FCC Clarifies OTARD Rule for Fixed Wireless Providers

The FCC has adopted an Order on Review clarifying certain aspects of its rule governing over-the-air reception devices (OTARD).

With some exceptions, the FCC’s OTARD rule prohibits state or local governments, or private entities, from imposing restrictions that impair the ability of individuals to install, maintain, or use antennas protected by the OTARD rule. To qualify for protection under the OTARD rule, an antenna must meet certain size and other restrictions and must be installed “on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property” where the antenna is located.

The OTARD rule protects antennas used to transmit or receive fixed wireless signals, including hub and relay antennas used to distribute broadband-only fixed wireless services to multiple customer locations, if the antenna meets the size restrictions and is used to serve an ISP’s customer at the location where the antenna is installed.

The FCC affirmed that the OTARD rule did not apply in a situation where the landlord did not establish that there was a regular human antenna user presence at the property. The FCC explained that the OTARD rule requires “a minimum human presence” at the property that uses the antenna to receive service, adding that “[f]or OTARD protections to attach to a fixed wireless antenna, the petitioner must demonstrate that it is regularly being used to provide signals to human end users at the location where the equipment is installed.”

The FCC also rejected the landlord’s claim that the filing of a petition for declaratory ruling seeking OTARD protection automatically requires the FCC to initiate a proceeding or suspend enforcement of the antenna restrictions.

For more information about the FCC's OTARD rule and how it applies to fixed wireless antennas, contact an attorney in our Broadband, Spectrum, and Communications Infrastructure practice group.