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Most Townships are familiar with the regulation of communications broadcast and cell towers and it is common for zoning ordinances to regulate the location, height and other aspects of those structures. Recently, however, we have noted that several Townships are attempting to apply similar regulations to the smaller towers typically installed on premises that are used to receive internet, television and other communications signals. Although some regulation of these receiving towers is permitted, the scope of permitted regulation is extremely narrow.  

The OTARD Rule

The Federal Communications Commission’s (FCC) Over-the-Air Reception Devices (“OTARD”) rule preempts Township ordinances that attempt to regulate receiving towers. The OTARD Rule preempts most restrictions or requirements the Township could place on the installation of this type of antenna, or any similar antennas, in the future.

Pursuant to Section 207 of The Telecommunications Act of 1996, the FCC adopted the OTARD Rule concerning restrictions (governmental and nongovernmental) on viewers’ ability to receive video programming via satellites. Since the initial rule making, OTARD’s application has been extended beyond satellites to cover antennas receiving “fixed wireless signals” that encompass “any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location,” including voice, data, or video services. The “antenna” includes all supporting structures such as towers. 

Any satellites or antennas covered by OTARD are exempt from local regulation that impairs the installation, maintenance or use of those antennas, including regulations that: (1) unreasonably delay or prevent installation, maintenance or use; or (2) unreasonably increase the cost of installation, maintenance or use; or (3) preclude reception of an acceptable quality signal.

The OTARD Rule does permit municipal restrictions that are required due to safety or historic preservation concerns. According to the FCC, these restrictions must be as “narrowly tailored as possible, impose as little burden as possible, and apply in a nondiscriminatory manner throughout the regulated area.”

Local Permits

According to the FCC, “local rules or regulations that require a person to obtain a permit or approval prior to installation create unreasonable delay and are generally prohibited.” The OTARD Rule and FCC interpretations say that permits or prior approval may be permissible only if they are necessary to serve a legitimate written safety or historic preservation purpose.  However, it is generally permissible to require notification regarding the type, site, place of installation and other various criteria that may be used, so long as it does not delay installation or increase the costs of installation.

Fees

Concerning fees, the FCC has said that “any requirement to pay a fee to the local authority for a permit to be allowed to install an antenna would be unreasonable because such permits are generally prohibited.” The FCC’s position is that the antenna user should incur no additional costs over those associated with equipment and labor for installation. For example, restrictions cannot require that expensive landscaping screening be required for relatively unobtrusive antennas. A requirement to paint an antenna so that it blends into the background may be acceptable, however.

Preferred Locations

The OTARD Rule does not prohibit a Township from identifying preferred locations for antenna placement (e.g., rear yards only). Placement preferences must be clearly articulated in writing and made available to all residents of the community. A requirement that an antenna be located where reception would be impossible or substantially degraded is prohibited by the Rule. Therefore, any time an antenna would not provide sufficient reception in the preferred location, the Township cannot prohibit the antenna user from constructing the tower in a non-preferred location.

Court Decisions

Very few courts have interpreted the extent to which fees, permits, safety restrictions or historic preservation goals have been deemed reasonable under the OTARD Rule. The Sixth Circuit Court of Appeals (which covers Michigan) examined a parallel federal rule that governed antennas larger than one meter, and whether that rule preempted Lansing’s ordinance restricting satellite dish antennas. The court stated that “the Lansing ordinance comes within the FCC rule’s own exceptions to the preemption. The ordinance has ‘a reasonable and clearly defined health safety [and] aesthetic objective.’ These objectives include traffic safety, light, ventilation, fire protection and aesthetic considerations.” On the other hand, however, this case was decidedbefore the OTARD Rule and the FCC’s subsequent development of tight limitations on local governmental ability to regulate. And since that case, some other courts have interpreted the interplay of the OTARD Rule with condominium and homeowner associations’ restrictions on antennas (generally height and placement restrictions), striking those restrictions  down as being preempted by the OTARD Rule.

FCC Decisions

The FCC has also issued various reports and decisions regarding municipal authority over these antennas. Under the Rule, an entity enforcing a restriction on antennas, or an individual having such restrictions enforced, may petition the FCC for a determination as to the validity of the restriction. In reviewing these decisions, the FCC does not appear to have upheld any restrictions as reasonable. In one case, the FCC invalidated an ordinance that:

• Required a written permit
• Prohibited installation of any size or type in a front yard
• Required certain side-yard setbacks for antennae installed in a rear yard
• Limited the tower to 12 feet in height
• Permitted antenna to be attached to the side of a building or roof-mounted
• Required compliance with building and utility codes
• Required a $5.00 application fee
• Imposed a penalty up to $500 per day for violations.

