 FEDERAL
COMMUNICATIONS COMMISSION
FACT SHEET
May 2001
Over-the-Air Reception Devices RulePreemption of Restrictions on Placement of Direct Broadcast Satellite,
Multichannel Multipoint Distribution Service, and Television Broadcast
Antennas
Quick Links to Document Sections Below
As directed by Congress in Section 207 of the Telecommunications Act of
1996, the Federal Communications Commission adopted the Over-the-Air
Reception Devices Rule concerning governmental and nongovernmental
restrictions on viewers' ability to receive video programming signals from
direct broadcast satellites ("DBS"), multichannel multipoint
distribution (wireless cable) providers ("MMDS"), and television
broadcast stations ("TVBS").
The rule is cited as 47 C.F.R. Section 1.4000 and has been in effect
since October 14, 1996. It prohibits restrictions that impair the
installation, maintenance or use of antennas used to receive video
programming. The rule applies to video antennas including direct-to- home
satellite dishes that are less than one meter (39.37") in diameter
(or of any size in Alaska), TV antennas, and wireless cable antennas. The
rule prohibits most restrictions that: (1) unreasonably delay or prevent
installation, maintenance or use; (2) unreasonably increase the cost of
installation, maintenance or use; or (3) preclude reception of an
acceptable quality signal.
Effective January 22, 1999, the Commission amended the rule so that it
also applies to rental property where the renter has an exclusive use
area, such as a balcony or patio.
On October 25, 2000, the Commission further amended the rule so that it
applies to customer-end antennas that receive and transmit fixed wireless
signals. This amendment became effective on May 25, 2001.
The rule applies to viewers who place antennas that meet size
limitations on property that they own or rent and that is within their
exclusive use or control, including condominium owners and cooperative
owners, and tenants who have an area where they have exclusive use, such
as a balcony or patio, in which to install the antenna. The rule applies
to townhomes and manufactured homes, as well as to single family homes.
The rule allows local governments, community associations and landlords
to enforce restrictions that do not impair the installation, maintenance
or use of the types of antennas described above, as well as restrictions
needed for safety or historic preservation. In addition, under some
circumstances, the availability of a central or common antenna can be used
by a community association or landlord to restrict the installation of
individual antennas. In addition, the rule does not apply to common areas
that are owned by a landlord, a community association, or jointly by
condominium or cooperative owners. Such common areas may include the roof
or exterior wall of a multiple dwelling unit. Therefore, restrictions on
antennas installed in or on such common areas are enforceable.
This fact sheet provides general answers to questions that may arise
about the implementation of the rule, but is not the rule itself. For
further information or a copy of the rule, call the Federal Communications
Commission at 888-CALLFCC (toll free) or (202) 418-7096. The rule is also
available via the Internet by going to links to
relevant Orders and the rule.
Q: What types of antennas are covered by the rule?
A: The rule applies to the following types of video antennas:
(1) A "dish" antenna that is one meter (39.37") or less
in diameter (or any size dish if located in Alaska) and is designed to
receive direct broadcast satellite service, including direct-to-home
satellite service, or to receive or transmit fixed wireless signals via
satellite.
(2) An antenna that is one meter or less in diameter or diagonal
measurement and is designed to receive video programming services via MMDS
(wireless cable) or to receive or transmit fixed wireless signals other
than via satellite.
(3) An antenna that is designed to receive local television broadcast
signals. Masts higher than 12 feet above the roofline may be subject to
local permitting requirements.
In addition, antennas covered by the rule may be mounted on
"masts" to reach the height needed to receive or transmit an
acceptable quality signal (e.g. maintain line-of-sight contact with the
transmitter or view the satellite). Masts higher than 12 feet above the
roofline may be subject to local permitting requirements for safety
purposes. Further, masts that extend beyond an exclusive use area may not
be covered by this rule.
Q: What are "fixed wireless signals"?
A: "Fixed wireless signals" are any commercial non-broadcast
communications signals transmitted via wireless technology to and/or from
a fixed customer location. Examples include wireless signals used to
provide telephone service or high-speed Internet access to a fixed
location. This definition does not include, among other things,
AM/FM radio, amateur ("HAM") radio, Citizens Band
("CB") radio, and Digital Audio Radio Services ("DARS")
signals.
