This can be an extreme burden for community associations in terms of time and cost for technical and legal services required to draft restrictions that comply with the OTARD Rule, or to defend them before the FCC or in state court proceedings. Whether before the FCC or in state court, the burden of demonstrating a particular restriction complies with the OTARD Rule is on the community association (or other person or entity) seeking to enforce the restriction. The FCC has indicated that virtually any occupant of property affected by an antenna restriction has the right to maintain a proceeding before the FCC, even in a case in which the antenna user was not shown to either own or lease the property upon which the antenna was placed. If a petition is filed with the FCC after a state court lawsuit is filed, the FCC will generally "request" the state court to abate its proceedings pending determination by the FCC of any OTARD Rule related issues. However, declaratory relief under the rule can also be sought in a state court. The procedures apply generally to proceedings before the FCC. The OTARD Rule provides a procedure for filing of a petition for declaratory relief (or waiver) by parties affected by antenna restrictions, including a community association or homeowner. These digital signal antenna generally have a limited line-of-sight range in which the antenna either works or it does not (the "cliff effect"). Placement requirements may not be such as to cause a TVBS signal to be "substantially degraded," but such requirements need not provide for an "optimal quality signal." On the other hand, devices designed to transmit or receive digital signals must be installed where it has an unobstructed direct view of the satellite or other device from which signals are received or to which signals are to be transmitted. A TVBS is generally subject to gradual impairment depending upon placement, including height. Its application differs as to television antenna ("TVBS") and devices designed to receive digital signs. Section 1.4000(a)(4) of the OTARD Rule simply states "ny fee or cost imposed on a user by rule, law or restriction must be reasonable in light of the cost of the equipment or services and the rule, law, regulation or restriction's treatment of comparable devices." The "acceptable quality signal" element applies primarily to placement restrictions, including as to height, of an antenna. As to the cost element, the FCC has consistently declined to adopt any formula for determining unreasonable cost increases, although its decisions reflect that very little cost increase will be accepted. The delay element is most commonly applied to prohibit prior approval restrictions. A restriction or rule "impairs" according to the OTARD Rule 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. If the OTARD Rule applies, then it prohibits any community association restriction or rule that "impairs the installation, maintenance or use of" a covered antenna. That Fact Sheet may be accessed on the Internet at. The Fact Sheet also contains links to obtain copies of the rule, and various FCC orders and rulings regarding the rule. The FCC has published a May 2001 Fact Sheet which briefly explains the OTARD Rule, provides answers to frequently asked questions, and contains other general information regarding the OTARD Rule. The FCC continues to "clarify" the rule primarily through its decisions in particular cases on petitions for declaratory ruling. The rule was additionally expanded in the Competitive Networks Report and Order to cover fixed wireless signals. The rule was expanded to cover tenants in the Second Report and Order. The initial OTARD Rule was adopted, discussed and clarified in the Report and Order and Order on Reconsideration. The OTARD Rule in its present form was adopted by the FCC primarily through four opinions and reports released on Aug(the "Report and Order"), Septem(the "Order on Reconsideration"), Novem("Second Report and Order"), and Octo(the "Competitive Networks Report and Order")ยน. " Pursuant to this directive, the FCC adopted the Over-the-Air Reception Devices Rule (the "OTARD Rule") which is set forth in Section 1.4000 of the FCC rules. Section 2.07 of the Act directs the Federal Communications Commission ("FCC") 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.
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