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Telecom - Staff Letter addressed to Pam Dinsmore (Rogers Communications Canada Inc.) and Lixo Investments Limited

Ottawa, 24 October 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: Request for Information - Negotiations between Lixo and Rogers for an access agreement to 70 Yorkville

In the Secretary General letter dated 11 January 2023,Footnote1 the Commission stated that it would continue to monitor progress in negotiations between Rogers Communications Canada Inc.’s (Rogers) and Lixo Investments Ltd.’s (Lixo) 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) in order to determine whether any further enforcement actions or other Commission determinations are warranted.

On 6 June 2024, Commission staff requested that Rogers and Lixo provide an update on the negotiations for access to 70 Yorkville, as well as further details regarding the access difficulties reported by Rogers. Staff’s request also contained specific questions regarding the remaining issues to be negotiated, including Lixo’s list of requested information and other requirements in response to Rogers’s access requests.

Lixo, in its 20 June response, stated that Rogers had not responded to Lixo’s latest draft agreement proposal, that Rogers had requested access to a different municipal address (86-90 Yorkville) that was not the subject of CRTC 1011-NOC2022-0268 or the draft agreement, and that Rogers refused to engage in Commission staff-assisted mediation to resolve the access dispute.

Rogers, in its 20 June response, stated that each time they request access from Lixo, they must answer a list of questions and agree to a set of demands that are unreasonable and are used to delay and deny requests. Rogers also stated that Lixo’s list of questions and demands, as well as Lixo wanting a short-term agreement were the two main issues remaining to be negotiated.

Commission staff is concerned by some of the comments submitted by Lixo regarding a request for access from Rogers to a MDU that is not the subject of CRTC 1011-NOC2022-0268. Commission staff reminds parties that all the responsibilities and rights related to the MDU access framework, including the obligation to provide access to an MDU under reasonable terms and conditions apply to all access requests to MDUs. It is not limited to MDUs for which the Commission has issued decisions.

Further, Lixo reiterated their argument that Rogers is unwilling to participate in staff-assisted mediation. Staff-assisted mediation is a voluntary process that both parties must agree to. As indicated in Information Bulletin CRTC 2019-184, the Commission expects parties to have made reasonable efforts to resolve their dispute before invoking that process. Based on the responses received from both parties, it appears to Commission staff that the parties have not exhausted all negotiating options.

Commission staff would like to clarify that where a formal request for staff-assisted mediation has been made and all of the required characteristics set out in paragraph 4 of Information Bulletin CRTC 2019-184 have been met, Commission staff will be in a position to assist parties in reaching a consensual resolution. If staff-assisted mediation is held, normally over two full consecutive days, both parties must come to the mediation fully prepared to negotiate and have a mandate and authority to negotiate and make counteroffers.

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 Telecom Decision CRTC 2022-148, Rogers and Lixo are required to provide a response to the attached questions by 7 November 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
Lixo Investments Limited, lixotraffic@gmail.com
Ren Bucholtz, ren.bucholz@paliareroland.com
Simon Lapointe, CRTC, simon.lapointe@crtc.gc.ca

Attach. (1)

Request for Information – Questions to Rogers

  1. Regarding Rogers’ statements that it continues to have problems accessing the MDU located at 70 Yorkville. Provide an update on the situation, including any additional information regarding the circumstances surrounding these difficulties and any supporting evidence, along with all relevant documentation.
  2. Provide a complete update on the ongoing negotiations with Lixo for a formal access agreement to 70 Yorkville including all remaining issues to be negotiated and Roger’s position on those issues.
  3. Although access to 86-90 Yorkville is not within the scope of NOC 2022-268 and therefore this new situation will not affect the Commission’s determinations in this proceeding, Commission staff considers this new situation to be relevant to its overall assessment of the ongoing access negotiations between the parties. Therefore, regarding Rogers’ statements that it is also having problems accessing the MDU located at 86-90 Yorkville, a building owned or operated by Lixo, provide an update on the situation, including any additional information on the circumstances surrounding these difficulties and any supporting evidence, along with all relevant documentation.

Request for information - Questions to Lixo

  1. 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:
    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.

Lixo also stated in its letter of 9 February 2023 that access would be granted to Rogers on an “ongoing coordinated basis”. Despite these two statements, Rogers asserts that it is still having problems accessing the building. Schedule B of Lixo’s 19 January 2024 reply to the Commission seems to include several requirements not found in the above terms offered on 17 October 2022, which would suggest that contrary to Lixo’s assertions, access has not been granted on an “ongoing coordinated basis”. Explain how and why this additional information in Schedule B differs from the above terms proposed by Lixo for access on 17 October 2022.

  1. Provide a complete update on the ongoing negotiations with Rogers for a formal access agreement to 70 Yorkville, including all remaining issues to be negotiated and Lixo’s position on those issues.
  2. Although access to 86-90 Yorkville is not within the scope of NOC 2022-268 and therefore this new situation will not affect the Commission’s determinations in this proceeding, Commission staff considers this new situation to be relevant to its overall assessment of the ongoing access negotiations between the parties. Therefore, provide a complete update regarding Roger’s request for access to 86-90 Yorkville, including Lixo’s perspective on the information (or terms) required from Rogers to treat this access request.
  3. In paragraph 38 of TD 2022-148, the Commission stated the following:
“Lixo denies knowledge of RCCI’s installed telecommunications facilities, the location of the facilities in 70 Yorkville Avenue, and the services currently being provided by RCCI to occupants. Lixo submitted that RCCI is not entitled to access the building given that it has not provided this information to Lixo. The Commission finds that the fact that RCCI has not provided all of the information requested by Lixo is not by itself sufficient to justify denying access to 70 Yorkville Avenue.’’

Given the above, please explain:

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