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|Minnesota Community Living 2013-07-08 Ask the Attorney|
Ask the Attorney
By Nigel H. Mendez, Esq., Carlson & Associates, Ltd.
This column is comprised of questions that have been posed to me by homeowners, property managers and related professionals regarding legal issues that they have encountered with respect to their associations.
Our association maintains a single antenna for over-the-air broadcasts and does not allow the installation of personal antennas. We do allow homeowners to install satellite dishes. The cost of maintaining the antenna is rising, so can we just stop providing that access and still ban antennas?
The quick answer is that unless your association governing documents require such an antenna, you don’t have to provide a common antenna for your association. However, this raises a bigger question regarding banning or restricting antennas or satellite dishes in an association.
Satellite Dishes and Antennas in an Association
In 1996, Congress passed the Telecommunications Act of 1996 and the Federal Trade Commission enacted the Over-the-Air Reception Devices Rule. The rule prohibits, among other things, associations from impairing the ability of homeowners to install, maintain or use over-the-air-reception devices. The rule, in its most basic form, bars any prohibition that unreasonably delays or prevents installation, maintenance, or use of an antenna, unreasonably increases the cost of installation, maintenance or use of an antenna, or precludes reception of an acceptable quality signal. The rule applies to three types of antennas:
It should be noted that this rule only applies to homeowners, or tenants, who have access to an outdoor area that they own, rent or have exclusive use of. In a condominium, such access would usually be limited to a deck or balcony. If no such access exists, then this rule does not apply and the association would not have to allow installation of an antenna.
In a condominium with a balcony or deck that is for the exclusive use of a particular unit, an antenna may be installed on the balcony or deck, provided that it does not extend beyond that area. For example, an association could ban the installation on the outside of a balcony railing. Should the association want to restrict all antennas on a balcony, it could allow for the installation of an antenna on a common area, such as a roof. If this installation location does not increase the cost of installation, or delay that installation in an unreasonable manner, it would be acceptable under the rule.
In a townhome association, the roof and exterior of the building are owned by the unit owner. Therefore, there would be additional installation locations accessible to the homeowner. Associations may pass general regulations regarding installation location (only on roof, back-side of building, etc.) provided that the regulations do not increase the cost of installation, unreasonably delay installation, or sacrifice the quality of reception.
A common antenna, or multiple antennas, can be installed so that every unit can access the signal without the need to install independent antennas. If your association provides such an amenity, it could restrict the installation of additional antennas so long as the quality of signal provided by the common antenna is comparable to what a unit owner could receive with an independent antenna. This type of service is fairly common in condominiums where access to the exterior of the building is limited.
Since the enactment of the rule in 1996, there have been numerous FCC opinions regarding various restrictions that have been imposed by associations. These opinions provide guidance regarding an association’s authority to regulate antennas. The following are some examples of the FCC opinions: An association is prohibited from limiting a unit to installing only one antenna if two are needed to obtain the desired services.An association cannot require a resident to apply for permission prior to installing an antenna. The FCC has ruled that seeking approval constitutes an unreasonable delay in installation. Therefore, it is recommended that associations ensure that all residents are aware of any antenna installation policy that is in place. This policy should clearly outline the preferred installation location and method. A condominium association that banned installations on balconies was unable to charge a $75 fee to have an antenna installed on the common roof, even though it had installed brackets to be used for such purpose. While it could require installation on the roof, the fee was deemed unreasonable.An association is able to ban installation of ham radio antennas, long distance "stick” antennas and dish receivers that are larger than one meter in diameter.
Published by Community Associations Institute — Minnesota Chapter, copyright 2013. All articles and paid advertising represent the opinions of authors and advertisers and not necessarily the opinion of either Minnesota Community Living or CAI–Minnesota Chapter. The information contained within should not be construed as a recommendation for any course of action regarding financial, legal, accounting, or other professional services by the CAI–Minnesota Chapter, or by Minnesota Community Living, or its authors. Articles, letters to the editor, and advertising may be sent to Chapter Staff Editor Joanne Penn at firstname.lastname@example.org, or at CAI–Minnesota Chapter, 1000 Westgate Dr., Suite 252, St. Paul, MN 55114.