Satellite Dishes

Our MC just notified the BOD that several homes have satellite dishes visable from the public right of way and no architectural review application has been completed for any of them.

Our CC&R's clearly state that the satellite dishes cannot be visible from the front of the house and must be approved by the BOD prior to installation.

The problem: I am the current president, and we have one Board member who has had a satellite dish up for 3 years now (before the initial turnover meeting). He claims it was resolved over a year ago after he received 2 notices from the MC to remove it and then the president at the time approved it.

I haven't received a response from the previous president on whether this was resolved and I don't have any meeting minutes that say anything. The CC&R's only say that the BOD has to approve it.

My thinking is that unless there is a written approval (ie. architectural review application) then he still needs to complete one and have it approved. I don't think the excuse "it's been there for 3 years holds water".

I want to be consistent on this issue, especially since there are several other homes. Thoughts??

Heather:

Here is the problem...if it has been three years then the board and arc have essentially said by default that it is ok. There are states that have a time limit on how long you have as a board to go after these infractions.

I think at this point if it has gone on this long you are too late on the ones that are already up, if you chose to enforce from here on out that is your decision. I just don't think ultimately a court would side with you given the 3 year lag time.

Another issue to think about, HOA's can not prohibit placement of a satelite dish if moving it will adversely affect the quality of their reception. For example, if you make them move it to their backyard or side of the house and they can't get quality reception you can't do that.

Heather & Claudia,

Both of you need to read the FCC rule regarding satellite dish antennas. You can view and download a copy of the Fact Sheet at: www.fcc.gov/mb/facts/otard.html

In a nutshell, the rule says the HOA cannot prevent a homeowner, in a planned community of single family homes, from installing a dish antenna. The board may impose certain restrictions but they cannot cause undue delay, increase in cost or restrict the homeowner from receiving or transmitting an acceptable quality signal. In order to prevent a complaint from being filed with the FCC, the board would be wise to not require prior approval of the dish antenna. They can inform the members of certain restrictions they would like to see followed; however, if those restrictions would prevent the best possible reception, then they do not have to be adhered to. On the other hand, if you live in a condo assn, the homeowner can be denied if he wants to mount the antenna on a common element. The rule only applies if the antenna is installed wholly within the exclusive use area, such as the balcony or patio.

Heather,

I don't know how you can say "satellite dishes can be placed at the back of the house without any signal interference in our neighborhood", unless every house in your neighborhood faces the same direction - exactly! There aren't any trees anywhere to block a signal either! The fact that some h/o's have installed dish antennas w/o first getting approval is a moot point. Keep in mind the fact that any h/o who has installed a dish antenna in an area not to the liking of the board only has to have the provider state it's the best location for him to recieve a signal. The board cannot make that decision; only the provider can.

IMO, the board should just resign themselves to the fact that some homeowners are going to install satellite dish antennas w/o first obtaining approval and some satellite dish antennas are going to be installed at a location other than the back of their house. Just wait until someone wants to install a 10' mast on their roof. You cannot deny that either! From the FCC Fact Sheet: "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)." Get used to it, the FCC rules are Federal law.

Heather IMO wanting the ACC approval violates the undue delay part of the statute. I would rule that section of the CC&R's invalid and refer everyone to the FCC statute. Somewhere in your documents should be a clause that if one section of the CC&R's is found to violate the law then only that section is invalidated not the whole document.

Heather you wrote: Our CC&R's clearly state that the satellite dishes cannot be visible from the front of the house and must be approved by the BOD prior to installation.

I know that if someone turns in an architectural review application and we do not make a decision within 30 days then it is considered approved.

There has never been a request for approval from the BOD on any of these satellite dishes. The board member who received 2 notices and then nothing came of it hasn't completed a request for approval that he can show.

I would prefer to change the CC&R's so we don't have to deal with this, but since it is in there we cannot just ignore it. I wonder if it would be acceptable to have each homeowner complete an application requesting approval and we make a note on each one that it would cause undue cost or cause a poor signal. Then it is on file and a non-issue?

