FYI, this is a copy of the email I sent to my HOA. I am on solid ground now!
Hello all,
I have been doing a lot of research since my last email and would like to respectfully suggest that the Cascades Board use the upcoming forum (Public Meeting on Architectural Design Guidelines) to modify the current Design Guidelines (dated 7/2001) with reference to Over-the-Air (OTA) antennas and making them compliant with Section 207 of the Telecommunications Act of 1996 and subsequent rulings by the FCC.
Why this particular attention to this esoteric and minor category of antenna use? Well, I for one am planning for local NTSC, DTV and HDTV reception in my home and am completely unsatisfied with Adelphia cable and various satellite options. Not to mention the overall paucity of advanced telecommunications options that seemed to have bypassed us in Cascades, as I'm sure you all are more than aware of, but that's another story. Plus, it doesn't hurt that you can have a full-bandwidth signal without associated monthly fees while supporting your local broadcasters to boot. If you have a chance to see a TV or HDTV signal from an well-placed and configured OTA antenna, you might be quite surprised. In terms of quality, there is simply no comparison with other options. My feeling is why pay for satellite and cable when freely available high-quality feeds are offered by local broadcasters in the community? In any event, my opinion is not what is important here, it's the facts regarding the situation at hand.
Unlike the ubiquitous satellite dishes favored by many Cascades residents, proper OTA antenna placement and usage clearly conflicts with the Architectural Design Guidelines both as currently written and in spirit as well. There is simply no getting around the fact that for an OTA antenna placement to be effective (in most of Lowes Island in particular, which is at a lower elevation than say, Potomac Lakes), it needs to placed well above the roofline of the home. Unlike a satellite dish which just needs to "see" the southern sky and isn't particularly affected by mounting height, an OTA antenna in our area needs the height and directionality afforded by roof-top mounting. This is especially true with digital broadcasts using the UHF band. These signals are particularly fragile and utterly depend on clear line-of-sight for effective reception. Hence the conflict with directive "G" in the current Design Guidelines (dated 7/2001). Proper OTA mounting contradicts the (seeming) prevailing aesthetic of hiding antennas behind the roofline. Signal strength or a clean roofline? Well, as far as I can see, the FCC to date has clearly ruled in favor of signal strength and homeowners rights in general.
These are the signal reception rules as spelled out by Consumer Electronics Association (CEA). See:
http://www.antennaweb.org/antennaweb/
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There are, however, four basic rules for TV signal reception
that you should keep in mind:
1. Outdoor is generally better.
Outdoor antennas have a better view of the transmitting station, with no building-induced signal loss. They receive less interference from other household electronic/electrical appliances, and they are less likely to receive reflected ghost signals from the building structure.
2. Higher is better.
The higher an antenna is, the more direct signal it can receive from the TV transmitter, while at the same time reducing the reception of interfering signals from other household electronic/electrical appliances and reflected ghost-causing signals from other nearby structures. The higher the better, but any antenna should be at least four feet above the structure to which it is mounted, and ideally above the roofline.
3. Closer is better.
If a position above the roofline is not possible, the antenna should at least be on the side of your building facing the TV signal broadcast tower.
4. Bigger is better.
The larger an antenna, the more signal it receives. This is especially important on channels 2-6, where the longer wavelength requires a larger antenna in order to be efficiently received. Larger antennas also become directional which reduces ghosting caused by reflected signals coming from the side and the rear of the receiving antenna.
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OTA antennas are definitely in use in Cascades, albeit by a small minority of at least 11 homeowners by my latest count and I have the photos to show it. While I do expect that number to increase in the future as quality conscious and high-tech homeowners come to realize the many benefits of using properly configured and aimed OTA antennas, I would never expect a majority of converts among the Cascades population as a whole. Minority or not, my research leads me to see clearly and unequivocally that Cascades residents with OTA antennas have the full weight of US law on their side. To the best that I can see, no wiggle room exists for HOA's in this area to restrict OTA antenna placement and usage. For instance, the outrageous scam some HOA's (not Cascades, thank goodness) have used in the past of claiming the air rights above a home to be "common areas" and precluding OTA antennas on that basis have been resoundingly thrown out by the FCC on at least 3 occasions since 1997. I could not find a single case in the entire FCC database which held in favor of an HOA over the rights of a homeowner with regards to OTA antenna usage and placement.
