Legal Alerts Apr 22, 2019

Further FCC Assault on Local Zoning

Join Coalition to Fight Proposed Expansion of OTARD Rule

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The Federal Communications Commission is once again seeking to usurp local authority as part of its agenda for 5G deployment. Last week, the FCC requested comments on a proposal to expand its Over-the-Air Reception Devices Rule. If approved, the Rule would limit localities’ authority to regulate placement of hub and relay antennas of a certain size — regardless of whether an occupant at the site where the equipment is deployed is using the network. In doing so, the FCC seeks to extend a Congressional directive that protects consumers’ right to install satellite dishes (Telecommunications Act of 1996 section 207) to network elements that would otherwise be subject to zoning oversight. Best Best & Krieger LLP is inviting agencies to join a coalition in objecting to this zoning authority encroachment.
 
First adopted in 1999, the OTARD Rule prohibits state and local governments from restricting consumers from installing over-the-air devices to receive over-the-air signals. If a consumer feels that a local rule or ordinance limits the ability to install such a device, a complaint can be filed with the FCC in an effort to force the local government to suspend all enforcement action. But the Rule was designed to solely protect equipment at the consumer’s end: small antennas (1 meter in diameter or less) installed on property within the exclusive use or control of the satellite’s user.
 
Now, the FCC is proposing to extend these protections to hub and relay antennas — equipment 5G providers will use to transmit signals to, and receive signals from, multiple customer locations. This is particularly problematic for local governments because the Rule’s effect may permit 5G providers to install the antennas without notifying local agencies or being subject to local community control.
 
This is not the first time the FCC has expanded the OTARD Rule. In 2000, the Rule was extended from television programming devices to “fixed wireless” antennas and, in 2004, it was extended to protect equipment capable of processing network functionality. But in both cases, the equipment installed had to be used to serve a user at the premises. This proposal eliminates the on-premises user requirement.
 
Comments will be due 30 days from publication in the Federal Register, which is expected to occur at any time. To learn more about the implications of this proposed Rule or about how you may join the coalition to oppose it, please contact one of the authors of this Legal Alert in the firm’s Telecommunications Law practice group or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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