We don't really have the funds nor the participation in our community to change anything in the CC&R's unfortunatley. Maybe a resolution clarifying the rule?

So I hope you'll understand my confusion.

Michele I understand that. However the FCC's own interpretation of the law precludes prior approval as an unreasonable delay so they're going to approve something after it's installed seems a little silly to me but if that's what floats their boat then go for it. Much as we might like it to be otherwise an H/O in a single family dwelling can pretty much put the receiver anywhere on his property that he can best receive a signal. The HOA can only regulate its placement in a specific location if it doesn't interfere with the signal or cause an undue delay or expense to comply.

Heather & Claudia,

Mary gave you very good advice. You should read the Q&A Fact Sheet at the FCC address she gave you. It covers the FFC rule on dish antennas in very clear, easy to understand language. If you would like a copy of the actual rule, it's attched to this post.

To summarise some points raised by others in this thread:

1. You cannot require a homeowner to get approval in advance. That is regarded as undue delay and is not enforceable. To require approval afterward is moot. It's like closing the barn door after the horse got away. What are you going to do? Disapprove the installation after it has been done? Changing the antenna after it has been installed would most likely result in unreasonable cost to the homeowner and couldn't be enforced anyway. You can't order the homeowner to take it down. The only thing you can do is automatically approve every installation, so what's the point?

2. You can place certain restrictions on dish antennas and those restrictions must be followed, but, if the restrictions result in unreasonable cost or if the homeowner cannot get acceptable reception, then the restrictions are unenforceable.

3. If you read the Q&A you will see that the burden of proof is on the association to prove that the restriction is valid. What this means is that, for example, suppose the association says that all antennas have to be in a location that cannot be seen from the street. The homeowner says he can't get reception by following the restriction and has to place the anntenna in a location that can be seen from the street. It is not up to the homeowner to prove that this is so, it is up to the association to PROVE that the homeowner can get reception by following the restriction.

If you read the Q&A and check out some of the links at the bottom which take you to actual cases, you will see that the FCC pretty much puts the homeowner in the driver's seat when it come to dish antennas.

Our community of single-family homes is laid out in such a way that there are almost no homes where a dish antenna can be placed out of sight. They really don't look all that bad to me. One home even has two dish antennas side by side mounted on it. You will also note that the FCC rule doesn't even permit an association to place restrictions on the number of antennas a homeowner can have. If you follow the cases, as I remember it, there's a case where a homeowner had a number of antennas mounted on masts in his yard. The association tried to have the homeowner take them down and leave only one, but, as I remember it, the association finally lost.

Please use the following links to read this at the FCC's website:

The bottom line is that federal law simply trumps a rule the HOA have established and the architectural standards must be reviewed.

http://www.fcc.gov/mb/facts/otard.html

Here are two more links that pertain to this issue.

http://realtytimes.com/rtcpages/20030813_satellite.htm

http://realtytimes.com/rtapages/20041228_dishrestrictions.htm

The bottom line is that federal law simply trumps a rule the HOA have established and the architectural standards must be reviewed

Brad, I have, in fact, addressed that here:

" By the way, in Kentucky there IS not time limit for enforcement of a violation. We also don't have an automatic approval if approval isn't granted in XX number of days.

Many states and HOAs are the same. So it's just not accurate to imply that 3 years is too late to enforce against a violation.

We are in the process of just that situation right now. The violation is actually 4 years old. It was not discovered until last year (at which time it was 3 years old). It took us about 8 months of back and forth letters and getting an attorney involved, but the violation is in the process of being rectified. Their deadline is June 10. The rectification is almost complete so they will be "legal" way before the deadline. "

Also, the requirement of the approval, as long as it is in the deed restrictions, is NOT a "moot point."

It is, however, a formality that, until they get the verbiage changed, would be in their best interests to continue doing.

The "approval" may only require a templated language deferring the the FCC regulations "approving through waiver" of the satellite dish placement approval requirement" so that they can show that they do, in fact, enforce all deed restrictions equally.