Q: Does the rule apply to hub or relay antennas?
A: The rule applies to "customer-end antennas" which are
antennas placed at a customer location for the purpose of providing
service to customers at that location. The rule does not cover antennas
used to transmit signals to and/or receive signals from multiple customer
locations.
Q: What types of restrictions are prohibited?
A: The rule prohibits restrictions that impair a person's ability to
install, maintain, or use an antenna covered by the rule. The rule applies
to state or local laws or regulations, including zoning, land-use or
building regulations, private covenants, homeowners' association rules,
condominium or cooperative association restrictions, lease restrictions,
or similar restrictions on property within the exclusive use or control of
the antenna user where the user has an ownership or leasehold interest in
the property. A restriction impairs if it: unreasonably delays or prevents
use of; (2) unreasonably increases the cost of; or (3) precludes a person
from receiving or transmitting an acceptable quality signal from an
antenna covered under the rule. The rule does not prohibit legitimate
safety restrictions or restrictions designed to preserve designated or
eligible historic or prehistoric properties, provided the restriction is
no more burdensome than necessary to accomplish the safety or preservation
purpose.
Q: What types of restrictions unreasonably delay or prevent viewers
from using an antenna?
A: A local restriction that prohibits all antennas would prevent
viewers from receiving signals, and is prohibited by the Commission's
rule. Procedural requirements can also unreasonably delay installation,
maintenance or use of an antenna covered by this rule. For example, local
regulations that require a person to obtain a permit or approval prior to
installation create unreasonable delay and are generally prohibited.
Permits or prior approval necessary to serve a legitimate safety or
historic preservation purpose may be permissible.
Q: What is an unreasonable expense?
A: Any requirement to pay a fee to the local authority for a permit to
be allowed to install an antenna would be unreasonable because such
permits are generally prohibited. It may also be unreasonable for a local
government, community association or landlord to require a viewer to incur
additional costs associated with installation. Things to consider in
determining the reasonableness of any costs imposed include: (1) the cost
of the equipment and services, and (2) whether there are similar
requirements for comparable objects, such as air conditioning units or
trash receptacles. For example, restrictions cannot require that expensive
landscaping screen relatively unobtrusive DBS antennas. A requirement to
paint an antenna so that it blends into the background against which it is
mounted would likely be acceptable, provided it will not interfere with
reception or impose unreasonable costs.
Q: What restrictions prevent a viewer from receiving an acceptable
quality signal?
A: For antennas designed to receive analog signals, such as TVBS, a
requirement that an antenna be located where reception would be impossible
or substantially degraded is prohibited by the rule. However, a regulation
requiring that antennas be placed where they are not visible from the
street would be permissible if this placement does not prevent reception
of an acceptable quality signal or impose unreasonable expense or delay.
For example, if installing an antenna in the rear of the house costs
significantly more than installation on the side of the house, then such a
requirement would be prohibited. If, however, installation in the rear of
the house does not impose unreasonable expense or delay or preclude
reception of an acceptable quality signal, then the restriction is
permissible and the viewer must comply.
The acceptable quality signal standard is different for devices
designed to receive digital signals, such as DBS antennas, digital MMDS
antennas, digital television ("DTV") antennas, and digital fixed
wireless antennas. For a digital antenna to receive or transmit an
acceptable quality signal, the antenna must be installed where it has an
unobstructed, direct view of the satellite or other device from which
signals are received or to which signals are to be transmitted. Unlike
analog antennas, digital antennas, even in the presence of sufficient
over-the-air signal strength, will at times provide no picture or sound
unless they are placed and oriented properly.
Q: Are all restrictions prohibited?
A: No, many restrictions are permitted. Clearly-defined, legitimate
safety restrictions are permitted even if they impair installation,
maintenance or use provided they are necessary to protect public safety
and are no more burdensome than necessary to ensure safety. Examples of
valid safety restrictions include fire codes preventing people from
installing antennas on fire escapes; restrictions requiring that a person
not place an antenna within a certain distance from a power line; and
installation requirements that describe the proper method to secure an
antenna. The safety reason for the restriction must be written in the
text, preamble or legislative history of the restriction, or in a document
that is readily available to antenna users, so that a person wanting to
install an antenna knows what restrictions apply. Safety restrictions
cannot discriminate between objects that are comparable in size and weight
and pose the same or a similar safety risk as the antenna that is being
restricted.
