The FCC released an order clarifying the installation of satellite dishes and antennas on townhome roofs on September 29, 2003. As you most likely know by now, the FCC adopted the OTARD Rule which prohibits restrictions that impair the ability of an antenna user to install, maintain or use certain antennas on property within the exclusive use or control of the use where the user has a direct or indirect ownership interest.

Philip Wojcikewicz petitioned the FCC for a declaratory ruling to determine whether the restrictions adopted by his townhome association were valid. The association required prior approval for installing a satellite dish on the roof. The petitioner argued that he owned his lot and the roof and that he had exclusive use of the roof. The association, however, contended that it only restricted installation of antennas on common areas, and that the roof was part of the common area because it adjoined other townhome roofs and was maintained by the association.  Since the roof is common area, the OTARD Rule does not apply, according to the association’s argument. The association further argued that allowing an owner to install an antenna on the roof would be a taking under the Fifth Amendment to the U.S. Constitution.

The FCC noted that even if a roof is a restricted access area, the scope of possession is set forth in the controlling documents, such as the deed and the association’s declaration. Those documents indicate that the Petitioner owns his lot and home. The definition of home exterior specifically included the roof and the declaration gives the Petitioner the exclusive right to use and enjoy his home and the home exterior. As a result, the FCC found that for purposes of the OTARD rule, the Petitioner has a property interest in the roof because it was expressly designated for his exclusive use. Since the OTARD Rule requires either exclusive use or exclusive control of the roof in which he has an ownership interest, it applied in this case. The association, therefore, could not prohibit installation of an antenna.

The FCC further noted that, even though the Petitioner does not have exclusive control over the roof because of the association’s maintenance obligations and easements, this obligation does not eliminate an antenna user’s rights under the OTARD Rule. Also, since the Petitioner has a property interest in and exclusive use of his roof, the takings clause of the Fifth Amendment does not apply.

 
Practice Pointer:

There is a common misconception in townhome communities that the association owns the roof because it is responsible for its maintenance and, frequently, its insurance. When drafting antenna restrictions, the association must understand the differences between condominiums and townhomes and the ownership and exclusive use issues. Drafting antenna restrictions which comply with all of the FCC requirements is complicated. Therefore, we recommend having your legal counsel draft the restrictions or, at the least, review them.