We don't require approval for satellite dish placement OR installation, so we wouldn't do that. But if our documents required us to do it, we would comply by having the homeowner fill out the document and us keeping it on file that we have complied with the CC&Rs.

It seems silly. But as you all frequently point out, what does it hurt if it allows you to CYA during any potential selective enforcement litigation on other CC&Rs.

Good point, Brad. There is a doctrine of law called "laches", which pertains to an ". . .undue delay in asserting a right or privilege - compare to statute of limitations". This could be the basis of a lawsuit were the BOD to try to enforce a violation that goes back several years.

MichelleD,
I understand your point about the formality however, if the homeowner doesn’t want to request a waiver federal law is on his/her side. I'm all for closing the loophole. The BOD should act fast to amend the CC&R.

Michele:

I would be curious to see what a judge would say about something that hadn't been enforced for over 3 plus years. Roger is eerily silent, but I thought he had mentioned in Colorado if the process isn't started within a year then the board is out of luck. Of course each state is different.

Folks Florida just passed a bill House Bill 679 that states no paperwork required for a Satelite Dish and no HOA can prevent the placement of it. They used 3 pages to talk about it and American Flags as well as MIA and State Flags. Finally some sense arises from the dust.

John,
Could you please copy and paste that here for us(679 part on sattelite dishes) or give me the exact site? Thanks!

This FCC law has been in effect since I believe 1996; yet current CC&Rs (mine included) still address this issue as if it didn't exist; by copying boilerplate, unenforceable rules governing these dishes, instead of writing the correct method under which associations CAN control these dishes.
I don't think it unreasonable for an association to require an ARC request just to be certain the dish is correctly installed. If in an unapproved location, the member should have to prove the reception would be affected, and not just being the easiest way for the installer.
By now, everyone should be aware of this FCC rule, yet we are still discussing it 12 years later.

I am in Florida and we are having the problem now.I have no quams about having the dish but only the placement of it on the home...we are a 216 planned community of single homes.Two people just put up doshes and one looks rediculous! 4 feet or more high, and visable from road. This man has been a menace since he moved in.Where can I find that bill 676?

Harold,

You should read the FCC Q&A and the case histories available on the FCC website.

1. The FCC has ruled, repeatedly, that requiring approval is unreasonable delay and is not enforceable.

2. HOA's cannot justify requiring Architectural review to insure antennas are installed correctly. The HOA must supply the owner with installation guidlines or requirements (and they can only pertain to safety considerations, and the HOA has to specify what they are. One HOA tried to make their safety requirements general; they got shot down - 3 times! Most HOAs don't have AC members qualified in this area. You would need to hire an engineer.).

3. If the antenna is installed in an unapproved location, the HOA cannot require a homeowner to prove that is the only place he can get reception. To the contrary, the FCC has repeatedly ruled that the burden of proof is on the HOA that the restriction is valid. The HOA has to PROVE that the homeowner CAN get acceptable reception in the approved location. And, with satellite signals, which are digital, signal strength measurements aren't enough.

4. "The antenna was put in an unapproved loaction because it was the easiest way for an installer" is not an acceptable argument for an HOA either. The easiest way is often the least expensive way, and an HOA cannot require a location that results in an unreasonable cost. Thus, if it's less expensive for a homeowner to put a dish in an unapproved location than in an approved location, the FCC says the owner can do it. The HOA restriction is unenforceable, and the HOA has to prove otherwise.

The URL for the FCC Q&A is given in an earlier post in this thread.

Donna,

I believe Laverne may be referring to a dish that is mounted on a mast. The FCC rule does permit a dish to be mounted on a mast, as long has it is not more than 12 feet over the roof. A four-foot mast would be in compliance.

Also, John had referred to "House Bill 679." To me, that means a bill being considered by the legislature, not a law or an act that has been passed. That may be why you are having trouble finding it. From my experience in watching the legislative process almost daily (not in Florida, though), most bills never make it all the way through. You can probably search your state government website for bills being considered, and maybe pull up the current status. I know I can do that here in CT. I think some people get confused and think that a bill is the same as a law. It's not. I know John said the bill had passed, but if it has, you should be able to find that out. Maybe it passed one house but not another.

