Federal Communications Commission FCC 07-98 
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Philip Wojcikiewicz
Application for Review
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CSR-6030-0
MEMORANDUM OPINION AND ORDER
Adopted:  May 22, 2007 Released:  May 25, 2007
By the Commission:
I. INTRODUCTION
1. The Woodmere Townhome Association of Darien, Illinois (Association) and the 
Community Associations Institute (CAI) each filed an Application for Review of a Memorandum 
Opinion and Order (Order) issued by the Media Bureau (Bureau). The Order granted a Petition for 
Declaratory Ruling filed by Petitioner Philip Wojcikiewicz1 (Petitioner) pursuant to the Commissions 
Over-the-Air Reception Devices (OTARD) Rule.2 Petitioner replied to the Applications for Review 
and filed a Motion to Dismiss both Applications for Review.  For the reasons discussed below, we deny 
the Applications for Review.  
II. BACKGROUND
2. The Over-the-Air Reception Devices rule prohibits governmental and private restrictions 
that impair the ability of antenna users to install, maintain, or use Over-the-Air Reception Devices3 and 
was adopted by the Commission to implement Section 207 of the Telecommunications Act of 1996.4 The 
  
1In the caption and text of this Memorandum Opinion and Order we correct a previous misspelling of the 
Petitioners name. See In the Matter of Philip Wojcikewicz[sic], 18 FCC Rcd 19523 (2003).
2 47 C.F.R.  1.4000.
3 See Preemption of Local Zoning Regulation of Satellite Earth Stations and Implementation of Section 207 of the 
Telecommunications Act of 1996; Restrictions on Over-the-Air Reception Devices: Television Broadcast Service 
and Multichannel Multipoint Distribution Service, 11 FCC Rcd 19276 (1996) (Report and Order), recon. granted 
in part and denied in part, 13 FCC Rcd 18962 (1998) (Order on Reconsideration), Second Report and Order, 13 
FCC Rcd 23874 (1998) (Second Report and Order).  The Rule took effect on October 14, 1996.  Public Notice 
DA 96-1755 (Oct. 23, 1996).
4 Section 207 requires the Commission to promulgate regulations to prohibit restrictions that impair a viewers 
ability to receive video programming services through devices designed for over-the-air reception of certain 
enumerated services.  Telecommunications Act of 1996, Pub. L. No. 104-104  207, 110 Stat. 56, 114 (1996).
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rule applies to antennas that receive television broadcast signals.5 For the Rule to apply, the antenna 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 upon which the antenna is located.6 The 
Rule preempts restrictions that impair installation, maintenance, or use of a protected antenna by: (1) 
unreasonably delaying or preventing installation, maintenance, or use; (2) unreasonably increasing the 
cost of installation, maintenance, or use; or (3) precluding reception of an acceptable quality signal.7  
There are exceptions in the Rule for restrictions necessary to address valid and clearly articulated safety 
or historic preservation issues, provided such restrictions are as narrowly tailored as possible, impose as 
little burden as possible, and apply in a nondiscriminatory manner throughout the regulated area.8  The 
Rule provides that parties who are affected by antenna restrictions may petition the Commission to 
determine if the restrictions are permissible or prohibited by the Rule.9  
3. Prior to bringing this matter to the Commission, Petitioner filed a written request 
pursuant to the Associations rules requesting permission to install on his roof a television antenna for use 
in conjunction with his High Definition digital television set.  Petitioner also presented his case to the 
Board of Directors of the Association.  After receiving no response from the Association or the Board, he 
filed a Petition for Declaratory Ruling with the Bureau seeking a determination that the antenna 
restrictions in the Declaration for Woodmere Townhomes (Declaration) are prohibited by the 
Commissions rules.10  In response to this petition, the Association and CAI argued that the OTARD rule 
does not apply to the Associations rules because the property in question is not under the exclusive use 
or control of Petitioner and because Petitioner does not have an ownership interest in the property in 
question.11 The Bureau found that Petitioner had exclusive use of and a property interest in the roof of his 
townhome.12 Therefore, the Bureau concluded that the OTARD rule applied to the Associations 
restrictions on Petitioners antenna use.13  Having found that the OTARD rule applied to the property in 
question, the Bureau concluded that the Associations restrictions did not comply with the rule.14  
Specifically, the Bureau found that the Association imposed an impermissible prior approval requirement 
for antennas covered by the Rule; an impermissible size limitation on Petitioners television broadcast 
  
5 47 C.F.R.  1.4000(a).  The rule also applies to antennas that are one meter or less in diameter and are designed to 
receive or transmit direct broadcast satellite (DBS) services; antennas that are one meter or less in diagonal 
measurement and are designed to receive or transmit programming services through multipoint distribution services, 
including multichannel multipoint distribution services, instructional television fixed services, and local multipoint 
distribution services.  There is no size limitation for DBS antennas in Alaska. See also, Promotion of Competitive 
Networks in Local Telecommunications Markets, Wireless Communications Association International, Inc. Petition 
for Rulemaking to Amend Section 1.4000 of the Commissions Rules to Preempt Restrictions on Subscriber Premises 
Reception or Transmission Antennas Designed to Provide Fixed Wireless Services, 15 FCC Rcd 22983 (2000).
