Most of us know that a condominium association’s ability to restrict the installation of satellite dishes was severely limited by the passage of the 1996 Telecommunications Act, and the regulations promulgated by the Federal Communications Commission (FCC). No longer can the typical bylaw prohibition against them be broadly applied. But does that mean the association is without any ability to control them? No, but great care must be exercised.

First, it must be determined whether the satellite dish is covered by the Act and regulations. Most residential-user satellite dishes of one meter or less in diameter (and TV broadcast antennas regardless of size) are protected.

Then, whether the installation is covered by the current regulations depends upon where it is installed. In August 1996, the FCC issued its regulations concerning the installation of such devices on property individually owned or areas over which an owner has exclusive use or control rights (these would include limited common elements such as balconies, porches or patios in the typical condominium, or perhaps the entire site in a site condominium). If the satellite dish falls within this category the ability of an association to regulate it is very limited. Any limitation which unreasonably delays the installation of the dish, increases its cost or precludes the reception of an acceptable signal is deemed an impairment and is prohibited.

The FCC has been very aggressive in enforcing its regulations. It has held that any prior application process is an unreasonable delay and is invalid. It is yet unclear the extent to which an association could require the screening of a dish, but the language of the regulations would seem to prohibit any screening which is unreasonably expensive in relation to the cost of the installation of the satellite itself. There are a few exceptions to the restrictions, but they are likely to be strictly applied by the FCC. Such exceptions include restrictions to preserve a historic district or restrictions based on safety.

If the satellite dish is to be installed on commonly owned property, such as general common elements, there is currently no limitation on condominium restrictions. Thus, an association can continue to prohibit their installation on general common element property. Is was anticipated that the FCC would finalize its regulations during 1997, but that still has not occurred, and there is no projected date from the FCC. Thus, we are left to wait and wonder what the FCC will do next.

In the meantime, we must consider how to deal with satellite installations. Obviously, if the co-owner is seeking to install the dish on their limited common element, our options are few. Can we require that it be located in a certain area of the limited common element so as to be as unobtrusive as possible? Perhaps, so long as it doesn’t unreasonably increase the cost or affect the signal. Can we require prior

notice of the co-owner’s intent? Maybe, but remember that the FCC has ruled unenforceable any application process. Until the FCC directs to the contrary, can we absolutely prohibit the installation of dishes on common elements? Probably, but should we? If we amend our current restrictions and they become unenforceable by later FCC regulations, they will have to be changed. But if we do nothing now, and co-owners install them anywhere and any way they wish, can we required them to relocate if the FCC allows us to do so in the future? And, the FCC is arguing that any existing rule that flatly prohibits the installation of a dish or antenna is invalid, and so perhaps all rules should be amended.

All of these issues should be carefully considered by each association, with the guidance of legal counsel. Otherwise, we could face legal challenges from a co-owner or the FCC, or allow a hodgepodge of all types of reception devices. Remember, this is an evolving area of federal regulation, and only time will tell the extent of our ability to restrict them.