The FCC discussed each requirement of the ordinance, ultimately finding each unenforceable under OTARD. As to requesting a permit and charging fees, the FCC stated that “requiring a prospective user to apply for, and then to await, a pro forma permit issuance unreasonably delays installation, and requiring a prospective user to pay a fee for a permit that must, under the terms of the Ordinance be issued automatically, unreasonably increases the cost of installation.” The FCC did note that the $5.00 fee was not the central issue, as any permit was unjustified in this instance.

The FCC held that a municipality could specify particular locations and provide for preferred locations. But the FCC took issue with the municipality’s requirement that “deviation from its placement specifications” required the antenna user or installer to demonstrate to a building official that the installation of the antenna at the location specified by the ordinance precludes reception of an acceptable signal.” The FCC also ruled that a requirement that the antenna user must prove that the municipality’s preferred location was infeasible due to lack of signal violated the Rule. The FCC stated that this was “an unjustified prior approval process which . . . is prohibited by the Rule.” The FCC also explained that although providing an exception for poor signal reception was appropriate, the municipality failed to take into account impairment and delay.

The FCC also found that a requirement to comply with the related building codes likely impaired the installation, maintenance and use of the antennas, and thus, was unenforceable.

Finally, the FCC addressed the penalty provision in the ordinance, concluding that it “impose[d] an unreasonable risk of financial penalty that impairs installation, maintenance and use of the antenna because the mere prospect of a continuing $500 per day fine may prevent antenna installation altogether.”

The FCC did note that regulations are not preempted if they do not impair installation, maintenance or use or if they contain a clearly defined safety or historic preservation objective. Although the FCC apparently has not yet seen a valid safety or historic preservation objective under the Rule, the FCC explained that a municipality may comply with the Rule by preparing and making “readily available” to antenna users a separate document that describes the safety restriction and defines the safety objective. Further, the municipality should state a specific safety objective in its ordinance, not just a general statement of “health, safety and welfare interests.” Note that even safety restrictions must be “no more burdensome to affected antenna users than is necessary to achieve the [safety] objectives.”

In short, for antennas governed by the OTARD Rule, the FCC expects no regulation to limit the construction of or increase in costs for installation of the antennas.

Recommendations for Townships

So, what can your Township do, if anything, to regulate these receiving antennas? Here are some general guidelines:

1.      Stay away from provisions that require:

• Obtaining a permit
• Approval prior to installation (except as discussed below)
• Fees or monetary penalties
• The antenna user to prove the infeasibility of a municipality’s preferred location based on a lack of signal reception prior to installation in a nonpreferred location
• Compliance with Building Code and related regulations
• Any steps that unreasonably delay installation or increase the cost of installation (except as discussed below

2.      Require notification. The Township may create a simple notification form that requires an installer to indicate the type of antenna to be installed, the site, and method and manner of installation anticipated. Township safety restrictions could be provided. The notification form could also identify preferred locations for installation, but the Township may only require approval if installation creates a safety or historic preservation concern. Construction of a tower in a non-preferred location cannot be limited by the Township under OTARD, unless safety or historic preservation is a concern.

3.      Adopt a Zoning Ordinance amendment or a Police Power (non-zoning) Ordinance based on genuine safety or historic preservation concerns.   Prohibiting advertising or identification signs and limiting the use and size of accessory buildings is allowed since it does not impair, inhibit, or impact the installation, maintenance or use of antennas. Additional standards may be set regarding the ability to withstand wind load, prohibiting artificial lighting, painting certain parts of the antenna, and other reasonable restrictions to ensure the safety of the installation and minimize the visual effect on an historic property or district. Valid safety restrictions include fire codes that prevent antenna installation on fire escapes; minimum distance from power lines; and installation requirements that describe the proper method to secure an antenna. These may all be properly characterized as safety or historic restrictions. However, the safety reason for the restriction must be written in the text, preamble or legislative history of the restriction, or in a document that is readily available to antenna users, so that a person who wishes to install an antenna knows what restrictions apply. 

4.      Seek a waiver of the OTARD rule from the FCC. The Rule allows a Township to petition the FCC and request a waiver of the Rule. The FCC may grant a waiver “upon a showing by the Township of local concerns of a highly specialized or unusual nature.” But be aware that, although no further guidance is provided regarding the necessary “local concerns” to meet this burden, the FCC  will require the Township to show “particular facts” that are different from other communities in general.

Ultimately, the Township has the burden of proving that the restriction is valid. This means that no matter who questions the validity of the restriction, the Township will have to prove that the restriction is permitted under the OTARD Rule or that it qualifies for a waiver.

We Can Help

The lawyers of Fahey Schultz Burzych Rhodes PLC have worked with Townships to regulate a broad scope of land uses, including communications receiving towers. We have helped develop and enforce appropriate ordinances.  Please contact us is you need any assistance.

–Bill Fahey
–Helen (“Lizzie”) Mills
–Chris Patterson

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 130 years of experience in township law, and have represented more than 130 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.