# DA-09-1675: RICHARD RHOAD (07/29/09): RICHARD RHOAD

> Federal · Rulings · In force

URL: https://www.frixlaw.com/law-library/statutes/FCC_DA_09_1675

## Section

- **Citation:** DA-09-1675: RICHARD RHOAD (07/29/09)
- **Heading:** RICHARD RHOAD
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** FCC Declaratory Rulings / RICHARD RHOAD

## Text

Federal Communications Commission DA 09-1675
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of:
Richard Rhoad
Petition for Declaratory Ruling
Under 47 C.F.R. � 1.4000
)
)
)
)
)
)
)
CSR 7862-O
DECLARATORY RULING
Adopted: July 28, 2009 Released: July 29, 2009
By the Acting Chief, Media Bureau:
I. Introduction
1. Petitioner Richard Rhoad ("Petitioner") filed a Petition for Declaratory Ruling ("Petition")
seeking a determination that the antenna restrictions of the Villas at Highland Lakes Board of Trustees
(�Board�), Westerville, Ohio, are prohibited by the Commission's Over-the-Air Reception Devices Rule,
47 C.F.R. � 1.4000 ("Rule").1 The Board filed a response to the Petition, and DIRECTV and Dish
Network LLC (�Dish�) filed joint comments. The Petitioner filed a reply as did DIRECTV and Dish.
In addition, after the pleading cycle ended, the Board requested leave to file an additional response to
which the Petitioner replied.2 For the reasons discussed below, we grant the petition in part and deny in
part the Petitioner�s request.
II. Background
2. The Rule, which prohibits governmental and private restrictions that impair the ability of
antenna users to install, maintain, or use over-the-air reception devices3 was adopted by the Commission

1Section 1.4000(e) provides that parties may petition the Commission for a declaratory ruling under Section 1.2 of
the Commission's rules to determine whether a particular restriction is permissible or prohibited under the Rule.
47 C.F.R. � 1.4000(e).
2 In the interest of developing a complete record, we will consider both of these additional filings.
3See Preemption of Local Zoning Regulation of Satellite Earth Stations and Implementation of Section 207 of the
Telecommunications Act of 1996; Restrictions on Over-the-Air Reception Devices: Television Broadcast Service
and Multichannel Multipoint Distribution Service, IB Docket No. 95-59 and CS Docket No
st of developing a complete record, we will consider both of these additional filings.
3See Preemption of Local Zoning Regulation of Satellite Earth Stations and Implementation of Section 207 of the
Telecommunications Act of 1996; Restrictions on Over-the-Air Reception Devices: Television Broadcast Service
and Multichannel Multipoint Distribution Service, IB Docket No. 95-59 and CS Docket No. 96-83, Report and
Order, Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking ("Report and Order), 11 FCC
Rcd. 19276 (1996) (consolidated), on reconsideration, 13 FCC Rcd. 18962 (1998) ("Order on Reconsideration"),
Second Report and Order, 13 FCC Rcd. 23874 (1998) ("Second Report and Order"). The Rule became effective on
October 14, 1996. Public Notice DA 96-1755 (Oct. 23, 1996).
Federal Communications Commission DA 09-1675
2
to implement Section 207 of the Telecommunications Act of 1996 (the "Act").4 This provision was
intended to advance one of the primary objectives of the Communications Act of 1934: "to make
available, so far as possible, to all the people of the United States . . . a rapid, efficient, nation-wide, and
world-wide wire and radio communication service with adequate facilities at reasonable charges. . . ."5
3. The Rule applies to antennas that are one meter or less in diameter, or any size in Alaska,
and are designed to receive or transmit direct broadcast satellite services; antennas that are one meter or
less in diagonal measurement and are designed to receive or transmit video programming services
through multipoint distribution services, including multichannel multipoint distribution services,
instructional television fixed services, and local multipoint distribution services; and antennas designed
to receive television broadcast signals.6 For the Rule to apply, the antenna must be installed "on
property within the exclusive use or control of an antenna user where the user has a direct or indirect
ownership or leasehold interest in the property
multipoint distribution services,
instructional television fixed services, and local multipoint distribution services; and antennas designed
to receive television broadcast signals.6 For the Rule to apply, the antenna must be installed "on
property within the exclusive use or control of an antenna user where the user has a direct or indirect
ownership or leasehold interest in the property" upon which the antenna is located.7 The Rule does not
apply to restrictions on installations in common areas.8 The Rule provides that a restriction impairs
installation, maintenance, or use of a protected antenna if it: (1) unreasonably delays or prevents
installation, maintenance, or use; (2) unreasonably increases the cost of installation, maintenance, or
use; or (3) precludes reception of an acceptable quality signal.9 There are exceptions to the Rule for
restrictions necessary to address valid and clearly articulated safety or historic preservation issues,
provided such restrictions are as narrowly tailored as possible, impose as little burden as possible, and
apply in a nondiscriminatory manner throughout the regulated area.10
4. The Rule provides that parties who are affected by antenna restrictions may petition the
Commission to determine if the restrictions are permissible or prohibited by the Rule.11 The Rule places
the burden of demonstrating that a challenged restriction complies with the Rule on the party seeking to
impose the restriction.12
II. Discussion
5. The Petitioner seeks a ruling that he can install his satellite dish antenna in his driveway or
in certain areas adjacent to his condominium unit because those areas are reserved for his exclusive use