6 47 C.F.R.  1.4000(a).
7 Id.
8 47 C.F.R.  1.4000(b).  
9 47 C.F.R.  1.4000(d).
10 Declaration refers to the Declaration for Woodmere Townhomes;  See Application for Review by Woodmere 
Townhome Association (Association) Appendix B, CSR Docket No. 6030-0 (filed Oct. 29, 2003). The restrictions 
in question required prior approval for installation of a satellite dish antenna and flatly prohibited exterior 
installation of a television broadcast antenna. See Response of Petitioner, Appendix A, Declaration for Woodmere 
Townhomes.
11 See, e.g., Response of Association at 6-7.
12 In re Wojcikiewicz, Memorandum Opinion and Order, CSR-6030-0, 18 FCC Rcd 19523, 19525-26  5-8 (2003).
13 Id.
14 Id.
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antenna; and an impermissible placement restriction, which would prevent installation where the antenna 
can receive an acceptable quality signal, to wit, on the roof of Petitioners townhome.15 The Bureau 
concluded that each of these non-complying restrictions were and are preempted by our Rule.16
4. The Association and CAI each filed an Application for Review challenging the Bureaus 
decision that Petitioner had exclusive use of the roof and also challenging the Bureaus finding that 
Petitioner has the requisite property interest in the roof.17  We deny the Applications and affirm the 
preemption of the Associations restrictions, as ordered by the Bureau.
III. DISCUSSION
5. The Commission will grant an Application for Review of an action taken on delegated 
authority when such action, inter alia, conflicts with statute, regulation, precedent or established 
Commission policy; involves application of a precedent or policy that should be overturned; or makes an 
erroneous finding as to an important or material factual question.18  The Association and CAI assert that 
the Bureaus Order misapplied the Rule, relied on an erroneous finding of fact, and creates a precedent 
that should be vacated.19 The Association and CAI do not appear to dispute the Bureaus analysis that the 
Commissions Rule preempts antenna restrictions of the type imposed by the Association.  Rather, they 
argue that the Rule is inapplicable to Petitioners antenna installation and that, therefore, the Associations 
antenna restrictions should not be preempted.  For the reasons discussed below, we find the Bureaus 
decision in this case is consistent with Commission precedent and regulation and therefore we affirm the 
Bureaus order.
A. Ownership of the Property
6. The Order found that Petitioner resides in the Woodmere Townhomes community in a 
townhome that he owns.20 His home is an interior unit in a group of four adjoining townhomes.21  
Petitioner contended that he owned his lot and townhome, including the roof,22 and the Bureau agreed.23  
The Association and CAI disagree with the Bureaus finding.  They claim the townhome roof connects 
with each unit and is one solid structure.  They also point out that the Commission and courts have 
previously referred to roofs as examples of common or restricted access areas to which the Rule would 
not apply.24  
  
15 Id. at  12-17 (also finding that other restrictions imposed by the Association but not specifically challenged by 
Petitioner did not comply with the Commissions rule).
16 Id. at  18.
17 See Application for Review by Community Associations Institute (CAI), CSR- 6030-0 (filed Oct. 30, 2003);
Association Application for Review (filed on October 29, 2003) at 11.