Restrictions necessary for historic preservation may also be permitted
even if they impair installation, maintenance or use of the antenna. To
qualify for this exemption, the property may be any prehistoric or
historic district, site, building, structure or object included in, or
eligible for inclusion on, the National Register of Historic Places. In
addition, restrictions necessary for historic preservation must be no more
burdensome than necessary to accomplish the historic preservation goal.
They must also be imposed and enforced in a non-discriminatory manner, as
compared to other modern structures that are comparable in size and weight
and to which local regulation would normally apply.
Q: How does the rule apply to restrictions on radiofrequency (RF)
exposure from antennas that have the capability to transmit signals?
A: All transmitters regulated by the Commission, including the
customer-end fixed wireless antennas (either satellite or terrestrial)
covered under the amended rule, are required to meet the applicable
Commission guidelines regarding RF exposure limits. The limits established
in the guidelines are designed to protect the public health with a large
margin of safety. These limits have been endorsed by federal health and
safety agencies, such as the Environmental Protection Agency and the Food
and Drug Administration. The Commission requires that providers of fixed
wireless service exercise reasonable care to protect users and the public
from RF exposure in excess of the Commission's limits. In addition, as a
condition of invoking protection under the rule from government, landlord,
and association restrictions, a provider of fixed wireless service must
ensure that customer-end antennas are labeled to give notice of potential
RF safety hazards posed by these antennas.
It is recommended that antennas that both receive and transmit signals
be installed by professional personnel to maximize effectiveness and
minimize the possibility that the antenna will be placed in a location
that is likely to expose subscribers or other persons to the transmit
signal at close proximity and for an extended period of time. In general,
associations, landlords, local governments and other restricting entities
may not require professional installation for receive-only antennas, such
as one-way DBS satellite dishes. However, local governments, associations,
and property owners may require professional installation for transmitting
antennas based on the safety exception to the rule. Such safety
requirements must be: (1) clearly defined; (2) based on a legitimate
safety objective (such as bona fide concerns about RF radiation) which is
articulated in the restriction or readily available to antenna users; (3)
applied in a non-discriminatory manner; and (4) no more burdensome than
necessary to achieve the articulated objectives.
For additional information about the Commission's RF exposure limits,
please visit http://www.fcc.gov/oet/rfsafety
or call the RF Safety Information Line at 202-418-2464.
Q: Whose antenna restrictions are prohibited?
A: The rule applies to restrictions imposed by local governments,
including zoning, land-use or building regulations; by homeowner, townhome,
condominium or cooperative association rules, including deed restrictions,
covenants, by-laws and similar restrictions; and by manufactured housing
(mobile home) park owners and landlords, including lease restrictions. The
rule only applies to restrictions on property where the viewer has an
ownership or leasehold interest and exclusive use or control.
Q: If I live in a condominium or an apartment building, does this rule
apply to me?
A: The rule applies to antenna users who live in a multiple dwelling
unit building, such as a condominium or apartment building, if the antenna
user has an exclusive use area in which to install the antenna.
"Exclusive use" means an area of the property that only you, and
persons you permit, may enter and use to the exclusion of other residents.
For example, your condominium or apartment may include a balcony, terrace,
deck or patio that only you can use, and the rule applies to these areas.
The rule does not apply to common areas, such as the roof, the hallways,
the walkways or the exterior walls of a condominium or apartment building.
Restrictions on antennas installed in these common areas are not covered
by the Commission's rule. For example, the rule would not apply to
prohibit restrictions that prevent drilling through the exterior wall of a
condominium or rental unit.
Q: Does the rule apply to condominiums or apartment buildings if the
antenna is installed so that it hangs over or protrudes beyond the balcony
railing or patio wall?