4 Section 207 requires the Commission to "promulgate regulations to prohibit restrictions that impair a viewer's ability
to receive video programming services through devices designed for over-the-air reception of" certain enumerated
services. Telecommunications Act of 1996, Pub. L. No. 104-104, � 207, 110 Stat
his condominium unit because those areas are reserved for his exclusive use

4 Section 207 requires the Commission to "promulgate regulations to prohibit restrictions that impair a viewer's ability
to receive video programming services through devices designed for over-the-air reception of" certain enumerated
services. Telecommunications Act of 1996, Pub. L. No. 104-104, � 207, 110 Stat. 56, 114 (1996).
5Communications Act of 1934, � 1 as amended, 47 U.S.C. � 151.
647 C.F.R. � 1.4000(a). In October, 2000, the Commission amended the Rule to apply also to antennas that are used
to receive and transmit wireless Internet signals. Promotion of Competitive Networks in Local Telecommunications
Markets, Wireless Communications Association International, Inc. Petition for Rulemaking to Amend Section
1.4000 of the Commission�s Rules to Preempt Restrictions on Subscriber Premises Reception or Transmission
Antennas Designed to Provide Fixed Wireless Services, First Report and Order and Further Notice of Proposed
Rulemaking, 15 FCC Rcd 22983 (2000).
747 C.F.R. � 1.4000(a)(1).
8 Second Report and Order at para 62.
947 C.F.R. �1.4000(a)(3).
1047 C.F.R. � 1.4000(b).
1147 C.F.R. � 1.4000(e).
1247 C.F.R. � 1.4000(g).
Federal Communications Commission DA 09-1675
3
and, therefore, are covered by the Rule. The Board asserts that the areas other than his driveway are
common areas and therefore are not covered by the Commission�s Rule. As demonstrated by the record,
the Villas at Highland Lakes is a condominium development governed by Declarations and Bylaws
(�Declarations�) that address, among other aspects of the development, the areas designated as
�common� and �limited common� elements
e. The Board asserts that the areas other than his driveway are
common areas and therefore are not covered by the Commission�s Rule. As demonstrated by the record,
the Villas at Highland Lakes is a condominium development governed by Declarations and Bylaws
(�Declarations�) that address, among other aspects of the development, the areas designated as
�common� and �limited common� elements. The Declarations, adopted in 1996, describe Common
Areas as follows: �All of the condominium Property, including all of the land and all improvements
thereon and appurtenances thereto, except those portions labeled or described herein or on the Drawings
as part of a Unit, are Common Areas.� The Declarations describe Limited Common Areas as �Those
portions of the Common Areas that are labeled and designated �limited common areas� on the Drawings
or herein are Limited Common Areas. In the case of each Unit these Limited Common Areas consist of
an exterior parking area immediately in front of the garage serving the Unit. Each such Limited
Common Area is reserved for the exclusive use of the owners and occupants of the Unit it is designed or
designated to serve.�13
6. In his original Petition filed in 2007, Petitioner requested the Commission to find that he is
entitled to install a satellite antenna on his roof, on his outside wall, or on a post on property outside his
condominium unit.14 In Reply Comments in response to the Board�s Opposition, Petitioner now
requests the Commission to find that he is entitled to install an antenna in his driveway area or in an
�area from the shrubs and/or bushes up to the condominium unit.�15 With respect to the latter area,
Petitioner states that although the Declarations that accompany the property include only the driveway
area in the definition of limited common areas, another document entitled �Rules and Regulations� was
adopted by the Board on October 15, 2003 and indicated that the Limited Common Area included the
area from the shrubs and bu
p to the condominium unit.�15 With respect to the latter area,
Petitioner states that although the Declarations that accompany the property include only the driveway
area in the definition of limited common areas, another document entitled �Rules and Regulations� was
adopted by the Board on October 15, 2003 and indicated that the Limited Common Area included the
area from the shrubs and bushes up to the condominium unit.16
7. In explanation, the Board states that its directors mislabeled a drawing in the handbook it
gave to unit owners and included areas around the units as limited common areas.17 These areas are not
so designated on the recorded drawings for the condominiums. The Board states that it had intended to
allow satellite antennas in this mislabeled area but when it was discovered that this was in fact a
common area, it decided not to permit antennas in this location. 18The Board further states that it has no
restriction on or regulation of antennas installed in the driveway area. In addition, the Board asserts that
it has passed a rule to allow installation of antennas in a small portion of the common element
surrounding each unit. It states that this rule will allow installation in a more practical area than the
driveway.19 The Board�s rule requires that the mast for the antenna be no more than four feet tall and
that cables and wires be painted a color similar to the unit�s siding.20 The Board did not attach a copy of
this rule but we note that the area they are offering for antenna installation is different, and appears

13 See Exhibit A attached to the Board�s reponse to Petition.
14 Petition at 7.
15 Reply Comments filed June 12, 2008. The pages of Mr. Rhoad�s reply comments are not numbered but this
request appears on the sixth page.
16 Id.
17 Board�s Reponse at 3.
18 Id.
19 Id.
20 Id.
Federal Communications Commission DA 09-1675
4
smaller, than the area in the mislabeled handbook.21
8
s