18 See 47 C.F.R.  1.115.  See also, In Re Lubliner, 13 FCC Rcd 16107, 16110 (1998).    
19 CAI Application for Review at 5; Associations Application for Review at 11-17.
20 In Re Philip Wojcikiewicz, 18 FCC Rcd 19523, 19525 (MB 2003).
21 Associations Breach Agreement (form on which Petitioner submitted diagram and written request to install 
antenna on back side of his roof.) attached to original Petition for Declaratory Ruling.  Each unit shares a party wall 
with at least one other unit. 
22 Reply of Petitioner at 3; Response of NAB at 2-3, 5. 
23 In Re Philip Wojcikiewicz, 18 FCC Rcd 19523, 19525 (MB 2003).
24 Associations Supplementary Response to Application for Review at 2-4; Response of CAI at 3-5.
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7. For the Rule to apply, the antenna 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 upon which the antenna is located.25  The Commission has previously found that, as a 
general matter, roofs or exterior walls may, in some circumstances, be restricted access areas where 
tenants are not granted exclusive or permanent possession.26 However, the lease, condominium 
declaration, deed or other controlling document is dispositive in individual situations.27  The Bureau 
decision found that Petitioner had the requisite property interest based upon the Petitioners warranty 
deed28 and the Declaration for Woodmere Townhomes,29 which indicate that Petitioner owns the lot and 
home in fee simple ownership.  Moreover, the Declaration defines the home exterior as the roof, 
foundation, steps, footings, decks, outer surface of exterior walls and garage doors of a Home.30  In its
Application for Review, the Association claims the Media Bureau did not look at the Declaration as a 
whole in deciding whether Petitioner has an ownership interest.31  The Association argues that because it 
has responsibility for repairs, replacement and maintenance, it has an ownership interest in the roof.32  We 
conclude it is explicit in the warranty deed (the controlling document) that Petitioner owns his townhome 
and there is no dispute to his ownership.33  Moreover, we have found previously that the fact that the 
Association has responsibility for the repairs, replacements and maintenance . . . where the antenna would 
be mounted is not controlling.34  
8. CAI argues that the Bureau erred by not discussing Illinois case law and statutes because 
property law is dominated by state law.35  Neither CAI nor the Association made this argument to the 
Bureau in response to the Petitioners Petition for a Declaratory Ruling.36 Furthermore, CAI offers no 
support for its argument, and if there are relevant state statutes or decisions that support CAIs position, 
CAI has failed to cite them.37  The express language in the Woodmere Townhome Declaration gives 
Petitioner an ownership interest in his townhome, including the roof, and nothing offered by the 
Applicants contradicts this language.  
  
25 47 C.F.R.  1.4000(a).
26 See Report and Order, supra note 1, at 19305.
27 See, e.g., Second Report and Order, 13 FCC Rcd at 23897.
28 Reply of Petitioner, Exhibit A at 1-2.
29 Supplement to Petition, Declaration at 3 (document that governs the Association and home owners with respect to 
the properties at Woodmere Townhomes).   
30 Id. 
31 Associations Application for Review at 14 (claiming that other clauses within the Declaration show the 
Association, and not Petitioner, has an ownership interest).  
32 Id. In particular, the Association claims because the maintenance expenses are paid out of Association funds, the 
Association, rather than Petitioner, has an ownership interest.  
33 Reply of Petitioner, Exhibit A at 1-2.
34 In Re Jordan E. Lourie, 13 FCC Rcd 16760, 16763-64 (CSB 1998).  See also Order on Reconsideration, 13 FCC 
Rcd 18962, 18995-96 (1998) (reconsideration of the 1996 Report and Order) (hereafter Lourie).  The rights of 
third parties to enter and/or exercise control over the owners exclusive use area for such reasons as inspection or 
maintenance do not defeat ownership under the Rule.