A: No. The rule does not prohibit restrictions on antennas installed
beyond the balcony or patio of a condominium or apartment unit if such
installation is in, on, or over a common area. An antenna that extends out
beyond the balcony or patio is usually considered to be in a common area
that is not within the scope of the rule. Therefore, the rule does not
apply to a condominium or rental apartment unit unless the antenna is
installed wholly within the exclusive use area, such as the balcony or
patio.
Q: Does the fact that management or the association has the right to
enter these areas mean that the resident does not have exclusive use?
A: No. The fact that the building management or the association may
enter an area for the purpose of inspection and/or repair does not mean
that the resident does not have exclusive use of that area. Likewise, if
the landlord or association regulates other uses of the exclusive use area
(e.g., banning grills on balconies), that does not affect the viewer's
rights under the Commission's rule. This rule permits persons to install
antennas on property over which the person has either exclusive use
or exclusive control. Note, too, that nothing in this rule changes
the landlord's or association's right to regulate use of exclusive use
areas for other purposes. For example, if the lease prohibits antennas and
flags on balconies, only the prohibition of antennas is eliminated by this
rule; flags would still be prohibited.
Q: Does the rule apply to residents of rental property?
A: Yes. Effective January 22, 1999, renters may install antennas within
their leasehold, which means inside the dwelling or on outdoor areas that
are part of the tenant's leased space and which are under the exclusive
use or control of the tenant. Typically, for apartments, these areas
include balconies, balcony railings, and terraces. For rented single
family homes or manufactured homes which sit on rented property, these
areas include the home itself and patios, yards, gardens or other similar
areas. If renters do not have access to these outside areas, the tenant
may install the antenna inside the rental unit. Renters are not required
to obtain the consent of the landlord prior to installing an antenna in
these areas. The rule does not apply to common areas, such as the roof or
the exterior walls of an apartment building. Generally, balconies or
patios that are shared with other people or are accessible from other
units are not considered to be exclusive use areas.
Q: Are there restrictions that may be placed on residents of rental
property?
A: Yes. A restriction necessary to prevent damage to leased property
may be reasonable. For example, tenants could be prohibited from drilling
holes through exterior walls or through the roof. However, a restriction
designed to prevent ordinary wear and tear (e.g., marks, scratches,
and minor damage to carpets, walls and draperies) would likely not be
reasonable provided the antenna is installed wholly within the antenna
user's own exclusive use area.
In addition, rental property is subject to the same protection and
exceptions to the rule as owned property. Thus, a landlord may impose
other types of restrictions that do not impair installation, maintenance
or use under the rule. The landlord may also impose restrictions necessary
for safety or historic preservation.
Q: If I live in a condominium, cooperative, or other type of residence
where certain areas have been designated as "common," do these
rules apply to me?
A: The rules apply to residents of these types of buildings, but the
rules do not permit you to install an antenna on a common area, such as a
walkway, hallway, community garden, exterior wall or the roof. However,
you may install the antenna wholly within a balcony, deck, patio, or other
area where you have exclusive use.
Drilling through an exterior wall, e.g. to run the cable from
the patio into the unit, is generally not within the protection of the
rule because the exterior wall is generally a common element. You may wish
to check with your retailer or installer for advice on how to install the
antenna without drilling a hole. Alternatively, your landlord or
association may grant permission for you to drill such a hole. The
Commission's rules generally do not cover installations if you drill
through a common element.
Q: If my association, building management, landlord, or property owner
provides a central antenna, may I install an individual antenna?
A: Generally, the availability of a central antenna may allow the
association, landlord, property owner, or other management entity to
restrict the installation by individuals of antennas otherwise protected
by the rule. Restrictions based on the availability of a central antenna
will generally be permissible provided that: (1) the person receives the
particular video programming or fixed wireless service that the person
desires and could receive with an individual antenna covered under the
rule (e.g., the person would be entitled to receive service from a
specific provider, not simply a provider selected by the association); (2)
the signal quality of transmission to and from the person's home using the
central antenna is as good as, or better than, than the quality the person
could receive or transmit with an individual antenna covered by the rule;
(3) the costs associated with the use of the central antenna are not
greater than the costs of installation, maintenance and use of an
individual antenna covered under the rule; and (4) the requirement to use
the central antenna instead of an individual antenna does not unreasonably
delay the viewer's ability to receive video programming or fixed wireless
services.