The 3 FCC cases which seem to be sited often as precedents are listed below. These are the abbreviated versions by the way, if anyone wants the full transcripts, I have them, just let me know:
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NEWSReport No. CS 97-26 CABLE SERVICES ACTION October 14, 1997
CABLE SERVICES BUREAU PREEMPTS RESTRICTIONS ON THE USE OF OVER-
THE-AIR-RECEPTION DEVICES IMPOSED BY THREE HOMEOWNER
ASSOCIATIONS
The Cable Services Bureau has preempted restrictions imposed by three homeowner
associations on the installation and use of satellite dishes, television antennas and wireless
cable antennas. In separate orders deciding petitions for declaratory ruling filed by
homeowners from San Antonio, Texas, Potomac, Maryland and McCormick, South Carolina,
the Bureau found that the restrictions did not comply with the Commission's rule ("Rule")
regarding over-the-air reception devices, which implements Section 207 of the 1996
Telecommunications Act. The Rule prohibits governmental and private restrictions that
impair the ability of antenna users to install, maintain, or use satellite dishes and wireless
cable antennas that are one meter or smaller in diameter and television broadcast antennas
unless justified by safety or historic preservation considerations. These are the first orders
addressing restrictions imposed by homeowner associations. Previously, the Bureau
preempted a Meade, Kansas local ordinance which impermissibly restricted installation and
use of satellite dishes and other antennas covered by the Rule. (In re Star Lambert et al.,
DA-97-1554, released July 22, 1997.)
In the first of the three orders released today, C.S. Wireless (d/b/a/ OmniVision of
San Antonio) petitioned the Commission for a ruling on restrictions imposed by Northampton
Property Owners Association. OmniVision is a multichannel multipoint distribution services
(MMDS) provider of wireless cable service in the San Antonio, Texas area. Wireless cable
antennas operate on line-of-sight contact with the transmitter or repeater. The OmniVision
order (DA 97-2187) holds that Northampton's outright prohibition of externally installed
wireless cable antennas is not justified by either safety or historic preservation and is
prohibited by the Rule.
In the second order, Jay Lubliner and Deborah Galvin, homeowners in Potomac,
Maryland, petitioned the Commission to preempt a restriction imposed by Potomac Ridge
Homeowners Association that prohibits externally mounted television broadcast antennas.
Mr. Lubliner and Ms. Galvin alleged they could not receive acceptable quality reception if
their antenna was installed inside their attic, as required by the Association. In this order
(DA 97-2188), the Bureau finds that the Potomac Ridge restriction against externally
mounted television antennas is prohibited and unenforceable because the Association did not
meet its burden to show that its restriction does not impair reception.
-more-
In the third order, Michael MacDonald, a homeowner in McCormick, South Carolina,
petitioned the Commission for a ruling on restrictions imposed by the Savannah Lakes
Property Owners Association. The MacDonald order rejects Savannah Lakes' assertion that
it is exempt from the Rule because it is near a Paleo-Indian archeological site. The order
(DA 97-2189) preempts Savannah Lakes' permit and prior approval requirements because
they impose unreasonable delay on antenna installation in violation of the Rule. The order
also finds that Savannah Lakes' requirement that antenna users hire an installer solely to
certify that installation in the Association's preferred location would interfere with reception
imposed unreasonable expense. Finally, the order preempts Savannah Lakes' placement
preferences, screening and camouflaging requirements, and its threat to deny community
privileges on the basis that they conflict with the Rule's prohibition of restrictions that
impose unreasonable cost or unreasonable delay or prevent antenna installation, maintenance,
or use unless necessary for safety or historic preservation considerations.
Action by the Chief, Cable Services Bureau, October 10, 1997, by Orders (DA 97-
2187, DA 97-2188, DA 97-2189).