13 See Exhibit A attached to the Board�s reponse to Petition.
14 Petition at 7.
15 Reply Comments filed June 12, 2008. The pages of Mr. Rhoad�s reply comments are not numbered but this
request appears on the sixth page.
16 Id.
17 Board�s Reponse at 3.
18 Id.
19 Id.
20 Id.
Federal Communications Commission DA 09-1675
4
smaller, than the area in the mislabeled handbook.21
8. In response, Petitioner asserts that the Board�s rule allowing antennas on part of the
common elements has never been made public, and he questions its existence. In addition, he argues
that the designation of limited common areas in the Rules and Regulations supercedes that of the
Declarations. He requests that the Commission direct the Board to allow antennas in three areas: the
�mislabeled� area from the shrubs up to the unit, the area between the unit and the sidewalk that the
Board is offering as an alternative, and the parking or driveway area that is labeled a limited common
area in the Declarations. DIRECTV and Dish Network support Petitioner�s contentions.22
9. First, we find that the driveway area for each unit at the Villas at Highland Lakes is an area
within the exclusive use and control of the unit owner or his designee and thus our rules prohibit the
Board from restricting antenna installation there.23 The Declarations are clear on this point and the
Board does not argue otherwise.
10. Second, with respect to the area described as that from the bushes or shrubs up to the
unit, we find that this is a common area and does not meet the definition of an exclusive use area as
required by the Rule. Therefore, the Rule does not apply to antenna installations in this space
installation there.23 The Declarations are clear on this point and the
Board does not argue otherwise.
10. Second, with respect to the area described as that from the bushes or shrubs up to the
unit, we find that this is a common area and does not meet the definition of an exclusive use area as
required by the Rule. Therefore, the Rule does not apply to antenna installations in this space. The
condominium Declarations that were filed when the community was developed make clear that this area
is common and these declarations have been duly recorded and convey certain property rights.24 These
Declarations are the controlling documents for our purposes.25 We see no evidence that the 2004 Rules
and Regulations were intended to affirmatively modify these rights nor does it appear that these rules
were properly recorded as amendments to the Declarations. DIRECTV and Dish Network argue that an
association can change its rules and can offer additional areas for antenna installation.26 However, a
change in rules cannot shift ownership of land without the necessary formal procedures and an
expressed intent to accomplish such a shift.27 In this case, the Board has represented that it will allow
antenna installation in a small area close to the units that is designated a common area in the
condominium documents. The Board did not, however, indicate any intention to change the designation
of this area to a limited common area.28 Both the Board and the Petitioner in their additional pleadings
cite state court cases with respect to the need for formal amendment to change condominium
declarations. The cases cited by the Board support the assertion that actions changing common areas to

21 See Exhibits C & D attached to the Board�s Response.
22 See Joint Comments and Reply Comments filed by DIRECTV and Dish Network
Both the Board and the Petitioner in their additional pleadings
cite state court cases with respect to the need for formal amendment to change condominium
declarations. The cases cited by the Board support the assertion that actions changing common areas to

21 See Exhibits C & D attached to the Board�s Response.
22 See Joint Comments and Reply Comments filed by DIRECTV and Dish Network.