Q: May the association, landlord, building management or property owner
restrict the installation of an individual antenna because a central
antenna will be available in the future?
A: It is not the intent of the Commission to deter or unreasonably
delay the installation of individual antennas because a central antenna
may become available. However, persons could be required to remove
individual antennas once a central antenna is available if the cost of
removal is paid by the landlord or association and the user is reimbursed
for the value of the antenna. Further, an individual who wants video
programming or fixed wireless services other than what is available
through the central antenna should not be unreasonably delayed in
obtaining the desired programming or services either through modifications
to the central antenna, installation of an additional central antenna, or
by using an individual antenna.
Q: I live in a townhome community. Am I covered by the FCC rule?
A: Yes. If you own the whole townhouse, including the walls and the
roof and the land under the building, then the rule applies just as it
does for a single family home, and you may be able to put the antenna on
the roof, the exterior wall, the backyard or any other place that is part
of what you own. If the townhouse is a condominium, then the rule applies
as it does for any other type of condominium, which means it applies only
where you have an exclusive use area. If it is a condominium townhouse,
you probably cannot use the roof, the chimney, or the exterior walls
unless the condominium association gives you permission. You may want to
check your ownership documents to determine what areas are owned by you or
are reserved for your exclusive use.
Q: I live in a condominium with a balcony, but I cannot receive a
signal from the satellite because my balcony faces north. Can I use the
roof?
A: No. The roof of a condominium is generally a common area, not an
area reserved for an individual's exclusive use. If the roof is a common
area, you may not use it unless the condominium association gives you
permission. The condominium is not obligated to provide a place for you to
install an antenna if you do not have an exclusive use area.
Q: I live in a mobile home that I own but it is located in a park where
I rent the lot. Am I covered by the FCC rule?
A: Yes. The rule applies if you install the antenna anywhere on the
mobile or manufactured home that is owned by you. The rule also applies to
antennas installed on the lot or pad that you rent, as well as to other
areas that are under your exclusive use and control. However, the rule
does not apply if you want to install the antenna in a common area or
other area outside of what you rent.
Q: I want a conventional "stick" antenna to receive a distant
over-the air television signal. Does the rule apply to me?
A: No. The rule does not apply to television antennas used to receive a
distant signal.
Q: I want to install an antenna for broadcast radio or amateur radio.
Does the rule apply to me?
A: No. The rule does not apply to antennas used for AM/FM radio,
amateur ("ham") radio, Citizen's Band ("CB") radio or
Digital Audio Radio Services ("DARS").
Q: I want to install an antenna to access the Internet. Does the rule
apply to me?
A: Yes. Antennas designed to receive and/or transmit data services,
including Internet access, are included in the rule.
Q: Does this mean that I can install an antenna that will be used for
voice and data services even though it does not provide video
transmissions?
A: Yes. The most recent amendment expands the rule and permits you to
install an antenna that will be used to transmit and/or receive voice and
data services, except as noted above. The rule will also continue to cover
antennas used to receive video programming.
Q: I have already installed an antenna that is used solely for the
purpose of receiving video programming. Am I affected by this amendment?
A: Persons who have already installed, or who plan to install, an
antenna designed to receive only video programming are not affected by
this amendment. The purpose of the amendment is to permit persons to
install antennas that may be used for voice and data services, as well as
for video programming services. The rules concerning restrictions on the
placement of video antennas will apply equally to antennas that are used
for voice and data services.
Q: I'm a board member of a homeowners' association, and we want to
revise our restrictions so that they will comply with the FCC rule. Do you
have guidelines you can send me?
A: We do not have sample guidelines because every community is
different. We can send you the rule and the relvant orders, which will
give you general guidance. (See list of documents at the end
of this factsheet. Some communities have written restrictions that
provide a prioritized list of placement preferences so that residents can
see where the association wants them to install the antenna. The residents
should comply with the placement preferences provided the preferred
placement does not impose unreasonable delay or expense or preclude
reception of an acceptable quality signal.
Q: What restrictions are permitted if the antenna must be on a very
tall mast to get a signal?
