FCC ISSUES RULE ON RESIDENT SATELLITE DISHES.

On November 20, 1998 the Federal Communications Commission (FCC) issued Order 98-273 allowing residents of leased premises the right to install a satellite dish or antenna under very limited circumstances. That Order took effect on January 22, 1999.

The National Apartment Association (NAA)/National Multi Housing Council (NMHC)/American Seniors Housing Association (ASHA) have lobbied aggressively on this issue since 1996 and we have been able to secure numerous and reasonable restrictions for apartment owners despite the FCC's desire to issue a broader regulation.

The Second Report and Order issued by the FCC comes almost three years after passage of the Telecommunications Act of 1996. Anticipating that the FCC might interpret Section 207 of the 1996 Telecommunications Act broadly, we joined with other national trade associations, hired a leading FCC law firm, and began intensive discussions and filings at the FCC on this very important issue.

THE FCC RULING

In its interpretation of the Telecommunications Act of 1996, the FCC has ruled that:

* A resident of an apartment (or any leasehold space including seniors housing) may not be unreasonably restricted from installing an individual satellite dish of one meter or less in diameter or a traditional stick-type antenna on a balcony, balcony railing, or patio that is totally within the premises being leased;

* An existing exclusive agreement with a third party provider for television service to the property may not be used as a reason for restricting installation of a dish or antenna by an individual resident;

* No dish or antenna may be installed on any common areas, including outside Walls, outside window sills, roofs, common area balconies, common area stairwells, or any other common area;

* No holes may be drilled through outside walls, roofs, balcony railings, or glass; and

* The property owner/manager is not required to install a central dish or other devices for residents who cannot otherwise receive a satellite signal.

ENFORCEABLE RESTRICTIONS

Based upon actual wording in the FCC Order, a property owner/manager can insist on the following before an individual resident can install a satellite dish or antenna:

LOCATION

A dish or antenna may only be installed on a balcony, balcony railing, or patio that is totally within the individual leased premises. No part of the antenna or dish may extend beyond the balcony railing line or patio line.

CONDITIONS

No holes may be drilled in any exterior wall, roof, window, or balcony railing. Though not in the actual wording of the FCC Order, a reasonable interpretation of the Order would be that a property owner/manager can insist on the following conditions before an individual resident may install a satellite dish or antenna, so long as the conditions are not in conflict with any state or local laws.

* Indemnification. Residents can be required to sign a legal document holding the owner/manager harmless and assuming total responsibility for any personal or physical damage to property or persons as a result of damage or injury caused by the dish or antenna.

* Insurance. Residents can be required to obtain liability insurance adequate to fully cover claims that may be made by the property owner/manager or third parties as a result of damage or injury caused by the dish or antenna. The insurance should list the owner/manager as an additional insured.

* Installation. Owners should encourage residents to have the dish or antenna installed by a professional installer. The "hook-up" to an inside receiving device can be made by either a flat cable under a sliding door or by means of a device on a window that allows a signal to pass through the glass.

* Extension Devices. Devices that extend the dish or antenna beyond the balcony railing or patio line may not be used.

* Security Deposit. So long as not prohibited by state or local law, a reasonable security deposit to cover any physical damage caused by installation may be requested.

* Inside Hook-up. The satellite or antenna system must be a stand-alone system. A resident may not splice into any existing wires or cables.

LEASES

Owners should revise future leases to include the conditions outlined above.

CENTRAL ANTENNA OPTION

If the apartment property has a central dish or antenna for use by all residents, individuals may be prohibited from installing individual dishes if the central antenna provides the commercially acceptable signals that the individual viewer wishes to obtain and the cost of that central antenna service to the individual viewer is not greater than the cost of service the individual could obtain privately.

