Dear Kelly,

I am in an HOA of free-standing homes. Our CC&Rs require that satellite dishes cannot be visible from common areas or HOA streets. Yet, several members have installed small dishes, less than 36” across, on their own property, visible from common areas and HOA streets. I registered my complaint, but the management company maintains that FCC regulations stipulate that they are allowed and that FCC regulations supersede CC&Rs and that our CC&Rs are outdated.

What is the current situation regarding FCC regulations in this matter?

A.D., San Diego

Dear A.D.,

The FCC “Over The Air Receiving Devices (OTARD) Rule” and California Civil Code Section 4725, protect the right of residents to have satellite dishes not more than one meter (OTARD rule) or 36 inches (Civil 4725) in diameter. The state law allows restrictions based on visibility but the FCC rule does not allow such restrictions. Under the Constitution’s Supremacy Clause, the FCC regulation controls, so dishes can be visible. Therefore, your HOA’s visibility restriction standard might be invalid, and that may be why the other owners have installed visible antennae. Hopefully, your association’s legal counsel has been consulted and has weighed in on this issue, and that is why the Board is not enforcing the antennae visibility ban in the CC&Rs.

Under the current satellite television technology, disputes about dishes seem to be less frequent, maybe because they now are significantly smaller (typically eighteen inches across).

Thanks,
Kelly

Kelly,

My HOA has a CC&R section proscribing outdoor antennas (other than those satellite dishes covered by the federal mandate). I assume that what legitimately concerns the HOA are large TV antennas and the large tower antennas often used by some CB radio and amateur radio operators, which are highly visible. Amateur radio antennae need not be eyesores. I am an amateur radio operator who in the past has used antennas not visible from the street. Amateur radio provides the ONLY reliable means of communication during major disasters, so amateur radio plays a vital role in the community.

How can I work constructively with a board that adopted such an unreasonable regulation?

Sincerely,

W.M., Eastvale

Dear W.M.,

Some uncertainty exists about restrictions on larger non-dish antennae in HOAs, (not protected by the OTARD rule) so H.R. 1301 was introduced in 2015. Called the “Amateur Radio Parity Act of 2016,” it sought to protect amateur radio operator installations. The bill died in the Senate, was reintroduced in 2017 and died again, and has been reintroduced as 2019’s H.R. 466. The uncertainty on this subject may be unresolved for the near future. A primary function of homeowner associations is to protect the community’s appearance so it is not surprising they would try to control installations.

You indicated that this ban is contained in the association CC&Rs. That may limit the board’s flexibility, because the board may not ignore the CC&R language in favor of a more “sensible” approach. This was the board’s mistake in Ekstrom v. Marquesa, in which a board decided that the CC&Rs restriction on tree height did not apply to palm trees, only to be told by the appellate court they were wrong. If the problem is the CC&Rs and enough neighbors agree, seek amendment by membership vote.

Best,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Principal of Richardson|Ober PC.

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