FCC Expands Over-the-Air Reception Devices Rule and Preempts Chicago Ordinance Restricting Placement of Satellite Dish Antennas
The Federal Communications Commission (FCC) recently issued two orders regarding its Over-the-Air Reception Devices Rule (OTARD Rule), which protects the ability of antenna users to install and use over-the-air reception devices to receive Internet access services, local television broadcast signals, and video programming.1 First, the FCC expanded the scope of the OTARD Rule to include certain hub and relay antennas that previously had been excluded because they could be used to transmit signals to multiple customer locations.Second, the FCC invalidated an ordinance issued by the city of Chicago that limited the placement of satellite antenna dishes to locations that are not visible from any street adjacent to the property.3 These orders are relevant to private entities, such as building owners and homeowners associations, and state and local governmental entities that may have an interest in limiting the placement of antennas.
The OTARD Rule prohibits governmental and non-governmental restrictions that impair the installation, maintenance, or use of antennas “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.”4 Governmental restrictions include state and local laws and regulations, such as zoning, land use, and building regulations. Non-governmental restrictions encompass private covenants, contract provisions, and homeowners association rules. The types of antennas covered by the OTARD Rule include: (1) antennas that are one meter or less in diameter or diagonal measurement used to receive video programming services; (2) antennas designed to receive local television broadcast signals; and (3) antennas designed to receive fixed wireless or broadband Internet signals. A restriction on the use of an antenna violates the OTARD Rule 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 or transmission of an acceptable quality signal,5
Expansion of the OTARD Rule’s Applicability to Hubs and Relay Stations
The FCC’s position regarding the applicability of the OTARD Rule to hub or relay antennas used to transmit signals and/or receive signals from multiple customer locations has evolved over the past 20 years. Since 2004, the FCC has interpreted its OTARD Rule to protect installations that serve a customer on a premises and also that relay signals to other customers, but would not apply to installations that are designed primarily as hubs for distribution of service.6 In 2019, the FCC issued a notice of proposed rulemaking seeking comment on a proposed amendment to the OTARD Rule to extend its scope to fixed wireless facilities that operate primarily as hub and relay antennas, but that are not providing telecommunications services.7 The purpose of the proposed amendment was to encourage the development of 5G broadband networks, which rely on smaller antennas located closer to customers (as opposed to the larger antennas spread over greater distances that have been traditionally used to build out networks).
In the OTARD Order, released Jan. 7, 2021, the FCC amended its OTARD Rule to apply to all hub and relay antennas used to distribute fixed wireless services to multiple customer locations, provided that (1) the antenna serves a customer on the premises where it is located and (2) the service provided over the antenna is broadband-only. The FCC stated that the expansion of the OTARD Rule will facilitate the rapid deployment of fixed wireless networks for 5G and high-speed Internet services. The amended OTARD Rule will not impact existing rooftop antenna leases between a building owner and a fixed wireless service provider, unless the building owner is a customer of the provider. If the building owner is a customer of the fixed wireless service provider, then the OTARD Rule will protect the building owner/customer lease from any governmental or non-governmental restrictions on the placement of the antenna.
Preemption of Chicago Ordinance Restricting Placement of Satellite Antenna Dishes
In response to a petition for a declaratory ruling filed by satellite carriers and a trade association representing the consumer satellite industry, the FCC’s Media Bureau preempted a city of Chicago ordinance based on its finding that in violation of the OTARD Rule the ordinance impaired the ability of antenna users to install, maintain, or use over-the-air reception devices. The Chicago ordinance at issue restricted the placement of satellite dish antennas at locations not visible from any street adjacent to the property on which the equipment is located (although a device could be placed wholly within a balcony or patio under the exclusive control of the user). The ordinance allowed for an exception if compliance was not technically feasible (i.e., compliance would cause material delay or reduction in signal reception or additional significant additional cost to the user) and the installer provided the user with a certification to that effect. If the installer provided the certification, then the satellite dish antenna could be placed in locations that were “minimally visible” from the street adjacent to the subject property (such as by using landscaping, fencing, architectural features of the property to screen the antenna from view). The Chicago ordinance also required any satellite dish antennas and associated equipment to be removed when no longer in service.
In the Chicago Declaratory Ruling, the Media Bureau noted that the OTARD Rule only permits restrictions on the placement of over-the-air reception devices if there is a safety or historic preservation reason for the restrictions, and that the city of Chicago did not raise any such justifications for its ordinance. The Media Bureau found that the placement requirements (i.e., not visible from an adjacent property) violated the OTARD Rule because they prohibited placement of satellite antenna dishes in areas within the exclusive control of the antenna user. In addition, the Media Bureau concluded that the “not technically feasible” exception the ordinance’s placement restrictions was more burdensome than OTARD Rule’s standard. The certification requirement was similarly found to be unenforceable because it would impose unreasonable delay and cost on the satellite dish user. The requirement that satellite dishes be shielded from view also violated the OTARD Rule because there were no exceptions for situations in which installation or use of the antenna would be impaired. Finally, the Media Bureau concluded that the removal requirement for satellite antenna dishes no longer in service was vague because it did not identify who was responsible for making a determination of the service status or for removing the equipment.
The Media Bureau’s decision to preempt the Chicago ordinance is consistent with its decision in 2018 to preempt a similar ordinance enacted by the city of Philadelphia.8 These rulings demonstrate that the FCC will carefully review restrictions on customers’ ability to install and use antennas to receive communications services covered by the OTARD Rule. Moreover, the FCC’s expansion of the OTARD Rule to include antennas used to receive fixed wireless broadband services highlights the FCC’s commitment to facilitate the deployment of 5G networks.
1 See 47 C.F.R. § 1.4000.
2 See Updating the Commission’s Rule for Over-the-Air Reception Devices, WT Docket No. 19-71, Report and Order, FCC 21-10 (2021) (OTARD Order).
3 See Satellite Broadcasting & Communications Association; Petition for Declaratory Ruling Under 47 C.F.R. § 1.4000, MB Docket No. 20-284, Declaratory Ruling, DA 21-38 (2021) (Chicago Declaratory Ruling).
4 47 C.F.R. § 1.4000(a). The OTARD Rule is not applicable to common areas of a building or property.
5 The OTARD Rule provides that restrictions on the use of antennas are permitted under certain circumstances, such as if there is a legitimate safety objective for the restriction or the restriction is necessary to preserve a historic structure. See 47 C.F.R. § 1.4000(b). The OTARD Rule also provides a process for an antenna user to petition the FCC or a court to determine whether a restriction is permissible and a process for governmental and non-governmental entities to request waivers of the rule. 47 C.F.R. § 1.4000(d), (e).
6 See Promotion of Competitive Networks in Local Telecommunications Markets, WT Docket No. 99-217, Order on Reconsideration, 19 FCC Rcd 5637, ¶ 17 & n.42 (2004).
7 Telecommunications services are not covered by the OTARD Rule because state and local restrictions on the ability to provide such services are governed by Sections 253 and 332 of the Communications Act of 1934, as amended (47 U.S.C. § § 253, 332).
8 Satellite Broadcasting & Communications Association; Petition for Declaratory Ruling Under 47 C.F.R. § 1.4000, Declaratory Ruling, 33 FCC Rcd 3737 (Media Bureau 2018).