FCC takes aim at city planners, HOAs, landlords with new wireless preemptions

2 April 2019 by Steve Blum
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Wireless broadband hub

More federal preemptions of property ownership and local oversight of permits for wireless facilities are on the way. The Federal Communications Commission is scheduled to vote later this month on starting the process of rewriting its interpretation of federal law regarding home antennas.

The rule in question is inelegantly known as OTARD – over the air reception devices. The law behind the rules was originally intended to allow homeowners and renters to install small satellite dishes for, say, DirecTv or DISH. Over the years, it expanded to include other consumer gear such as broadcast TV and fixed wireless broadband antennas.

Now the FCC wants to turn the rule inside out, and make it apply to property occupied by mobile carriers and wireless broadband providers, and to equipment that’s not normally reckoned to be consumer devices. In other words, take a law and a rule that was written to allow consumers latitude to install (relatively) small antennas on their homes, and use it to give wireless companies a free pass to install anything they want within the one meter limit, anywhere they want, so long as they’re already own or, more commonly, are leasing the site.

The FCC’s draft notice of proposed rule making falsely spins the changes as correcting an earlier misinterpretation…

Should the Commission clarify that it will interpret “antenna user” to include fixed wireless service providers? For example, if a fixed wireless service provider leases space for a hub antenna on private property, should the Commission clarify that the service provider becomes the “antenna user” with respect to that property? Would doing so be necessary to ensure that fixed wireless providers are able to take advantage of an expanded OTARD rule?…Should the Commission revise this provision to delete the word “customer”? Is doing so necessary to ensure that the rule applies to hub and relay antennas?

The way it works now, if a homeowner wants to install a satellite, broadcast or broadband receiving antenna there’s no need to get a permit or ask permission from a city planning department or a homeowners association, so long as it’s no more than one meter across. Some regulations, such as electrical and safety codes and minimal concealment requirements might still apply, but the right to install a dish or other antenna is sacrosanct. The same privileges apply to a renter: a landlord might be able to dicker about placement, but can’t ban dishes or other types of antennas.

On the other hand, wireless companies generally need permits to install cell sites – small or large – and other network infrastructure on private property. It’s also common for leases to include specifications for what’s to be installed. That’s a particular concern when a wireless company leases space on top of a roof or at a mountaintop site which hosts many providers’ equipment.

Any new rules are still months away. Before anything is finalised, there will be ample opportunity to file comments. But on the evidence of two recent and contentious proceedings – net neutrality and preemption of public agency ownership of poles – the republican majority at the FCC has already made up its mind and is simply giving notice of its intent.

My clients are mostly California cities, as well as some private communities, all of whom are directly affected this case. I’m not a disinterested commentator. Take it for what it’s worth.