FCC Chairman Ajit Pai has circulated a Notice of Proposed Rulemaking (“NPRM”) for consideration at the agency’s next open meeting on April 12, 2019 to expand protections for over-the-air reception devices (“OTARD”) to include hub and relay antennas that are part of the infrastructure needed for 5G deployments nationwide. The draft was released on March 25th and so far there have been no meetings on the draft reported in the docket, so it remains to be seen whether local governments or homeowners’ association groups, for example, will resist this action.
The OTARD rule was originally adopted to protect antennas used to receive video programming signals, like consumer DirecTV and DISH satellite dishes. It prevented local ordinances and homeowners’ association rules from restricting consumers’ ability to install a satellite dish to receive television programming. It only applied to small antennas (1 meter in diameter or diagonal measurement) that were installed on property within the exclusive use or control of the user – meaning the antenna was for personal consumer use. In 2000, the Commission expanded the OTARD rule to apply to antennas used for transmitting or receiving fixed wireless signals (which can be used for voice, video or data communications), but the protections applied only to antennas at the customer end of the wireless transmission. That meant it did not protect hub or relay antennas used by the service provider to transmit signals to and/or receive signals from multiple customer locations. A subsequent clarification extended the protections to antennas used to route service to additional users, such as a node in a mesh network.
The Wireless Internet Service Providers Association (“WISPA”), which represents fixed wireless service providers, has asked the FCC to update and expand the OTARD rule to apply to all fixed wireless transmitters and receivers used for reception or transmission or both, which would extend the OTARD protections to the hub and relay antennas previously excluded. Such small antennas may be deployed to support the dense infrastructure necessary for 5G using higher frequencies. The draft NPRM proposes to retain the exceptions in the rule, which allow state, local and private restrictions to accomplish clearly defined safety objectives, or to preserve prehistoric or historic places eligible for inclusion on the National Register of Historic Places. Those permitted restrictions must impose as little burden as possible and must be applied in a nondiscriminatory manner.
If the draft NPRM is adopted at the April 12th meeting, comments will be due 30 days after publication of the NPRM in the Federal Register and reply comments will be due 45 days after publication.