23 The record does not indicate whether the wiring to connect an antenna installed in this area to receiving equipment
inside the unit would run over or through a common area. If the wiring does not remain within the Petitioner�s
exclusive use area, the installation would not be covered by the Rule.
24 See Exhibit A atteched to the Board�s response to Petition.
25 Second Report and Order, 13 FCC Rcd at 23897; In the Matter of Philip Wojcikewicz, 22 FCC Rcd 9858 (2007);
In the Matter of James Bannister, DA 09-1673 (MB 2009) .
26 Reply Comments filed by DIRECTV and Dish Network at 4.
27See e.g. Ohio Revised Code �5311.05(10) which requires the affirmative vote of unit owners exercising not less
than seventy five per cent of the voting power to amend a condominium declaration and Ohio Revised Code
�5311.031(A)(3) which requires recordation of declaration amendments that reallocate undivided interests in
common elements.
28 Board Response at 3.
Federal Communications Commission DA 09-1675
5
limited common or exclusive use areas require unanimous approval of all unit owners.29 The Petitioner
cites several cases that he characterizes as decisions that do not �favor� associations
de
�5311.031(A)(3) which requires recordation of declaration amendments that reallocate undivided interests in
common elements.
28 Board Response at 3.
Federal Communications Commission DA 09-1675
5
limited common or exclusive use areas require unanimous approval of all unit owners.29 The Petitioner
cites several cases that he characterizes as decisions that do not �favor� associations. However, these
cases involve situations where the court examines the particular facts and equities of individual cases
and these opinions do not undermine the general principal that changes to condominium declarations
must be approved by unit owners and duly recorded.30 The Commission�s role in this proceeding is to
determine whether or not the OTARD rule applies to a proposed antenna installation area based on its
status under the existing legal documents. As the Commission stated in addressing issues surrounding
OTARD�s implementation, in order to avoid Constitutional impediments, ��the agreed-upon scope of
the physical possession [necessary for the rule to apply] is set forth in the lease or other controlling
document; individual residents generally do not have the right to possess and use the common areas for
their exclusive benefit over the property owner�s objection.� 31 Here, the area in question is designated
as common by the controlling documents and based on this, we find that the Petitioner does not have
exclusive use of this area and the Rule, therefore, does not apply.
11. Finally, with respect to the area between the sidewalk and the unit, since this area is also
designated on the official documents of the condominium as common area and not within the exclusive
use of the unit owner, it is not covered by the OTARD Rule. Consequently, the Board is free to offer it
as an alternative installation site but it is also free to impose whatever restrictions it desires since this
area is not covered by the Rule
idewalk and the unit, since this area is also
designated on the official documents of the condominium as common area and not within the exclusive
use of the unit owner, it is not covered by the OTARD Rule. Consequently, the Board is free to offer it
as an alternative installation site but it is also free to impose whatever restrictions it desires since this
area is not covered by the Rule. The fact that not all unit owners will be able to take advantage of this
space is irrelevant to the question of whether the OTARD rule applies.32 Merely because an individual
does not have an area within his exclusive use that he can use for antenna installation does not require
an association or landlord to allow installation in a common area.33