Harold,

I don't know that it's necessary to amend the CCRs to remove a prohibition against satellite dish antennas. It should be understood that Fed law trumps the CCRs. But I would recommend adopting a resolution outlining the FCC rule and including any restrictions the HOA might want to put on placement but also inform the members these restrictions cannot be inforced if they place undue delay or cost on installation. Some of the posters here were concerned with the fact that their CCRs require prior approval and if approval is not given for the antenna someone might claim selective enforcement. I don't agree with that, but, of course, that's neither here nor there.

The rule is still the same regarding common areas which may make it hard for a condo owner to mount a satellite dish antenna.

Michele,

Well all I can say is if you feel this strongly then your board should request that an approval be completed, even if it is after the fact. I'm not saying the board cannot do that, all I'm saying is that requiring a prior approval would cause undue delay which is an outright violation of the FCC rule. However, the board wants to handle this to ensure they have proper documentation in their records while still ensuring there is no undue delay is certainly OK. As the saying goes, "whatever floats your boat". LOL Frankly, even though I called it "busy work", I do admire a board, such as yours, that is very concerned about always doing things IAW the gov. docs. As we've all heard just on this forum, there are many out there who don't.

I guess the only reason I am "hung up" on the documentation is because it wasn't documented prior to me becoming president and has now caused a lot of unnecessary research on the issue.

I want documentation for several reasons:

*protect the HO later if it ever comes up by a future BOD.
*protect the BOD from complaints that we are ignoring CC&R's.

I think documenting it now will save a lot of time and headaches later on. I know it sure would have saved me some time!!

Our CCR written in 2000 says:

"No outside television aerial or radio antenna, satellite dish, or other aerial or antenna for either reception or transmission, shall be maintained upon the Property except that such aerials or antennae may be erected and maintained within the dwellings located upon the Property. Notwithstanding anything contained herein to the contrary, a satellite dish or disk no larger than twenty-four (24) inches in diameter may be installed and maintained on a Lot and outside of a dwelling, so long as such dish or disk is screened and otherwise hidden so it cannot be seen from any adjacent Lot or street.”

If I read the rule (and FAQs) correctly I’m proposing the following for our guideline document and would appreciate any feedback about its acceptability or not.

“In accordance with FCC regulations (47 CFR 1.4000) a satellite dish or antenna, as defined by the rule, does not require application/approval prior to installing. The FCC rule also doesn’t limit the placement of antennas. However, each homeowner is reminded that although there are no restrictions on placement of dish antennas, it is NOT the installers “job” to protect the value of the association. Each homeowner is requested to make reasonable attempts to shield the dish from view of public rights-of-way.

The homeowner is required to file the county safety permit with CC for any dish antenna that exceeds 12’ above the roof line.

Television, radio and other aerials are NOT covered by the FCC rule and in accordance with our covenant are NOT allowed.

In addition, no satellite dish can exceed 39” (1 meter).”

I doubt the HOA will plan to file a revision of the CCR or bother with a paper trail as the guideline doc. is published on our web site.

Thanks. Tracy

Brian,

Thanks. I'll strike TV antennas from the guideline. Did the rest of "guideline" sound ok? T

To see what your rights are, under the law, simply go to:

https://transition.fcc.gov/cgb/consumerfacts/consumerdish.pdf

Code of Federal Regulations
Context:
Title 47 - Telecommunication. CHAPTER I - FEDERAL COMMUNICATIONS COMMISSION. SUBCHAPTER A - GENERAL. PART 1 - PRACTICE AND PROCEDURE. Subpart S - Preemption of Restrictions That "Impair" the Ability to Receive Television Broadcast Signals, Direct Broadcast Satellite Services, or Multichannel Multipoint Distribution Services or the Ability To Receive or Transmit Fixed Wireless Communications Signals.

https://www.gpo.gov/fdsys/pkg/CFR-2005-title47-vol1/xml/CFR-2005-title47-vol1-sec1-4000.xml

Installing Consumer-Owned Antennas and Satellite Dishes