The rules regarding the installation or use of satellite dishes in condos, HOAs, and co-ops, even in New York, is governed by the FCC’s regulation commonly known as the Over-the-Air Reception Devices (“OTARD”) rule. This covers governmental and non-governmental restrictions, meaning even those in an Association’s governing documents, on viewers’ ability to receive video programming signals from direct broadcast satellites, broadband radio service providers, and television broadcast stations.
The rule applies to the installation, maintenance, and use of antennas used to receive video programming and prohibits most restrictions that (1) unreasonably delay or prevent installation, maintenance or use; (requiring a unit owner to obtain a permit before installing a satellite would be considered unreasonable delay); (2) unreasonably increase the cost of installation, maintenance or use (the Association cannot require that a unit owner may additional fees in order to install a satellite dish; or (3) preclude reception of an acceptable quality signal.
While it may seem, at first glance, as though the Association has no authority to restrict or prohibit satellite dishes, a closer reading of the law shows a different story. First, it is important to keep in mind that the rule only applies to areas that are within an owner’s unit as well as those areas where you have exclusive control. Some examples of exclusive use areas include the balcony, patio, and deck. Any restriction on antennas and satellite dishes that pertains to the common areas of the Association are valid and enforceable. Common areas include those areas that are owned by the Association or jointly owned by the unit owners and the Association. Any of these situations would logically not grant the unit owner exclusive access. One common example of this is that the Association could prohibit installation of dishes that require drilling through the exterior of the building or through the walls in the common areas such as hallways.
Associations in New York should be aware that New York has taken a less strict approach to the FCC’s ruling on the restriction of satellite dishes and antennas. In Board of Managers of Holiday Villas Condominium I v. Bautista, the court held that those areas that are listed as limited common elements in the Master Deed or Declaration are out of the purview of the FCC’s rule. In that case, the unit owner tried to install a dish on his patio which was adjacent to his unit and which he had exclusive control over. But because it was listed as a limited common element in the governing documents, the court found that the unit owner did not technically have exclusive use to the patio and therefore could not seek the protection of the FCC’s rules. The court ultimately ruled that those areas that are common elements or limited common elements are open to restrictions on video programming.
To sum up, a cooperative or condominium has the right to restrict access to the common areas or elements and limited common areas listed in the governing documents, as well as the exterior portions of the buildings and surrounding landscape portions of the community. However, when it comes to areas that are under the exclusive use and control of the unit owner, the Association may not adopt restrictions restricting the installation, maintenance, and use of antennas used to receive video programming.