RIGHTS OF LEASEHOLDERS

This FCC Order only gives rights to individual leaseholders who are able to receive a satellite signal within the reasonable restrictions mentioned above. Residents who feel they have been unfairly restricted may appeal to the FCC or a court for further clarification. If the FCC finds in favor of the resident, the restriction must be removed by the property owner/manager.

A complete copy of FCC Order 98-273 may be found on the FCC Web site at www.fcc.gov/Bureaus/Cable/Orders/1998/fcc9 8273.txt

FURTHER NAA/NMHC ACTION

On December 23, 1998 NAA/NMHC joined forces with other real estate organizations in filing an appeal in the federal courts seeking to overturn the FCC's satellite ruling. At issue is whether the FCC has the authority to adopt the Order and whether the Order violates the Fifth Amendment. The real estate coalition's petition claims that the FCC does not have the authority to allow a resident to install an antenna or satellite dish without the consent of the building owner. The FCC further has no general authority over building owners or the real estate industry, as Congress did not intend for Section 207 of the 1996 Telecommunications Act to apply to leased property or to apply to services other than video programming.

NAA/NMHC OPPOSES EPA'S HEALTH-BASED STANDARDS FOR LEAD-BASED PAINT HAZARDS

NAA/NMHC filed comments with the U.S. Environmental Protection Agency on December 31, 1998, opposing the Agency's attempts to essentially hold residential property owners liable for all the lead in the soil on their properties when other responsible parties should also be held accountable. Our comments oppose proposed rules EPA issued under Section 403 of the Residential Lead-Based Paint Hazard Reduction Act (Title X) to establish health-based standards for lead-based paint and lead-contaminated dust and soil. We contend that not only has the Agency exceeded its authority under Title X by regulating lead from any source and not just lead-based paint as Congress intended, but also that the proposal creates an uncapped liability for property owners on whose land lead hazards are deposited.

The EPA itself has acknowledged that lead in soil and dust can result from prior usage of leaded gasoline and continued emissions from farm and recreational vehicles and industrial/manufacturing processes and not just from deteriorated paint, nonetheless the proposed regulations place complete liability on property owners. Using HUD's estimates for percentages of affected properties and the costs of intervention, NAA/NMHC estimate that the costs of interim control measures (e.g., soil cover) and abating soil lead hazards (e.g., removing/replacing the soil or providing permanent cover) would cost rental property owners more than $2 billion. NAA/NMHC were joined in these comments by the National Association of Home Builders, the National Leased Housing Association and the Institute of Real Estate Management.

WIRING RESTRICTION

Continuing a process started more than three years ago, NAA/NMHC/ASHA challenged the National Fire Protection Association (NFPA) decision to retain a restriction in the National Electrical Code (NEC) on the use of Romex (non-metallic sheath electrical wiring) in multifamily buildings four or more stories in height. NAA/NMHC/ASHA and Avalon Bay Communities filed a joint appeal to the American National Standards Institute (ANSI) Board of Standards Review (BSR) requesting that ANSI withdraw its certification of the 1999 Edition of the NEC. In its denial of our appeal, ANSI supported several of the concerns we raised, recommending that NFPA appoint a task force to conduct an in-depth review of our proposals to remove or modify the NEC Romex restrictions. ANSI also encouraged NFPA to set appropriate time parameters for the review to be completed. ANSI also fully supported our contention that NFPA does have the responsibility to construct a consensus body representing a balance of interests, and that they must provide an opportunity for others to participate in the process through public review and comment. Finally, ANSI wrote that the reason NFPA gave in rejecting our proposal (insufficient technical justification) was itself insufficient, stating that "a more detailed written response to the appellants' proposals and related materials would have been appropriate."

Information compiled by NAA/NMHC Joint Legislative Staff: Senior Vice President Clarine Nardi Riddle; Vice President of Tax Jim Arbury; Vice President of Property Management Jay Harris; Vice President of Environment Eileen Lee; Vice President of Housing and Finance Stephen Lefkovits; and Vice President of Building Codes Ron Nickson.