Telecom - Staff Letter addressed to Pam Dinsmore (Rogers Communications Canada Inc.) and Lixo Investments Limited
Ottawa, 6 June 2024
Our reference: 1011-NOC2022-0268
BY EMAIL
Pam Dinsmore
Vice President, Regulatory
Rogers Communications Canada Inc.
350 Bloor Street East, 6th Floor
Toronto, Ontario M4W 0A1
pam.dinsmore@rci.rogers.com
Lixo Investments Limited
Suite 33, 70 Yorkville Avenue
Toronto, Ontario M5R 1B9
lixotraffic@gmail.com
Subject: Access to 70 Yorkville - Request for Information
In a letter from the Secretary General dated 11 January 2023,Footnote1 the Commission stated that it would continue to monitor Rogers Communications Canada Inc.’s (Rogers) and Lixo Investments Ltd.’s (Lixo) progress in negotiations regarding a formal access agreement to the multi-dwelling unit (MDU) located at 70 Yorkville Avenue, Toronto, Ontario (70 Yorkville). The Commission also stated that it would continue its analysis of the record of Telecom Notice of Consultation 2022-268 (NOC 2022-268) to determine whether any further enforcement actions or other Commission determinations are warranted. The Commission further stated that Rogers was required to report to the Commission, within 48 hours, any change to its ability to access 70 Yorkville or any significant status updates regarding the ongoing negotiations between itself and Lixo, until an agreement is reached or other conclusion regarding NOC 2022-268.
On 11 January 2024, Commission staff sent a request for information to Rogers seeking details on possible issues with access to 70 Yorkville and an update on the negotiations with Lixo for a long-term access agreement to 70 Yorkville.
In its 17 January 2024 response, Rogers stated that after an initial attempt to gain access to 70 Yorkville in July 2023, attempts by Rogers to request access by email and by phone throughout the balance of 2023 went unanswered. Rogers further stated that on 17 January 2024, Lixo sent it a redlined version of a draft access agreement which had not been reviewed by Lixo’s legal representative, Mr. Bucholtz, or approved by Lixo.
In its 19 January 2024 reply to Rogers, Lixo stated that it has not denied access to 70 Yorkville, that Rogers did not send an access request to the agreed-upon email address for such requests until 13 November 2023, and that Lixo responded on the same day with inquiries to which Rogers has yet to respond.
Pursuant to section 37 of the Telecommunications Act (the Act), the Commission may require any person to submit information that is necessary for the administration of the Act. In order to assist the Commission’s assessment of the issues raised in NOC 2022-268 and its enforcement of the Decision, Rogers and Lixo are required to provide a response to the attached questions by 20 June 2024, serving their response on the other party by the same date.
As set out in section 39 of the Act, and in Broadcasting and Telecom Information Bulletin CRTC 2010-961, Procedures for filing confidential information and requesting its disclosure in Commission proceedings, persons may designate certain information as confidential. A detailed explanation on why the designated information is confidential and why its disclosure would not be in the public interest must be provided, including why the specific direct harm that would be likely to result from the disclosure would outweigh the public interest in disclosure. In addition to the confidential version, an abridged version of the document omitting only the confidential information must be filed or reasons why an abridged version cannot be filed must be provided.
Sincerely,
Original signed by
Michel Murray
Director of Dispute Resolution and Regulatory Implementation
Telecommunications Sector, CRTC
c.c.:
Peter Kovacs, RCCI, Peter.Kovacs@rci.rogers.com
Zack Ozani, RCCI, Zack.Ozani@rci.rogers.com
Ren Bucholtz, ren.bucholz@paliareroland.com
Simon Lapointe, CRTC, simon.lapointe@crtc.gc.ca
Request for Information - Questions to Rogers
- Did Rogers and Lixo agree to use a specific email address for access requests to 70 Yorkville, and if so, why was the July 2023 access request to Lixo not sent to the agreed upon email address?
- Indicate whether access has been granted in response to the 13 November 2023 request or any subsequent requests, or whether any progress has been made towards Rogers obtaining access since 17 January 2024. If so, provide the specific dates of these events and all appropriate details.
- Provide comments on the additional information that Lixo requires, as requested on 13 November 2023, before granting access to Rogers (see the list of additional information included in Schedule B of Lixo’s 19 January 2024 reply to the Commission).
- Provide a complete update regarding ongoing negotiations with Lixo for a formal access agreement to 70 Yorkville, including Roger’s position on the remaining issues to be negotiated.
Request for information - Questions to Lixo
Regarding Lixo’s prior invitation to Rogers to participate in the Commission’s voluntary staff-assisted mediation process, Commission staff notes that in Information Bulletin CRTC 2019-184, the Commission stipulated that disputes where the parties have been unable to resolve their issues by other methods would lend themselves to the Commission’s dispute resolution processes, and that the Commission expects parties to have made reasonable efforts to resolve their dispute prior to invoking that process. Commission staff also notes that the Commission has encouraged Rogers and Lixo to continue to seek a mutually beneficial agreement that will provide Rogers with long-term access to Lixo’s building at 70 Yorkville under reasonable terms and conditions. Based on Rogers’ and Lixo’s January 2024 responses to requests for information, it appears that negotiations on the terms of an access agreement were about to resume after several months of unexplained standstill and that the parties had not yet exhausted all negotiating options.
- Provide a complete update on the ongoing negotiations with Rogers regarding a formal access agreement to 70 Yorkville, including Lixo’s position on the remaining issues to be negotiated.
- On the record of NOC 2022-268, Lixo informed the Commission that it had formally offered Rogers access to 70 Yorkville on 17 October 2022, subject to the terms set out below, and in its letter of 9 February 2023, that access to Rogers would be granted on an “ongoing coordinated basis”:
- In the first phase, we ask that you telephone our Traffic Manager at 416-961-5953, within 10 AM to 3 PM, Monday to Thursday, and provide the following information over the phone or, if more appropriate, at the email address that the Traffic Manager will provide:
- Name and badge ID of those to be admitted.
- Requested visit time during Lixo’s operating hours, and estimated duration. One business day’s notice is required.
- Proof of insurance.
- To what part of the building access is required.
- Confirming that all activity will fall within the scope of TD 2022-147 and TNC 2022-268, i.e. access for the purposes of installing, operating, repairing, maintaining, and replacing transmission facilities and ancillary telecommunications equipment. In our view, such activity does not involve, for instance, a substantial expansion of the amount of floor space occupied.
- Regarding Lixo’s statements that it has responded to Rogers’ request for access of 13 November 2023 by requesting additional information (Schedule B of Lixo’s 19 January 2024 reply to the Commission, which includes several requirements that are not found under Lixo’s terms regarding its “ongoing coordinated basis” for access), explain how and why this additional information differs from Lixo’s proposed terms for access (as stipulated in Lixo’s 17 October 2022 offer to Rogers, for which we have reproduced the terms above).
- In the first phase, we ask that you telephone our Traffic Manager at 416-961-5953, within 10 AM to 3 PM, Monday to Thursday, and provide the following information over the phone or, if more appropriate, at the email address that the Traffic Manager will provide:
- Date modified: