SBCA, City Government Groups Clash on Petition to Alter Satellite Dish Placement Rule

The SBCA held its argument that the OTARD rule as it now stands is capable of misinterpretation (http://xrl.us/bncvfa). The FCC’s implementing orders don’t give any clue “that local governments should be expected from the Congressional mandate to prohibit restrictions that impair a viewer’s ability to receive video programming services,” said the SBCA, which includes Dish Network and DirecTV. The FCC should amend the OTARD rule “to ensure that viewers continue to enjoy the expanded choice of competitive multichannel video services that Congress intended,” it said: It makes no sense when a property owner “permits installation in a common area while a third party (such as a city) seeks to prohibit it against the owner’s wishes."

Statements from Philadelphia and Boston against changing the rule are unpersuasive, SBCA said. In initial comments, the cities argued that their regulatory authority derives not from OTARD but from local police powers (CD June 11 p5). “But Congress expressly preempted those police powers when it directed the commission to promulgate the OTARD rules.” OTARD “limits local governments’ regulatory authority,” it added.

Skyware Global put its support behind the petition in its comments (http://xrl.us/bncvhx). The commission has found that Congress intended to ensure full and fair competition among different types of video programming services with the adoption of the OTARD statute, the satellite terminal solutions, the firm said: Unless the statute is amended, “state or local government could promulgate regulations contrary to the Congressional intent and adversely affect competition."

The Minnesota Association of Community Telecom Administrators said it supports comments made by the National Association of Telecommunications Officers and Advisors and city government groups (http://xrl.us/bncvjk). MACTA urged the commission to deny the petition “and uphold state and local government authority to continue its reasonable regulation of satellite dish antennas in common areas.” The OTARD rule “carefully balances the interests of consumers, industry and government to increase competition and availability of video programming services, while protecting the quality, character and property values of our communities,” it said.

In initial comments, the Satellite Industry Association was concerned that the rule threatened the rights of property owners and homeowners associations (CD June 11 p5). Boston and Philadelphia rejected that argument. This fear is unfounded, Philadelphia said (http://xrl.us/bncvj9). The city would allow a property owner or tenant “to document that the occupant has exclusive use of an otherwise non-exclusive area, making an antenna placed there fully subject to the OTARD rule,” it said.

Boston and the U.S. Conference of Mayors urged the commission to dismiss or deny the petition. “Local governments continue to rely on prior OTARD rulings that have properly respected a local government’s police power authority to require an OTARD user to have exclusive control over the area of installation,” they said in a joint filing (http://xrl.us/bncvky). This month, the mayors conference passed an OTARD resolution and Boston adopted an OTARD ordinance, they said: “We took these actions in reliance of the rich history of the FCC respecting the rights of local governments to limit the installation of OTARD placement to an area under the exclusive control of the viewer.” The Boston ordinance respects OTARD users’ rights, the city said: The bill’s sponsors did not seek to completely ban dishes from the front of buildings, but directs dish companies “to make every effort to exhaust all other possibilities before placing a dish on the front of a home.”