electromagnetic radiation

Federal law trumps your CC&Rs. Harold

As directed by Congress in Section 207 of the Telecommunications Act of 1996, the Federal Communications Commission adopted the Over-the-Air Reception Devices (“OTARD”) rule concerning governmental and nongovernmental restrictions on viewers' ability to receive video programming signals from direct broadcast satellites ("DBS"), broadband radio service providers (formerly multichannel multipoint distribution service or MMDS), and television broadcast stations ("TVBS").

The rule (47 C.F.R. Section 1.4000) has been in effect since October 1996, and it prohibits restrictions that impair the installation, maintenance or use of antennas used to receive video programming. The rule applies to video antennas including direct-to-home satellite dishes that are less than one meter (39.37") in diameter (or of any size in Alaska), TV antennas, and wireless cable antennas. The rule 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.

Effective January 22, 1999, the Commission amended the rule so that it also applies to rental property where the renter has an exclusive use area, such as a balcony or patio.

On October 25, 2000, the Commission further amended the rule so that it applies to customer-end antennas that receive and transmit fixed wireless signals. This amendment became effective on May 25, 2001.

The rule applies to individuals who place antennas that meet size limitations on property that they own or rent and that is within their exclusive use or control, including condominium owners and cooperative owners, and tenants who have an area where they have exclusive use, such as a balcony or patio, in which to install the antenna. The rule applies to townhomes and manufactured homes, as well as to single family homes.

The rule allows local governments, community associations and landlords to enforce restrictions that do not impair the installation, maintenance or use of the types of antennas described above, as well as restrictions needed for safety or historic preservation. Under some circumstances where a central or common antenna is available, a community association or landlord may restrict the installation of individual antennas. The rule does not apply to common areas that are owned by a landlord, a community association, or jointly by condominium or cooperative owners where the antenna user does not have an exclusive use area. Such common areas may include the roof or exterior wall of a multiple dwelling unit. Therefore, restrictions on antennas installed in or on such common areas are enforceable.

I'm no attorney, but here's something to consider. Many times in court cases a judge may interpret a law or situation using either the 'spirit of the law' or a reasonableness test...In other words, what would a reasonable person do or how would a reasonable person interpret the law.

I think you can use the same test in this case. What was the rule meant to accomplish and how would a reasonable person interpret it?

So, let's have a look: " No antenna or other device for the transmission or reception of television or radio signals, or any other form of electromagnetic radiation shall be erected, used or maintained outdoors on any lot, whether attached to a building or otherwise."

I think the key is "outdoors on any lot" and this indicates simply that they don't want transmission equipment or antennas on the lots. I don't think it's reasonable to assume that the writers meant by the word 'used' that people could not use a car radio, door opener, portable radio, or other electronic device.

All laws and rules are subject to interpretation.

I'd have to check my science books, but sound is not technically EMR is it? It's just a physical wave in the air. So the dog device and boom box don't fall under this rule. However, you may have a nuisance rule in your CCRs that would apply to both.

Another way to look at those items would be to require the neighbors handle it among themselves and even involve the police as needed (disturbing the peace, etc) before involving the HOA Board. Tell them you will enforce barking dog rules and other nuisance rules when they present police reports to give you the proof to enforce. You are not the community peacekeeper, policeman or all around dispute handler. And with the limited involvement from the community, you can't enforce every little infraction anyway and would you really want to? You will be burnt out before you even begin.

When people start painting their homes flourescent pink, putting up 30 ft TV antennas or topping their fences with prison wire then yes, enforce the rules right away :-) Just kidding with a little exageration here, but you see the point. Stick with the spirit of the rules and focus on the big stuff that brings a community down when not enforced.

You really should consider hiring a professional to help you out. Either the community volunteers time or pays for that time to come from somewhere else. Remember that it's not just the writing of checks and other clerical labor. A good MC will also keep you out of trouble as well. There is new HOA legislation coming out yearly, plus with collections you run in other laws that can carry stiff penalties if not followed. You also have to consider liability, insurance needs, reserve planning, legal interpretation of CCRs, hiring good contractors and a host of other items. Why go it alone?