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Broadcasting Public Notice CRTC 2003-18
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Ottawa, 11 April 2003
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Application of the concept of end-user choice in multiple unit dwelling condominiums
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The Commission determines that, in the case of condominiums, the concept of end-user choice will be applied at the level of the condominium board of directors or strata council.
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Background
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1.
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In Broadcasting Distribution Regulations, Public Notice CRTC 1997-150, 22 December 1997 (Public Notice 1997-150), the Commission announced measures to implement its policy that requires end-user choice in multiple unit dwellings (MUDs). The policy on end-user choice implemented in Public Notice 1997-150 did not, however, make a distinction between MUDs owned by a condominium corporation (condominium) and MUDs where ownership resides with a landlord (rental MUDs).
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2.
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On 10 October 2001, the Commission received a complaint from Novus Entertainment Inc. (Novus) regarding the provisions of a building access agreement between Bell ExpressVu Limited Partnership (ExpressVu) and the owners of Strata Plan #4050, a condominium in Vancouver (the Novus complaint). The application of the policy on end-user choice in condominiums was an issue raised in the Novus complaint. The Commission considered that it was appropriate to suspend consideration of the Novus complaint until the completion of a policy proceeding in respect of end-user choice in condominiums.
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3.
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This policy proceeding was initiated by Call for comments on the application of the concept of "end-user choice" in the context of distribution services delivered to condominiums, Broadcasting Public Notice CRTC 2002-11, 28 February 2002, in which the Commission called for comments on whether, in the case of a condominium, the concept of end-user choice should apply at the level of the holder of each unit or at the level of the condominium board or strata council (Board or Strata Council).
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Summary of comments
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4.
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The Commission received 20 submissions commenting on a variety of issues concerning the concept of end-user choice in the context of distribution services delivered to condominiums. Parties submitting comments included the Canadian Cable Television Association (CCTA), ExpressVu, Novus, various condominium boards, councils or associations, as well as several individuals. A complete list of the parties that submitted comments is set out in the Appendix. The comments may be summarized as follows.
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Support for choice at the Board or Strata Council level
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5.
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Several parties, including the CCTA and ExpressVu, submitted that the principle of end-user choice should be applied at the Board or Strata Council level in the case of condominiums. Most of these parties noted that, while applicable laws and regulations may vary by province, individual unit holders are generally required to sign declarations or agreements that allow the Board or Strata Council to act on their behalf on issues dealing with the common elements of the condominium. The Board or Strata Council is generally elected by the unit holders. The CCTA suggested that there were also practical considerations supporting its position, including the placement of the distribution equipment on both the common property of the condominium and the property of the unit holder. According to the CCTA, this often means that a broadcasting distribution undertaking (BDU) seeking access to a MUD must deal with the Board or Strata Council as well as with the unit holder.
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Support for choice at the level of the unit holder
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6.
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Novus, a condominium property management firm and five individuals considered that the concept of end-user choice in a condominium should be applied at the level of the individual unit holder or occupant. These parties generally supported competition and freedom of choice, and suggested that there should be no difference in the way the policy on end-user choice is applied between condominiums and rental MUDs.
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Alternative approach
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7.
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Two individuals, Mr. Dave Winslade and Mr. Ken White, submitted that the person who pays the bill should be considered the end-user. Under this approach, in situations where the Board or Strata Council subscribes to the service of a BDU and provides the service to unit holders, the condominium corporation would be considered the end-user. However, in cases where the unit holder subscribes to the service, the unit holder would be considered the end-user.
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The Commission's determination
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8.
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As noted above, the approach set out in Public Notice 1997-150 does not distinguish between rental MUDs and condominiums. This distinction was raised in the Novus complaint and emerged as an issue that required clarification.
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9.
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As also noted above, three alternatives were advanced with respect to which party should be considered the end-user in condominiums: the individual unit holder, the Board or Strata Council, or the party who pays the service provider, whether it be the unit holder or the Board or Strata Council.
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10.
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With regard to the third alternative, since it would require identifying the end-user on a case-by-case basis, the Commission considers that it would be impractical and difficult to administer.
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11.
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As to whether the choice as to distribution undertaking should rest with the individual unit holder or with the Board or Strata Council, the Commission notes that, in a condominium, common elements of the property are managed through the Board or Strata Council, which is mandated to act on behalf of, and in the best interest of, the owners. As discussed on the record of this proceeding, the Board or Strata Council is democratically elected by unit holders. The record also indicates that, in cases where unit holders' rights may be materially affected, the Board or Strata Council is generally required to conduct a vote and act in accordance with the wishes of the majority of the unit holders. By contrast, in rental MUDs, occupants do not participate in decisions regarding the management of the building.
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12.
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In light of the above, the Commission considers it appropriate that, in a condominium, the choice as to which distribution undertaking or undertakings will provide services to the building be made by the Board or Strata Council.
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Novus complaint
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13.
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The Commission notes that it suspended consideration of the Novus complaint pending the outcome of this policy proceeding. The Commission will allow both Novus and ExpressVu to provide additional comments before making its decision on the Novus complaint. Novus and ExpressVu may file comments that take into account the finding set out in this Public Notice by 22 April 2003, copying each other. Novus and ExpressVu may then file reply comments by 1 May 2003, copying each other.
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Secretary General
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This document is available in alternate format upon request and may also be examined at the following Internet site: http://www.crtc.gc.ca
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Appendix to Broadcasting Public Notice CRTC 2003-18
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Parties that submitted written comments
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Baywest Management Corporation
Bell ExpressVu Limited Partnership
Bowles, D.
Brunton, Bruce
Canadian Cable Television Association
Condominium Cable Communications (C-3) Committee
Cox, Ronald
Cullen, James E.
DCC125
Durcan, Jim
Fleury, Frank
Hamilton, Alex D.
Manitoba Chapter of Canadian Condominium Institute
Nelligan O'Brien Payne LLP
Novus Entertainment Inc.
Shearon, Paul
Westlake, Ken
White, Ken
Winnipeg Condominium Corporation No. 105
Winslade, Dave
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Date Modified: 2003-04-11
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