Philadelphia, Boston, City Government Groups Oppose OTARD Amendment Petition From Satellite TV Organizations

In separate filings, Philadelphia and Boston disagreed with SIA’s argument that the rule allows state and local governmental authorities to infringe on the rights of property owners and homeowners associations concerning common areas. Boston said the petition fails to meet the burden under the FCC rule (http://xrl.us/bnbaxn). The commission’s rule says a petition must set forth the substance of the proposed rule or amendment “together with all facts, views, arguments and data deemed to support the action requested, and shall indicate how the interests of petitioner will be affected,” it said. Petitioners “fail to meet their burden to justify this change,” Boston said. Boston rejected the petitioners’ argument that if the “exclusive use” interpretation is extended to state and local government regulation, “the very language that preserves a property owner’s prerogatives with respect to common areas he controls would also subject those prerogatives to divestiture at the hands of state and local governmental authorities.” Boston, like other local governments had the necessary authority to regulate OTARDs prior to passage of the rule, the city said. “Petitioners confuse from whence a local government’s police powers arise.” A local government’s authority to govern common locations doesn’t arise from the OTARD rule, it said: The petition wrongly assumes that authority to regulate the location of an OTARD arises from the FCC rules, “and that changing the rule would benefit OTARD users."

Philadelphia said it’s clear the commission “carefully considered the ramifications of its extension of the OTARD restrictions to rental property, and elected not to include common and restricted-use property while continuing to apply the rule uniformly to private and governmental regulation” (http://xrl.us/bnbaxv). The petition wrongly assumes that “local governments’ exercise of authority to regulate building uses to any extent goes against the norm, effecting a ’taking’ of private property or otherwise invading the owners’ property rights,” it said. But local governments have traditionally possessed such authority, Philadelphia said: “Local police powers predate the OTARD rule, and ... should be given deference."

The commission “has consistently applied the same standards to local governments and private property owners and associations,” Philadelphia said. The only predictable outcome of amending the rule “is to further encourage the placement of antennas on common property without the landlord’s permission -- inviting all of the enforcement and liability issues that the commission sought to avoid,” it added. Another pending petition filed by SBCA argues that a Philadelphia ordinance on satellite antenna placement violates restrictions and hinders access to satellite TV (CD Dec 23 p11).

SIA said it is concerned about the cities’ interpretation of the law. The association rejected the cities’ arguments that the OTARD rule “does not protect locations outside of the exclusive use of tenants.” If so, cities can completely prohibit satellite dishes everywhere “and OTARD does nothing to prevent it,” SIA said in its comments (http://xrl.us/bnbaxz). Under the cities’ interpretation, they can shut down competition between satellite companies within their borders, it said.

In joint comments, NATOA, the U.S. Conference of Mayors and other local government groups support comments filed by Philadelphia. The OTARD rule requires no clarification, they said (http://xrl.us/bnbax3). All parties, including tenants, landlords and satellite providers, “know what sort of regulations are prohibited by the rule and where those regulations are permissible,” the groups said. The FCC did not, through the OTARD rule, “give” government entities the ability to “dictate the use of common areas,” they said: It crafted its OTARD rule “to ensure the availability of various video programming services and to encourage fair competition in the marketplace, carefully balancing the needs of consumers, industry, and government by limiting its applicability to areas of exclusive use or control.”