29 See Grimes v. Moreland, 322 N.E. 2d 699, 703 (1974); The Falls Homeowners� Association, Inc. v Aveyard 1994
WL 409626 (Ohio App. 2 Dist. 1994); The Ridgely Condominium Association, Inc. v. Smyrnioudis, 343 Md. 357
(1996).
30 See O�Neil v Atwell, 73 Ohio App. 3d 631, 638 (1991)); Belden v. Webb, 122 Ohio App. 3d. 199 (1997); Jefferson
Place Condominium Association v. Naples, 124 Ohio App. 3d 394 (1998); and Claridges of Walden Condominium
Assoction v. Wenk, 1991 WL 157624 (Ohio App. 11 Dist. 1991).
31 Second Report and Order at 23897.
32 See Petitioner�s Reply at 8; Petitioner�s Additional Reply at 4.
33 See Second Report and Order at 23897, where the Commission concluded that the Rule�s implementing statute,
Section 207 of the 1996 Telecommunications Act, did not authorize extending the rule to cover common areas. We
do not address the suggestion of DIRECTV and Dish Network to expand the coverage of our OTARD rule to
common areas as this is beyond the scope of this declaratory ruling proceeding.
Federal Communications Commission DA 09-1675
6
III. Ordering Clauses
12. Accordingly, IT IS ORDERED, pursuant to Section 1.4000(d) of the Over-the-Air
Reception Devices Rule, 47 C.F.R
over common areas. We
do not address the suggestion of DIRECTV and Dish Network to expand the coverage of our OTARD rule to
common areas as this is beyond the scope of this declaratory ruling proceeding.
Federal Communications Commission DA 09-1675
6
III. Ordering Clauses
12. Accordingly, IT IS ORDERED, pursuant to Section 1.4000(d) of the Over-the-Air
Reception Devices Rule, 47 C.F.R. � 1.4000(d), and Section 1.2 of the Commission's rules, 47 C.F.R. �
1.2, the Petition is GRANTED IN PART and DENIED IN PART .
13. This action is taken by the Acting Chief, Media Bureau, pursuant to authority delegated by
Section 0.283, 47 C.F.R. �0.283, of the Commission's rules.
FEDERAL COMMUNICATIONS COMISSION
Robert H. Ratcliffe
Acting Chief
Media Bureau

