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Telecom - Secretary General Letter addressed to various parties

Ottawa, 11 January 2023

Our reference: 8622-R28-202105304, 1011-NOC2022-0268

BY EMAIL

Philippe Gauvin
Assistant General Counsel
Bell Canada
160 Elgin St., Floor 19
Ottawa, ON K2P 2C4
bell.regulatory@bell.ca

Christopher Hickey
Director, Regulatory Affairs
Distributel Communications Limited, Primus Management ULC and Navigata
801 – 3300 Bloor Street West
Toronto, Ontario, Canada M8X 2X2
christopher.hickey@distributel.ca

Pam Dinsmore
Vice President, Regulatory
Rogers Communications Canada Inc.
350 Bloor Street East, 6th Floor
Toronto, Ontario M4W 0A1
pam.dinsmore@rci.rogers.com

Subject: Lifting of specific enforcement actions in Telecom Decision 2022-148 regarding access to the multi-dwelling unit at 70 Yorkville Avenue, Toronto, Ontario

In Telecom Decision 2022-148Footnote1 (the Decision), the Commission approved in part an application by Rogers Communications Canada Inc. (RCCI) requesting that it be granted timely access under reasonable terms and conditions to 70 Yorkville Avenue (70 Yorkville), a multi-dwelling unit (MDU) owned and operated by Lixo Investments Limited (Lixo).

Telecommunications services offered by any local exchange carriers (LECs) and carrier Internet service providers (ISPs) at 70 Yorkville are currently subject to certain restrictions, pursuant to section 24 of the Telecommunications Act (the Act), as a mechanism to enforce the Commission’s MDU access framework and promote competition so that end-users have the ability to access the telecommunications service provider of their choice. Specifically, because RCCI did not obtain access to 70 Yorkville by 30 days from the date of the Decision, the following restriction was imposed: “any LECs and carrier ISPs already providing services to residential, retail, and commercial occupants of 70 Yorkville via copper wire and fibre are not permitted to

The Commission also determined that if at 45 days from the date of the Decision RCCI did not report that it was granted access, it would consider increasingly stringent regulatory measures, such as imposing requirements under sections 24 and 42 of the Act. As a result, the Commission initiated Telecom Notice of Consultation 2022-268Footnote2 (the Notice), to determine what further enforcement actions might be required.

The Commission noted in the Decision that these cumulative restrictions would remain in force until the Commission’s receipt of the report from RCCI that access has been granted under reasonable terms and conditions, at which point the restrictions would be considered lifted.

In response to a Request for Information (RFI) sent to RCCI on 25 November 2022, RCCI informed the Commission on 1 December 2022 that it obtained short-term access to 70 Yorkville on 9 and 30 November 2022, for the purpose of repairing its faulty equipment, as identified in the Decision.  

RCCI submitted that it has not yet filed a report, consistent with the direction of the Decision to inform the Commission of its access to 70 Yorkville within 24 hours of having been granted access, because the limited access on a provisional basis that was subject to terms determined by Lixo did not constitute timely access under reasonable terms and conditions. Lixo submitted that it fulfilled the requirements of both the decision and the 2003 MDU access FrameworkFootnote3 by providing access to RCCI on two occasions and proposed a one year written agreement.

In the Decision, the Commission considered that timely access under reasonable terms and conditions—such that the MDU access framework is satisfied—consisted of, at a minimum, immediate access by RCCI to 70 Yorkville for the purposes of installing, operating, repairing, maintaining, and replacing transmission facilities and ancillary telecommunications equipment.

Given that RCCI was allowed to repair its faulty equipment and that Lixo has shown openness to negotiate an access agreement, the Commission considers that RCCI was granted access. The Commission also considers that lifting the conditions restricting telecommunications service by LECs and carriers ISPs in the building at 70 Yorkville imposed in the Decision, would be to the benefit of all occupants of 70 Yorkville and in the general interest of the public.

However, access was only provided five months after the publication of the Decision, and four months after the restrictions were put in place. As such, the Commission does not consider that access was granted in a timely manner, as was required by the Decision. The Commission notes that as a direct result of this untimely access, occupants of 70 Yorkville were affected by the above noted restrictions for a longer period than necessary.

Given the circumstances, the Commission hereby lifts the restrictions imposed in the Decision. However, the Commission will continue to monitor the parties’ progress in negotiations and continue its analysis of the record of the Notice, in order to determine whether any further enforcement actions or other Commission determinations are warranted, as outlined in the Notice.

As an extension to the conditions imposed in the Decision, RCCI is required to report to the Commission, within 48 hours, any change to their ability to access 70 Yorkville or any significant status updates regarding the ongoing negotiations for a formal access agreement with Lixo until either an agreement has been reached, or until a conclusion is reached regarding NOC 2022-268.

Finally, the Commission is encouraged by the fact that negotiations have progressed and encourages parties to continue to seek a mutually beneficial agreement that will provide RCCI with long-term access to Lixo’s building at 70 Yorkville under reasonable terms and conditions.

Parties are expected to continue to negotiate in good faith.

Sincerely,

Original signed by

Claude Doucet
Secretary General

c.c.:  Peter Kovacs, RCCI, Peter.Kovacs@rci.rogers.com  
Zack Ozani, RCCI, Zack.Ozani@rci.rogers.com
Lixo Investments Limited, lixoproperties@gmail.com
Bram Abramson, bram@32M.io
Philippe Nadeau, CRTC, Philippe.Nadeau@CRTC.gc.ca

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