BACKGROUND  

In 1996, Congress adopted the Telecommunications Act of 1996 which directed the Federal Communications Commission (FCC) to adopt rules governing antennas and satellite dishes. The FCC adopted rules governing “Over the Air Reception Devices” (OTARD). OTARD prohibits restrictions that impair the installation, maintenance, or use of antennas used to receive video programming. Generally, OTARD 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. CAI convinced the FCC that the government could not override community association restrictions as they relate to property not owned by the unit owner without just compensation. As a result, OTARD only applies to restrictions in the unit’s exclusive-use areas. In 2000, the FCC amended OTARD so that it applies to customer-end antennas that receive and transmit fixed wireless signals. For instance, restrictions on customer-end Wi-Fi internet access points are now covered by OTARD.  

The FCC also limits the ability of telecommunications and video programming providers from entering into exclusive contracts that prohibit residents in a community from acquiring services from other providers. The FCC permits, however, community associations to enter into bulk-billing arrangements (where video service is provided to every resident of a community, usually at a significant discount from the retail rate that each resident would pay if he or she contracted with the provider individually) and exclusive marketing arrangements (where a community association gives the provider, usually in exchange for some benefit, the exclusive right to certain means of marketing the provider’s service to residents in the community). The FCC has recognized that benefits of bulk-billing arrangements and exclusive marketing arrangements outweigh the potential harm to consumers.  

The demand for wireless telephonic services and Wi-Fi has grown exponentially. This phenomenon has created a need for additional transmission equipment to service a growing demand and expectation for wireless services. Often, due to the development scheme of community associations and the residential character of many community associations, the only alternative for the placement of transmission devices is on a community association’s open space/common properties or other community-owned assets. The presence of a reliable wireless signal is one of the many considerations that many homebuyers are looking for when purchasing. Community associations that have appropriate access to wireless signals for telephonic and Wi-Fi service will be at a distinct advantage in the home marketplace.  

RECOMMENDATION  

CAI supports legislation and regulation that promotes a fully competitive telecommunications, digital and video programming marketplace. By free and open competition, community association residents, acting through their elected boards, are able to select the most cost-effective and innovative providers to serve their communities. However, community associations should not be unfairly burdened with the cost of promoting a competitive programming marketplace. To that end:  

• CAI encourages federal and state governments and private telecommunications providers to support the development of new technologies to increase access to services without infringing on community association common property or contract rights.  

• CAI opposes legislative proposals that would violate the Fifth Amendment of the U.S. Constitution and prevent a community association from reasonably managing and operating its common property. Part of reasonably managing and operating its common property is the ability of an association to prohibit antennas on common property, and to regulate the location and installation procedure for permitted antennas and related costs.  

• CAI supports the right of community associations to enter into commercially reasonable telecommunications, digital, and video programming contracts with bulk-billing and exclusive marketing arrangements if the associations’ owner-elected representatives prudently determine that they are in the best interest of the association. Such agreements must allow the association to determine the disposition of any wiring and other equipment installed on the commonly owned property by the provider and permit an individual owner to contract with any other provider at that owner’s sole expense.  

CAI supports the reasonable installation of transmission devices including cell towers, mono poles, and other transmission equipment that may be placed on an association’s common property or structures such as buildings, water towers, fire towers, etc., that will provide wireless telephonic and Wi-Fi service to its property owners. The community's architectural or design review committee guidelines should be considered in any installation on common property. CAI is aware that such installations may be controversial and would additionally urge the use of a process of community education and input before embarking upon such installations. CAI also supports the use of appropriate techniques approved by the association to help blend these installations into the surrounding community. 

Approved by the Public Policy Committee, April 22, 1998