12/02/08: Impact Of Digital TV On Community Associations

Housing Counsel

By Benny L. Kass

Q: Can you address the upcoming Digital TV conversion issue in your column. For those of us living in a multi-dwelling complex and for those in rental units, a master antenna was the usual means for getting good reception. The Federal Communication Commission (FCC) has issued rules which protect the rights of those who opted to have a satellite dish installed on their limited common element balcony, as well as the right of those in a complex to purchase cable after the building was wired.

My concern is that not everyone wants cable, and I contend if a condominium has a master antenna, then it must not abrogate its responsibility to ensure that the master antenna is updated for the Digital conversion in February 2009. The various buildings in the DC area create a lot of interference, and the outside antenna is the best conduit for good reception. Anyone with an older TV must purchase the converter box; those with digital-ready TVs still need an antenna if they don’t have cable.

It seems to me that the intent of the law is for everyone to be able to receive the digital signal, and I believe a condo board cannot dictate to anyone that an owner must purchase cable.

A: On February 17, 2009, television stations will cease broadcasting using analog signals and must switch to digital. This means that if you have an analog television set, and use an antenna (or rabbit ears) to watch your favorite programs, you will either have to buy a converter box, buy a digital tv, or subscribe to cable or satellite service.

If you receive your television service from a cable or satellite provider, or if you have a digital TV and use an antenna or rabbit ears, the transition to digital will not have any impact on you. However, many cable providers – such as Comcast – have prematurely switched selective channels to digital, requiring consumers to purchase a converter box. This box is unique to Comcast, and is only available from that company.

The FCC rule you refer to is called the Over-the-Air Reception Devices (OTARD), which has been in effect since October of 1996. Simply stated, the rule prohibits state or local laws from imposing restrictions on a person’s ability to install, maintain or use an antenna in order to have television access. According to the FCC, the restriction applies “if it (1) unreasonably delays or prevents use of; (2) unreasonably increases the cost of; or (3) precludes a person from receiving or transmitting any acceptable quality signal from an antenna covered under the rule”. (FCC Information Sheet, OTARD Rule, December, 2007.

It is to be noted, however, that community associations can only impose restrictions on the placement of antennas or satellite dishes on common areas. If the property owner has exclusive use in the area where the antenna is to be located – such as a limited common element balcony – then the no-restriction rule applies.

You raise an interesting legal issue: if your association currently has a master antenna, which after February 17, 2009, will no longer provide you television service, is your Board of Directors legally obligated to ensure continuous service?

First, are you sure that your current antenna will be functional after the transition? According to the FCC, “if your television currently receives good quality reception on analog channels 2-51 with a broadcast antenna, it should be able to receive digital television (DTV) signals, including high definition television (HDTV) signals, with the same broadcast antenna.”

The FCC has issued a Consumer Fact sheet entitled “Antennas and Digital Television” which lists a number of helpful suggestions and tips to improve digital reception. ( www.fcc.gov/cgb/consumer facts)

You should discuss this with your elected board of directors and encourage them to immediately determine if your current antenna system will receive digital systems in your area. However, if it does not work, then the Board will have to decide a number of issues:

• should it replace or upgrade the system?
• should it scrap the antenna system completely and arrange for cable service for the entire community? Typically, many associations enter into contracts with a cable provider to provide bulk service for all owners. The association pays the bulk rate -which is typically cheaper than individual rates -and includes the bill as part of operating expenses.
• or should it let individual owners make their own arrangements, at their own expense?

If the board opts for the second approach, then your legal question becomes relevant. Boards of Directors are elected by the owners, and – subject to any restrictions contained in the association’s legal documents – have fairly broad authority. If the Board decides that it wants to enter into a bulk cable contract, I believe it has this right. The OTARD rule provides protections for individual owners, and remain in effect. It does not direct the Board to maintain its current service.

However, the Board should first hold an open meeting, and give all owners an opportunity to voice their concerns.

There is a lot of valuable information about the digital conversion on the internet. Organizations such as the National Association of Broadcasters, the National Cable Television Association, as well as the FCC, all have fact sheets that will assist all consumers in making sure that you will receive television service on February 18, 2009.