--FCC--
News Media Contact: Morgan Broman at (202) 418-2358
Cable Services Bureau Contacts: Nancy Markowitz, Eloise Gore at (202) 418-7200
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Then there is the FCC FACT SHEET for Over-the-Air Reception Devices Rule dated May 2001. See it at:
http://www.fcc.gov/mb/facts/otard.html
For our purposes, this is the latest FCC ruling and for our area, i.e. Cascades, these are the pertinent revelations:
1.
Homeowners are allowed to have and use OTA antennas, regardless of HOA restrictions to the contrary, as long as they do not exceed 12' above the roofline and do not present a safety hazard, i.e., meeting electrical code, properly grounded against lightning and using accepted workmanship standards.
2.
Other than in historic areas, HOA's are not allowed to require ANY kind of permitting to allow OTA antenna installation and use.
3.
Burden of (any) proof lies with the HOA.
These are pretty strong facts folks and our Design Guidelines need to accept the reality of all this. Case in point, two local HOA's have already amended their rules in just this light.
See the enclosed PDF file "DesignII.pdf" to see what the HOA at Farmwell Hunt did. (You will need Adobe Acrobat Reader to open this document.) A wise and concise choice of wording if you ask me. One that perhaps Cascades can appropriate.
Also, please see the Exeter (Leesburg) Homeowners Association Homeowner Handbook at:
http://www.exeterhoa.com/handbook/handbook.htm#antennas
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EXETER Architectural Review Board Design Guidelines
Antennas/Satellite Dishes
General Considerations & Guidelines
The Telecommunications Act of 1996 has modified Article VI, Section 9 of the Declaration. Antennas and Satellite Dishes not larger than one meter (39") are permitted. Below are the recommendations and guidelines to assist in the placement of an Antenna or Satellite Dish.
All Satellite Dishes must be one meter or less in diameter.
Although roof top Antennas are permitted under the Telecommunications Act, the use of attic Antennas (installed in the attic) is encouraged.
Per FCC recommendations, Antenna and Satellite Dish supports are limited to a maximum of 12 feet above the roof line.
All wiring for Antennas and Satellite Dishes must be properly secured. In some instances wiring may be required to be concealed.
Should Satellite Dishes be produced with color options, the color selections should complement the houses basic colors, following the same guidelines as exterior painting. Otherwise, the color should remain as originally purchased; neutral tones, black, gray, tan.
There should be no commercial advertising on the Satellite Dish itself, other than the brand name.
Based on the required positioning to receive transmissions, Antennas/Satellite Dishes should be placed in an inconspicuous location, and should not be placed in areas where it would constitute a safety hazard.
Antennas/Satellite Dishes must be placed on the homeowners property, not in any common areas.
Submission Requirements
In accordance with FCC Regulations, no prior approval is required. However, Antennas/Satellite Dishes must follow above guidelines and meet any and all FCC requirements under the Telecommunications Act of 1996.
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This wording also works for me.
Now if all of this hasn't convinced you yet, I would like to call your attention to one more PDF document I am enclosing here as an attachment. It is entitled "FCCQ&A.pdf" and was brought to my attention by the fine folks at:
Community Associations Institute (CAI)
http://www.caionline.org/
Anyway, CAI suggested I contact a particular law firm in Colorado:
Orten & Hindman
11901 W. 48th Avenue, Wheat Ridge, Colorado 80033-2166
(ph) (303) 432-9999 or (800) 809-5242 (fax) 432-0999
Now it seems that Orten & Hindman is one of the preeminent Law Firms specializing in the area of Community Association Law. I'm told that most any Community Association Professional would know of the firm. In any event, they are the author of the enclosed "FCCQ&A.pdf" document which is specifically written for HOA's to revise their Design Guidelines for antennas and gain compliance with Section 207 of the Telecommunications Act of 1996 and subsequent the rulings by the FCC.
I suggest each Board member read this document, it is only 8 pages long and concise. It essentially restates what I have been saying all along, but I include it here as a relevant legal reference and a unbiased source of expert information to aid in decision making.
