EMCOMMWEST 2011

HOAs and Antenna Restrictions : Getting Results

Presented by : Dan Connell

K7QQQ Station Illustration/Design by Chris Morris (http://www.chrismorrisillustration.com/)

(c) 2010 by J. Dan Connell, duplication or use is prohibited. All rights reserved.

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What this presentation covers

FCC Rules concerning Antennas State (NV, CA) Law concerning Antennas HOAs in Nevada (similar for other states) Strategic & Tactical Action Sample CC&Rs that restrict Antennas Where to Focus for Change Q&A Session

Why do you need to know?

Ask any 10 Hams the rules concerning antennas under FCC Rules, State Law, and HOA CC&Rs and you will probably get 10 different answers !

Remember : Correct knowledge is power. Couple correct knowledge with a bit of sound

logic, toss in some careful planning, and you can be a very positive agent for resolving antenna placement in your HOA.

FCC Rules for Antennas

Over the Air Reception Devices (OTARD) FCC PRB-1

OTARD

OTARD (47 C.F.R. Section 1.4000) has been in effect since October 1996, and it prohibits restrictions that impair the installation, maintenance or use of antennas used to receive video programming.

OTARD

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.

OTARD

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. 

OTARD

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. 

OTARD

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.

OTARD Applies To:

A "dish" antenna that is one meter (39.37") or less in diameter 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.

OTARD Applies To:

An antenna that is one meter or less in diameter or diagonal measurement and is designed to receive video programming services via broadband radio service (wireless cable) or to receive or transmit fixed wireless signals other than via satellite.

OTARD Applies To:

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.

OTARD Applies To:

Antennas may be mounted on "masts" to reach the height needed to receive or transmit an acceptable quality signal. Masts higher than 12 feet above the roofline may be subject to local permitting requirements for safety purposes.

The OTARD “Kicker”

According to the FCC rules, OTARD does not cover or include, among other things, AM/FM radio, amateur ("HAM") radio (but see 47 C.F.R. §97.15), Citizens Band ("CB") radio, and Digital Audio Radio Services ("DARS") signals.

OTARD & HOAs

Use OTARD to nullify HOA rules that prohibit installing outdoor antennas for HDTV, for direct-to-home satellite service, or for Internet Services.

FCC PRB-1

PRB-1 is a Federal preemption of State and Local Regulations Pertaining to Amateur Radio Station Antenna Structures.

The PRB-1 Amateur Radio Memorandum Opinion and Order and was released September 19, 1985. The legal cite is 101 FCC 2d 952 (1985) and it is codified in CFR 47 § 97.15.

FCC PRB-1

47 CFR § 97.15(b) Except as otherwise provided herein, a station antenna structure may be erected at heights and dimensions sufficient to accommodate amateur service communications. [State and local regulation of a station antenna structure must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose. See PRB-1, 101 FCC 2d 952 (1985) for details.]

The FCC PRB-1 “Kicker”

The FCC makes it crystal-cut-clear that PRB-1 does not apply to HOA CC&Rs. In footnote (6) of PRB-1, the Commission states:

“We reiterate that our ruling herein does not reach restrictive covenants in private contractual agreements. Such agreements are voluntarily entered into by the buyer or tenant when the agreement is executed and do not usually concern this Commission.”

Antennas & Nevada State Law

Assembly Bill 61 was introduced into the Nevada State Legislature February 1, 2001, by Assemblyman Bob Beers WB7EHN.

The Bill had two parts:

Antennas & Nevada State Law

(1) Incorporate the wording of the limited federal preemption known as PRB-1 into the Nevada Revised Statutes.

Antennas & Nevada State Law

(2) Make "void and unenforceable" any provision in a deed covenant, restriction or condition (CC&R) that "precludes amateur service communications" or "unreasonably restricts the placement, screening or height of a station antenna structure" that might significantly decrease antenna performance or that does not allow for the use of an alternative station antenna "at a comparable cost and with comparable efficiency and performance."

Antennas & Nevada State Law

On Thursday, April 19, 2001 –

The Assembly voted 40-0 to approved AB61.

On Monday, May 14, 2001 -

The Senate voted unanoumously to approved AB61.

Antennas & Nevada State Law

On Tuesday, May 22, 2001, Governor Kenny Guinn signed Assembly Bill 61.

The effective date of the bill was October 1, 2001.

The AB61 “Kicker”

The “make void and unenforceable" CC&R provision was removed from AB61 by the Assembly before passage.

In effect, no new law was created. Nevada law just agrees with the FCC PRB-1 preemption.

California Antenna Law

California Government Code Section 65850.3

“It is the intent of the Legislature in adding this section to the Government Code, to codify in state law the provisions of Section 97.15 of Title 47 of the Code of Federal Regulations..”

In effect, no new law was created.California law just agrees with the FCC PRB-1 preemption.