A: If you have an exclusive use area that is covered by the rule and
need to put your antenna on a mast, the local government, community
association or landlord may require you to apply for a permit for safety
reasons if the mast extends more than 12 feet above the roofline. If you
meet the safety requirements, the permit should be granted. Note that the
Commission's rule only applies to antennas and masts installed wholly
within the antenna user's exclusive use area. Masts that extend beyond the
exclusive use area are outside the scope of the rule. For installations on
single family homes, the "exclusive use area" generally would be
anywhere on the home or lot and the mast height provision is usually most
relevant in these situations. For example, if a homeowner needs to install
an antenna on a mast that is more than 12 feet taller than the roof of the
home, the homeowners' association or local zoning authority may require a
permit to ensure the safety of such an installation, but may not prohibit
the installation unless there is no way to install it safely. On the other
hand, if the owner of a condominium in a building with multiple dwelling
units needs to put the antenna on a mast that extends beyond the balcony
boundaries, such installation would generally be outside the scope and
protection of the rule, and the condominium association may impose any
restrictions it wishes (including an outright prohibition) because the
Commission rule does not apply in this situation.
Q: Does the rule apply to commercial property or only residential
property?
A: Nothing in the rule excludes antennas installed on commercial
property. The rule applies to property used for commercial purposes in the
same way it applies to residential property.
Q: What can a local government, association, or consumer do if there is
a dispute over whether a particular restriction is valid?
A: Restrictions that impair installation, maintenance or use of the
antennas covered by the rule are preempted (unenforceable) unless they are
no more burdensome than necessary for the articulated legitimate safety
purpose or for preservation of a designated or eligible historic site or
district. If a person believes a restriction is preempted, but the local
government, community association, or landlord disagrees, either the
person or the restricting entity may file a Petition for Declaratory
Ruling with the FCC or a court of competent jurisdiction. We encourage
parties to attempt to resolve disputes prior to filing a petition. Often
calling the FCC for information about how the rule works and applies in a
particular situation can help to resolve the dispute. If a local
government, community association, or landlord acknowledges that its
restriction impairs installation, maintenance, or use and is preempted
under the rule but believes it can demonstrate "highly specialized or
unusual" concerns, the restricting entity may apply to the Commission
for a waiver of the rule.
Q: What is the procedure for filing a petition or requesting a waiver
at the Commission?
A: There is no special form for a petition. You may simply describe the
facts, including the specific restriction(s) that you wish to challenge.
If possible, attach a copy of the restriction(s) and any relevant
correspondence. If this is not possible, be sure to include the exact
language of the restriction in question with the petition. General or
hypothetical questions about the application or interpretation of the rule
cannot be accepted as petitions.
Petitions for declaratory rulings and waivers must be served on all
interested parties. For example, if a homeowners' association files a
petition seeking a declaratory ruling that its restriction is not
preempted and is seeking to enforce the restriction against a specific
resident, service must be made on that specific resident. The homeowners'
association will not be required to serve all other members of the
association, but must provide reasonable, constructive notice of the
proceeding to other residents whose interests foreseeably may be affected.
This may be accomplished, for example, by placing notices in residents'
mailboxes, by placing a notice on a community bulletin board, or by
placing the notice in an association newsletter. If a local government
seeks a declaratory ruling or a waiver from the Commission, the local
government must take steps to afford reasonable, constructive notice to
residents in its jurisdiction (e.g., by placing a notice in a local
newspaper of general circulation). Proof of constructive notice must be
provided with a petition. In this regard, the petitioner should provide a
copy of the notice and an explanation of where the notice was placed and
how many people the notice reasonably might have reached.
Finally, if a person files a petition or lawsuit challenging a local
government's ordinance, an association's restriction, or a landlord's
lease, the person must serve the local government, association or
landlord, as appropriate. You must include a "proof of service"
with your petition. Generally, the "proof of service" is a
statement indicating that on the same day that your petition was sent to
the Commission, you provided a copy of your petition (and any attachments)
to the person or entity that is seeking to enforce the antenna
restriction. The proof of service should give the name and address of the
parties served, the date served, and the method of service used (e.g.,
regular mail, personal service, certified mail).
