 12 feet above a roof line may be subject to certain limitations. Presently, communities can continue to prohibit AM/FM radio antennas, ham radio antennas, citizens band (CB) radio antennas, larger satellite and video dishes, certain Internet satellite dishes and the like, and digital audio radio service (such as satellite radio) antennas.

The Rules allow tenants in manufactured home communities to install a mini‑dish/ video/ internet antenna on their home, patio, yard, garden, or other similar area on their rental lot within the exclusive use or control of the tenant. The tenants are not required to obtain the landlord ’s consent prior to installing the mini‑dish or antenna nor can they be required to pay any fee to the landlord. The term “exclusive use” means an area of the property that only the tenant, and persons permitted by the tenant, may enter and use to the exclusion of other persons. For rental purposes, the fact that the landlord might enter an area for purposes of inspection or repair does not necessarily mean that the tenant does not have “exclusive use” of that area. Nothing in the Rules changes the landlord’s right to regulate the use of “exclusive use” areas for other purposes, such as restricting signs or other items. Further, the Rules allow landlords to continue to prohibit or restrict dishes or antennas in common areas, such as common facilities owned and maintained by the landlord.

Under the Rules, a landlord or homeowners association may not restrict or require a tenant or homeowner to install a dish or antenna in such a way that it causes an unreasonable delay in the installation, adds an unreasonable cost or prevents the tenant from receiving an adequate quality signal. It would likely be unlawful for a landlord or homeowners association to require extensive camouflaging or screening of the dish. However, more reasonable screening requests, such as painting the dish a particular color to match the home or to blend in with the landscape, or requiring relatively minor screening (such as a reasonably priced shrub) might be deemed acceptable, provided that it does not interfere with the tenant’s ability to receive an adequate quality signal. The Rules also allow landlords and associations to impose certain legitimate restrictions, such as those designed to prevent damage to the leased property (other than ordinary wear and tear or common areas), legitimate safety restrictions (for example, prohibiting installation of a mast within a designated distance from power lines or a neighboring home), requiring the installer to meet applicable building code requirements, and requiring the installer to follow the manufacturer’s installation instructions. Any restriction that is imposed based on safety must be in writing and cannot discriminate between a mini‑dish/antenna and other improvements of similar size and weight. In other words, if a person is prohibited from installing a mini‑dish within a designated distance from a power line, that same restriction must be applied to other similar improvements.

It would likely not be unreasonable for a landlord or association to establish its preferences for the location of such dishes/antennas, in the order of priority, provided that the location will not prevent the tenant from obtaining an optimal signal. For example, a manufactured home community might encourage tenants to first attempt to locate the dish in the rear of the rental lot, so that it is not visible from the street or common areas. If that location is not feasible, impairs the signal, adds unreasonable expense to the installation or would cause a delay in installation, then the tenant would be permitted to install the dish in the landlord’s second area of preference. A landlord might therefore desire to list several potential areas for preferred installation.

Any restriction by a landlord or association in violation of the FCC’s Rules is unenforceable. If there is a dispute over whether a restriction is enforceable, a party may file a Petition for Declaratory Ruling with the FCC or a court of competent jurisdiction to decide the issue. While such a Petition is pending, and unless the restriction is for safety or historic preservation, the restriction cannot be enforced, the person cannot be fined, and the person cannot be required to remove the antenna or mast.

So, what should a landlord or association do to protect their aesthetic appearance, maintain a safe environment and help prevent the community from looking like an antenna farm? Every community should adopt a comprehensive satellite dish/video/internet antenna policy specifically tailored for their community and which complies with the FCC’s Rules. Keep in mind that if there is no written policy regarding dishes and antennas, a landlord might be prohibited from imposing any restrictions on those items. A carefully considered and well drafted policy can help protect the appearance of your community, its marketability, desirability and property value.

This article was originally published in 2008.