## Nearby sections

- [DA-00-1341: A&E Television Networks For Declaratory Ruling (06/20/00) A&E Television Networks For Declaratory Ruling](https://www.frixlaw.com/law-library/statutes/FCC_DA_00_1341.md)
- [DA-01-2234: Request for Declaratory Ruling Removing the Commission's Minimum Carrier Tone Requirement for OFDM Modulation in the Multipoint Distribution and Instructional Television Fixed Services (09/26/01) Request for Declaratory Ruling Removing the Commission's Minimum Carrier Tone Requirement for OFDM Modulation in the Multipoint Distribution and Instructional Television Fixed Services](https://www.frixlaw.com/law-library/statutes/FCC_DA_01_2234.md)
- [DA-01-2871: Multi-Association Group (MAG) Plan (12/11/01) Multi-Association Group (MAG) Plan](https://www.frixlaw.com/law-library/statutes/FCC_DA_01_2871.md)
- [DA-02-765: NATIONAL ASSOCIATION OF BROADCASTERS AND ASSOCIATION OF LOCAL TELEVISION STATIONS' EMERGENCY PETITION FOR MODIFICATION OR CLARIFICATION OF BROADCAST CARRIAGE RULES FOR SATELLITE CARRIERS, 47 C.F.R. SECTION 76.66 (04/04/02) NATIONAL ASSOCIATION OF BROADCASTERS AND ASSOCIATION OF LOCAL TELEVISION STATIONS' EMERGENCY PETITION FOR MODIFICATION OR CLARIFICATION OF BROADCAST CARRIAGE RULES FOR SATELLITE CARRIERS, 47 C.F.R. SECTION 76.66](https://www.frixlaw.com/law-library/statutes/FCC_DA_02_765.md)
- [DA-02-2078: Time-Telepictures Television (08/26/02) Time-Telepictures Television](https://www.frixlaw.com/law-library/statutes/FCC_DA_02_2078.md)
- [DA-03-2865: INFINITY BROADCASTING OPERATIONS INC (09/09/03) INFINITY BROADCASTING OPERATIONS INC](https://www.frixlaw.com/law-library/statutes/FCC_DA_03_2865.md)
- [DA-03-4108: Comcast Cable Communications, Inc., Petition for Declaratory Ruling Petition for Revocation of Certification Request for Expedited Consideration (01/06/04) Comcast Cable Communications, Inc., Petition for Declaratory Ruling Petition for Revocation of Certification Request for Expedited Consideration](https://www.frixlaw.com/law-library/statutes/FCC_DA_03_4108.md)
- [DA-04-970: List of Foreign Telecommunications Carriers that Are Presumed to Possess Market Power in Foreign Telecommunications Markets (04/08/04) List of Foreign Telecommunications Carriers that Are Presumed to Possess Market Power in Foreign Telecommunications Markets](https://www.frixlaw.com/law-library/statutes/FCC_DA_04_970.md)
- [DA-04-3201: Amendment of the Commission's Space Station Licensing Rules and Policies (10/06/04) Amendment of the Commission's Space Station Licensing Rules and Policies](https://www.frixlaw.com/law-library/statutes/FCC_DA_04_3201.md)
- [DA-04-3576: Thrifty Call, Inc. Petition for Declaratory Ruling Concerning BellSouth Tariff F.C.C. No. 1 (11/12/04) Thrifty Call, Inc. Petition for Declaratory Ruling Concerning BellSouth Tariff F.C.C. No. 1](https://www.frixlaw.com/law-library/statutes/FCC_DA_04_3576.md)
- [DA-05-140: Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities (01/26/05) Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities](https://www.frixlaw.com/law-library/statutes/FCC_DA_05_140.md)
- [DA-05-148: CLARIFICATION OF RECONSIDERATION PERIOD AND EFFECTIVE DATE FOR TERMINATIONS OF WIRELESS RADIO SERVICE AUTHORIZATIONS (01/21/05) CLARIFICATION OF RECONSIDERATION PERIOD AND EFFECTIVE DATE FOR TERMINATIONS OF WIRELESS RADIO SERVICE AUTHORIZATIONS](https://www.frixlaw.com/law-library/statutes/FCC_DA_05_148.md)
- [DA-05-1618: Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996 (06/09/05) Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996](https://www.frixlaw.com/law-library/statutes/FCC_DA_05_1618.md)
- [DA-05-1667: Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (06/15/05) Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991](https://www.frixlaw.com/law-library/statutes/FCC_DA_05_1667.md)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FCC_DA_09_1675. Check the current official text before relying on it. Not legal advice.