35 CAI Application for Review at 9.  
36 See, e.g., Association Response to Petitioners Petition for Declaratory Ruling.
37 CAI Application for Review at 9.  
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9. CAI also disputes the Bureaus interchangeable use of the terms property interest and 
ownership interest because a property interest is broader than an ownership interest.38  The Rule 
recognizes several property interests, including direct ownership, indirect ownership or leasehold.39  We 
find the Bureaus use of the term property interest is not significant here.  The Bureau correctly found 
that Petitioner has an ownership interest, direct or indirect, in the roof based on the express terms of the 
warranty deed and Declaration.40
10. Based on CAIs contention that Petitioner has no ownership interest in the roof, CAI 
asserts that Petitioners installation of an antenna on the roof would constitute an uncompensated taking 
of property in violation of the Fifth Amendment to the Constitution.41 Because we agree with the  
Bureaus conclusion that the Petitioner owns the townhome, including the roof,42 CAIs argument is 
without merit.  There was no Fifth Amendment taking.  In addition, in Building Owners and Managers 
Association International v. FCC (BOMA), the United States Court of Appeals for the District of 
Columbia found that the OTARD rule does not constitute a per se taking of a landlords property.43 The 
Court held that a tenant may place an antenna on his rented property because the landlord has consented 
to occupation of the land.44 As the Court held that a tenant installing an antenna on his leased property is 
not a per se taking, then, a fortiori, a townhome owner installing an antenna on property in which he has 
an ownership interest also is not a per se taking.
B. Exclusive Use of the Property
11. For the OTARD rule to apply, the antenna user must have exclusive use or control of the
property, as well as the requisite ownership or leasehold interest.45  We affirm the Bureaus finding that
Petitioner has exclusive use of the property in question.  
12. The Bureau found that Petitioner had exclusive use of his roof because the Declaration 
expressly designates the roof for Petitioners exclusive use.46  The Association and CAI argue that
Petitioner cannot have exclusive use or control of the roof because it is shared with other townhomes as a 
joint roof and other parties are entitled to beneficial use of the roof.47  We conclude that their contention
that the roof is shared is trumped by the express, unambiguous language of the Associations Declaration.  
The Declaration gives Petitioner the exclusive right to use and enjoy the Owners home and Home 
Exterior.48 The home exterior is defined as [the] roof, foundation, steps, footings, decks, outer space of 
exterior walls and garage doors of a home.49  Here the express language in the Associations Declaration 
  
38 CAI Application for Review at 6.
39 See 47 C.F.R.  1.4000(a)(1).  The specific language states explicitly, where the user has a direct or indirect 
ownership or leasehold interest in the property
40 In Re Philip Wojcikiewicz, 18 FCC Rcd 19523, 19525 (MB 2003).
41 CAI Application for Review at 12.  
42 Id.
43 Bldg. Owners and Managers Ass'n Int'l v. FCC, 254 F.3d 89, 97-100 (D.C. Cir. 2001).
44 Id.
45 47 C.F.R.  1.4000(a).  
46 Supplement to Associations Application for Review at 5.
47 Associations Application for Review at 12.  See also CAI Application for Review at 11.
48 Supplement to Associations Application for Review, Declaration at 6 (document that governs the Association 
and home owners with respect to the properties at Woodmere Townhomes).   
49 Id.  
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governs.
13. The Association and CAI cannot rely on the easement granted to the Association to 
perform maintenance on the roof to overturn the Bureaus decision.  As we have previously found, the 
rights of third parties to enter and/or exercise control over the owners exclusive-use area for such reasons 
as inspection or maintenance do not defeat the owners rights under the Rule.50  [E]xclusive use or
control is all that is necessary to come under the protections guaranteed by the Rule51 (emphasis added).  
We conclude that the Associations easement to perform maintenance, while defeating exclusive control, 
does not defeat Petitioners right to the exclusive use of his roof.  Further, the collection of fees from all 
of the homeowners for insurance, repair, replacement and maintenance of the roofs has no bearing on 
Petitioners exclusive use of his roof, which is set forth in the Declaration.  In Lourie, we rejected the 
argument that an Associations responsibility for repairs, replacement and maintenance defeats the 
homeowners exclusive use, saying the obligation to repair and maintain . . . detracts in no way from 
Louries exclusive use of the chimney.52 Therefore, the Bureau correctly found that Petitioner had 
exclusive use of the roof.
IV. CONCLUSION 
14. Based on the record before us, as discussed above, we find the Bureaus decision in this 
matter was correct and in accord with Commission precedent and regulation.  
V. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED, that the Applications for Review filed by the 
Woodmere Townhome Association and the Community Associations Institute ARE DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
  
50 See Lourie, supra, note 34. 
51 See 47 C.F.R.  1.4000(a)(1).
52See  Lourie, supra, note 34.