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[TowerTalk] Subdivision Deed restrictions (LONG)

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Subject: [TowerTalk] Subdivision Deed restrictions (LONG)
From: (Jim W9WU)
Date: Wed, 1 Apr 1998 13:54:40 EST
In a message dated 3/30/98 10:02:55 AM Central Standard Time, writes:

 SECTION 8.10          Antennas and Satellite Dish System
 Television Antenna Prohibited.
 No television antenna of any type may be erected or maintained on any
 building site except in the attic of a residence without prior written
 consent of the AWC board. 
 Other Prohibited Antenna.
 In no event shall any antenna or other device be used for transmitting
 electronic signals of any kind. No electronic antenna or device of any
 type, citizen band, "HAM", "CB" or similar radio antenna or other
 television antenna or accessories, except as above provided, shall be
 erected or permitted to remain on any building site or elsewhere in the
 subdivision, or on any residence or other building; provided the AWC may
 approve placement of same.
 Satellite Dish Systems.
 No satellite dish system, microwave television antenna or similar devices
 of any type shall be permitted on any building site or elsewhere in the
 subdivision unless approved by the AWC. The AWC may (but shall not be
 required to) permit installation of a satellite dish system, microwave
 television antenna or similar device only if no part of same is visible
 from any street. The provisions hereof shall not apply to any satellite
 dish or similar system maintained by the Association.
Section 207 of the Telecommunications Act of 1996 specifically prohibits any
limitation by way of zoning, ccr or other land use regulation that would
restrict the erection or use of any tv antenna less than 12 feet in height, or
any satellite dish less than 3 foot in diameter.  The regulation is at 97CFR
1.400.  You can find the complete Report and Order on the Fcc web site
( by searching for fcc96328.txt

The Order was approved by the OMB and went into effect in October 1996. The
Commission has since issued several preemption rulings against both municipal
and home owner association rules against tv and satellite restrictions.

The FCC Fact Sheet on the Section 207 states:


August 1996

      Placement of Direct Broadcast Satellite, Multichannel Multipoint
           Distribution Service, and Television Broadcast Antennas 

As directed by Congress in the Telecommunications Act of 1996, the Federal
Communications Commission has adopted rules concerning 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).

Receiving video programming from any of these services requires use of an
antenna, and the
installation, maintenance or use of these antennas may be restricted by local
governments or
community associations. These restrictions have included such provisions as
requirements for permits or prior approval, and requirements that a viewer
plant trees around the antenna to screen it from view, as well as absolute
bans on all antennas. In passing this new law, Congress believed that local
restrictions were preventing viewers from choosing DBS, MMDS, or TVBS because
of the additional burdens that the restrictions imposed. To implement this
legislation, on August 5, 1996, the Commission adopted a new rule that is
intended to eliminate unnecessary restrictions on antenna placement and use
while minimizing any interference caused to local governments and

This rule will become effective after it is approved by the Office of
Management and Budget in
accordance with the requirements of the Paperwork Reduction Act. 

The new rule prohibits restrictions that impair the installation, maintenance
or use of antennas used to receive video programming. These antennas include
DBS satellite dishes that are less than one meter (39") in diameter (larger in
Alaska), TV antennas, and antennas used to receive MMDS. 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.
This rule means that, in most circumstances, viewers will be able to install,
use and maintain an antenna on their property if they directly own the
property on which the antenna
will be located.

The Telecommunications Act and this new rule are designed to promote
competition among video programming service providers, enhance consumer
choice, and assure wide access to
communications. The rule allows local governments and homeowners' associations
to enforce
restrictions that do not impair reception of these signals as well as
restrictions needed for safety or historic preservation. The rule balances
these public concerns with an individual's desire to receive video
programming. The Commission has asked for further comment on whether
additional rules should apply to situations where a viewer wants to install an
antenna on property owned by a landlord or on common property controlled by a
condominium or homeowners' association.

This fact sheet provides general answers to questions that may arise about the
implementation of the rule. For further information, call the Federal
Communications Commission at (202) 418-0163.

Q: What types of restrictions are prohibited?

A: The rule prohibits restrictions that impair a viewer's ability to receive
signals from a provider of DBS, MMDS or TVBS. The rule applies to state or
local laws or regulations, including zoning, land-use or building regulations,
private covenants, homeowners' association rules or similar restrictions on
property within the exclusive use or control of the antenna user where the
user has a direct or indirect ownership interest in the property. A
restriction impairs if it: 1) unreasonably delays or prevents use of, 2)
unreasonably increases the cost of, or 3) precludes a subscriber from
receiving an acceptable quality signal from, one of these antennas. The rule
does not prohibit safety restrictions or
restrictions designed to preserve historic districts. 

Q: What types of restrictions unreasonably delay or prevent subscribers from
receiving a

A: A local restriction that prohibits all antennas would prevent subscribers
from receiving signals, and is prohibited by the Commission's rule. Procedural
requirements can also impair the ability to receive service. Thus, local
regulations that require a person to obtain a permit or approval prior to
receiving service will delay reception; this is generally allowed only if it
is necessary to serve a safety or historic preservation purpose. 