All allegations of fact contained in petitions and related pleadings
before the Commission must be supported by an affidavit signed by one or
more persons who have actual knowledge of such facts. You must send an
original and two copies of the petition and all attachments to: Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554, Attention: Media Bureau.
Q: Can I continue to use my antenna while the petition or waiver
request is pending?
A: Yes, unless the restriction being challenged or for which a waiver
is sought is necessary for reasons of safety or historic preservation.
Otherwise, the restriction cannot be enforced while the petition is
pending.
Q: Who is responsible for showing that a restriction is enforceable?
A: When a conflict arises about whether a restriction is valid, the
local government, community association, property owner, or management
entity that is trying to enforce the restriction has the burden of proving
that the restriction is valid. This means that no matter who questions the
validity of the restriction, the burden will always be on the entity
seeking to enforce the restriction to prove that the restriction is
permitted under the rule or that it qualifies for a waiver.
Q: Can I be fined and required to remove my antenna immediately if the
Commission determines that a restriction is valid?
A: If the Commission determines that the restriction is valid, you will
have a minimum of 21 days to comply with this ruling. If you remove your
antenna during this period, in most cases you cannot be fined. However,
this 21-day grace period does not apply if the FCC rule does not apply to
your installation (for example, if the antenna is installed on a
condominium general common element or hanging outside beyond an apartment
balcony. If the FCC rule does not apply at all in your case, the 21-day
grace period does not apply.
Q: Who do I call if my town, community association or landlord is
enforcing an invalid restriction?
A: Call the Federal Communications Commission at (888) CALLFCC
(888-225-5322), which is a toll-free number, or 202-418-7096, which is not
toll-free. Some assistance may also be available from the direct broadcast
satellite company, multichannel multipoint distribution service,
television broadcast station, or fixed wireless company whose service is
desired.
Links to Relevant Orders and the Rule
- (First) Report and Order, FCC 96-328, released August 6, 1996: [
Text
Version | WordPerfect
Version ]
Declaratory Ruling, Star Lambert, DA 97-1554, released July 27, 1997:
[ Text
]
Declaratory Ruling, Jay Lubliner, DA 97-2188, released October 14,
1997: [ Text
]
Declaratory Ruling, Michael MacDonald, DA 97-2189, released October
14, 1997: [ Text
]
Declaratory Ruling, Omnivision, DA 97-2187, released October 14, 1997:
[ Text
]
Declaratory Ruling, Wireless Broadcasting Systems (WBSS), DA 97-2506,
released November 28, 1997: [ WordPerfect
| Text
]
Declaratory Ruling, Victor Frankfurt, DA 97-2305, released December
31, 1997: [
Text
]
Declaratory Ruling, Jason Peterson, DA 98-0188, released February 4,
1998: [ Text
]
Declaratory Ruling, Jordan Lourie, DA 98-1170, released June 17, 1998:
[ WordPerfect
| Text
]
Declaratory Ruling, James Sadler, DA 98-1284, released July 1, 1998: [
WordPerfect
|
Text
]
Memorandum Opinion and Order, Denial of Application of Review of
Declaratory Ruling for Jay Lubliner (above), FCC 98-201, released August
21, 1998: [ WordPerfect
| Text
]
Order on Reconsideration, FCC 98-214, released September 25, 1998: [ WordPerfect
| Text
]
Second Report and Order, FCC 98-273, released November 20, 1998: [ Text
| WordPerfect
| Acrobat
| News
Release and Statements ]
Declaratory Ruling, Stanley and Vera Holliday, DA 99-2132, released
October 8, 1999: [ MSWord
|
Acrobat
]
Second Order on Reconsideration, FCC 99-360, released November 24,
1999: [ Text
|
MSWord
]
Declaratory Ruling, Bell Atlantic Video, DA 00-927, released April 26,
2000: [ MSWord
| Acrobat
]
Competitive Networks Report and Order, FCC 00-366, released October
25, 2000: [
Text
| MSWord
|
Acrobat
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News
Release and Statements ]
Declaratory Ruling, Victor Frankfurt, DA 01-0153, released February 7,
2001: [
MSWord
|
Acrobat
]
Declaratory Ruling, Corey Roberts, DA 01-1276, released May 24, 2001:
[ MSWord
| Acrobat
]
GUIDANCE ON FILING A PETITION
Q: What are the procedural requirements for filing a Petition for
Declaratory Ruling or Waiver with the Commission?