The Score so Far -

FCC Amateur Antenna Rules v/s HOAs

HAMs: 0 HOAs: 1

State Amateur Antenna Laws v/s HOAs

HAMs: 0 HOAs: 2

But... This does not have to be the final score !

HOAs in Nevada

Let’s talk about HOAs in Nevada (other states are similar) and how you, as a member of an HOA community, can become a positive force for modifying CC&R Amateur Radio Antenna Restrictions.

HOAs in Nevada

HOAs are non-profit corporations subject to the Nevada Uniform Common-Interest Ownership Act. The Act is codified under NRS 116 & NRS 40.600.

HOAs are governed by CC&Rs and under the regulations of NRS 116.

You should obtain a copy of your own CC&Rs and a copy of NRS 116.

Generic HOA Structure

HOA BOARD

Community Manager

Architectural Committee

Parking/Traffic Committee

CrimeWatch Committee

Strategic Planning

•Become involved with your HOA!

•Get to know the Board Members!

•Join a committee!

•Utilize HOA Resolutions to effect change!

Tactical Planning

•Review your CC&Rs!

•Find those CC&R Loop Holes!

•Use CC&R “weasel” words and phrases!

•Make an EMCOMM presentation to the Board!

Sample Antenna CC&Rs

Section 4.6 Antennas. Except as permitted by law or as set forth in the Architectural Committee Rules or the Rules, no antenna or other device for the transmission or reception of television or radio signals or any other form of electromagnetic radiation including satellite or microwave dishes, shall be erected, used, or maintained on any Unit without the prior written approval of the Architectural Committee.

Sample Antenna CC&Rs

Section 4.6 Antennas. Except as permitted by law or as set forth in the Architectural Committee Rules or the Rules, no antenna or other device for the transmission or reception of television or radio signals or any other form of electromagnetic radiation including satellite or microwave dishes, shall be erected, used, or maintained on any Unit without the prior written approval of the Architectural Committee.

Sample Antenna CC&Rs

No antenna for transmission or reception of radio signals shall be erected outdoors for use by any dwelling unit except upon approval of the directors. No radio or television signals or any other form of electromagnetic radiation shall be permitted to originate from any lot which may unreasonably interfere with the reception of television or radio signals upon any other lot.

Sample Antenna CC&Rs

No antenna for transmission or reception of radio signals shall be erected outdoors for use by any dwelling unit except upon approval of the directors. No radio or television signals or any other form of electromagnetic radiation shall be permitted to originate from any lot which may unreasonably interfere with the reception of television or radio signals upon any other lot.

Sample Antenna CC&Rs

No antenna or tower shall be erected upon any lot for the purposes of radio operations.

Where to Focus for Change

•Changing a CC&R is nearly impossible.

•Need 75% of the community to vote “yes” to make a CC&R change (your HOA may vary).

•Changing “rules” via Resolutions is much, much easier.

•Resolutions require a simple majority vote of the HOA Board.

Where to Focus for Change

•Don’t “go-it” alone, join the Architectural committee or run for the HOA board.

•Focus your first efforts within the Architectural committee.

•Create an Antenna Policy Resolution that makes sense for your community.

•Submit your Resolution to the Board along with an EMCOMM presentation.

Do what makes sense !

•Don’t “take a mile” when someone gives you an “inch”….

•Incremental progress is better than no progress. Stay focused on the long term objectives.

•Expect to make reasonable compromises on the kinds and placements of antennas.

•Expect to provide detailed drawings and photos of proposed installations.

Example Resolution

Section 1 - Over-the-Air Reception Devices (“OTARD”)

It is the policy of the Board of Directors to allow the installation and use of antennas and satellite dish receivers within the community as provided by Federal, State, and Local law.

The Architectural Committee is directed to allow the installation of all Over-the-Air Reception Devices (“OTARD”) as defined and specified by the Federal Communications Commission in 47 C.F.R. Section 1.4000.

Example Resolution

Section 2 - Amateur Radio Antennas

The Board of Directors recognizes the importance and essential contribution of Emergency Radio Communications provided by Federally Licensed Amateur Radio Operators as members of the Amateur Radio Emergency Service (ARES) / Radio Amateur Civil Emergency Service (RACES), National Skywarn, Las Vegas Regional SKYWARN, Clark County ARES/RACES, Nye County ARES/RACES, Nevada ARES and Nevada Amateur Radio Repeaters (NARRI).

Example Resolution

Therefore the Board of Directors find that it is in the best interest of the community and the public to allow the installation and use of amateur radio antennas within the community as provided by Federal, State, and Local law, and subject to the requirements in this section.

Toward that end, the Architectural Committee is directed to permit the installation of amateur radio antennas as codified at 47 C.F.R. 97.15(b), subject to the following procedure and requirements:

Example Drawings

Include a detailed drawing of how a “typical” installation should look. Make sure to include ground rods and surge protectors. If possible, take the drawings and have them approved by your county’s Building Permit Department. It adds a lot of credibility to your proposals.

Q & A

Time for the

question and answer

portion of the presentation.