Q: What is an unreasonable additional cost to install, maintain or use an

A: Any requirement to pay a fee to the local authority in order to be allowed
to install an antenna would be unreasonable, unless it is a permit fee that is
needed to serve safety or historic preservation or a permit is required in the
case of installation on a mast greater than 12 feet. Things to consider in
determining the reasonableness of any costs imposed include: the cost of the
equipment and services, whether there are similar requirements for other
similar installations like air conditioning units or trash receptacles, and
what visual impact the antenna has on the surroundings. Restrictions cannot
require that relatively unobtrusive DBS antennas be screened by expensive
landscaping. A requirement to paint
an antenna in a fashion that will not interfere with reception so that it
blends into the background against which it is mounted would likely be
acceptable. In general, the costs imposed by local regulations cannot be
unreasonable in light of the cost of the equipment or services and the visual
impact of the antenna.

Q: What restrictions prevent a subscriber from receiving an acceptable quality

A: A requirement that an antenna be placed in a position where reception would
be impossible or would be substantially degraded would conflict with the rule.
However, a regulation requiring that antennas be placed to the extent feasible
in locations that are not visible from the street would be permitted, if this
placement would still permit reception of an acceptable quality signal.

Q: Are all restrictions prohibited?

A: No, many restrictions are still valid. Safety restrictions are permitted
even if they impair reception, because local governments bear primary
responsibility for protecting public 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, electrical code requirements to properly
ground the antenna, 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. The restriction
cannot impose a more burdensome requirement than is needed to ensure safety. 

Restrictions in historic areas may also be valid. Because certain areas are
considered uniquely historical and strive to maintain the historical nature of
their community, these areas are excepted from the rule. To qualify as an
exempt area the area must be listed or eligible for listing in the National
Register of Historic Places. In addition, the area cannot restrict antennas if
such a restriction would not be applied to the extent practicable in a non-
discriminatory manner to other other modern structures that are
comparable in size, weight and appearance and to which local regulation would
normally apply. Valid historical areas cannot impose a more burdensome
requirement than is needed to ensure the historic preservation goal.

Q: Whose restrictions are prohibited?

A: Restrictions are prohibited in state or local laws or regulations,
including zoning, land-use or building regulations, private covenants,
homeowners' association rules or similar restrictions relating to what people
can do on land within their exclusive use or control where they have a direct
or indirect ownership interest in the property.

Q: If I live in a condominium where the land and the roof are commonly owned,
or in an
apartment building where the landlord owns the land and the roof, does this
rule apply to me?

A: A Further Notice of Proposed Rulemaking has been adopted by the Commission,
to obtain
comments from interested persons about whether rules should apply in these
situations. The
Commission will use those comments to reach a decision on this question.

Q: What types of antennas are covered?

  1.A "dish" antenna that is one meter (39") or less in diameter or is located
in Alaska and is
    designed to receive direct broadcast satellite service, including direct-
to-home satellite       service.

  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). Such antennas may be    mounted on "masts" to reach the height needed to
establish line-of-sight contact with the        transmitter. Masts  higher than 
feet may be subject to local permitting requirements.

  3.An antenna that is designed to receive television broadcast signals. Masts
higher than 12  feet may be subject to local permitting requirements. 

Q: What can a local government, association, or consumer do if there is a
dispute over
        whether a particular restriction is valid?

A: If the local authority defines the restriction as safety-related it is
valid, unless a court or the
        Commission determines that it is not safety-related or is not the least
burdensome way to       ensure the safety goal. If a local government or
association has "highly specialized or  unusual" concerns about antenna
installation, maintenance or use, it may apply to the   Commission for a waiver
of the rule, to have its restriction declared valid. Interested parties         
petition the Commission or a court of competent jurisdiction for a ruling to
determine       whether a particular restriction is permitted or prohibited 
this rule.

Q: Who is responsible for showing that a restriction is enforceable?

        A: When a conflict arises about whether a restriction is valid, the
government or   association trying to enforce the restriction will be
responsible for 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 local government or association to prove that the     restriction is
permitted under the rule or that it qualifies for a waiver. 
Q: Who do I call if my town or neighborhood association is enforcing an
invalid restriction? 

A: Call the Federal Communications Commission at (202) 418-0163. Some
assistance may  also be available from the direct broadcast satellite company,
multichannel multipoint         distribution service or television broadcast 
whose service is desired.

                                    - FCC -

I'll be happy to sent you copies of the Report & Order, as well as copies of
some of the recent preemption orders by email if you need.  For others on
TowerTalk, please don't reply or ask questions by quoting this whole message,
thereby saving us all from re-reading this again.
Questions gladly answered by direct e-mail.   

FAQ on WWW:     
Administrative requests:

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