A: There is no special form for a petition. You may simply describe the
facts, including the specific restriction(s) that you wish to challenge.
If possible, attach a copy of the restriction(s) and any relevant
correspondence. If this is not possible, be sure to include the exact
language of the restriction in question with the petition. General or
hypothetical questions about the application or interpretation of the rule
cannot be accepted as petitions.
Petitions for declaratory rulings and waivers must be served on all
interested parties. An entity seeking to impose or maintain a restriction
must include with its petition a proof of service that it has served the
affected residents. Similarly, an antenna user seeking to challenge the
permissibility of a restriction must include with the petition a proof of
service that the antenna user has served the restricting entity with a
copy of the Petition.
If you are an antenna user, you must serve a copy of the Petition on
the entity seeking to enforce the restriction (i.e., the local
government, community association or landlord). If you are a local
government, community association or landlord, you must serve a copy of
the Petition on the residents in the community who currently have or wish
to install antennas that will be affected by the restriction your Petition
seeks to maintain. For example, if a homeowners' association files a
petition seeking a declaratory ruling that its restriction is not
preempted and is seeking to enforce the restriction against a specific
resident, service must be made on that specific resident. The homeowners'
association will not be required to serve all other members of the
association, but must provide reasonable, constructive notice of the
proceeding to other residents whose interests may foreseeably be affected.
This may be accomplished, for example, by placing notices in residents'
mailboxes, by placing a notice on a community bulletin board, or by
placing the notice in an association newsletter. If a local government
seeks a declaratory ruling or a waiver from the Commission, the local
government must take steps to afford reasonable, constructive notice to
residents in its jurisdiction (e.g., by placing a notice in a local
newspaper of general circulation). Proof of constructive notice must be
provided with a petition. In this regard, the petitioner should provide a
copy of the notice and an explanation of where the notice was placed and
how many people the notice might reasonably have reached.
Finally, if a person files a petition or lawsuit challenging a local
government's ordinance, an association's restriction, or a landlord's
lease, the person must serve the local government, association or
landlord, as appropriate. You must include a "proof of service"
with your petition. Generally, the "proof of service" is a
statement indicating that on the same day that your petition was sent to
the Commission, you provided a copy of your petition (and any attachments)
to the person or entity that is seeking to enforce the antenna
restriction. The proof of service should give the name and address of the
parties served, the date served, and the method of service used (e.g.,
regular mail, personal service, certified mail).
If you wish to file either a Petition for Declaratory Ruling or a
Petition for Waiver pursuant to the Commission's Over-the-Air Reception
Devices Rule (47 CFR Section 1.4000), you must file an original and two
copies of your Petition on the following address:
Office of the Secretary
Federal Communications Commission
445 12th Street, S.W.
Washington, D.C. 20554
Attn: Media Bureau
Q: What are the substantive requirements for filing a petition for
waiver or declaratory ruling?
A: To file a Petition for Waiver, follow the requirements in Section
1.4000(c) of the rule. The local government, community association or
landlord requesting the waiver must demonstrate "local concerns of a
highly specialized or unusual nature." The petition must also specify
the restriction for which the waiver is sought, or the petition will not
be considered.
To file a Petition for Declaratory Ruling, follow the requirements set
forth in Section 1.4000(d) of the rule. Set out the restriction in
question so that we can determine whether it is permissible or prohibited
under the rule. In a Petition for Declaratory Ruling, the burden of
demonstrating that a particular restriction complies with the rule is on
the entity seeking to impose the restriction (e.g., the local
government, community association or landlord).
We recommend that you include the language of the restriction in
question, as well as a daytime telephone number, with your petition.
While a petition for declaratory ruling or waiver is pending with the
Commission or a court, the restriction in question may not be enforced
unless it is necessary for safety or historic preservation. No fines or
penalties, including attorneys fees, may be imposed by the restricting
entity while a petition is pending. If the restriction is found to be
permissible, the antenna users subject to the ruling will generally have
at least 21 days in which to comply before a fine or penalty is imposed.
- FCC -
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