You cannot exclude a service provider.
In a recent decision,
the Canadian Radio-Television and Telecommunications Commission (“CTRC”) threatened to
cut off all telecommunications services to a condominium building if the
condominium corporation did not provide timely access on reasonable terms and
conditions to a fourth telecommunications service provider (“TSP”).
There were already three TSP’s
providing services to TSCC No. 2322 (the “Corporation”). Discussions between the
Corporation and Beanfield Technologies Inc. (“Beanfield”) failed to result in any
access rights being granted to Beanfield. The Corporation’s position was that:
§ The building’s
infrastructure could not accommodate Beanfield’s network, as there wasn’t
sufficient capacity in the existing conduits for Beanfield’s fibres;
§ Allowing Beanfield to
install additional conduits (which Beanfield offered to do at its own expense)
would cause unnecessary disruption to residents;
§ If access was given to
Beanfield to construct additional conduits, the construction would have to be
done by contractors approved by the Corporation;
§ As there were already
three TSP’s in the building there was sufficient competitive choice for
residents to select a TSP.
Beanfield brought an
application to the CRTC requesting that the CRTC require the Corporation to
provide access to Beanfield. Beanfield also requested that access be granted on
commercially reasonable terms as set out in either its standard access
agreement or in the access agreements which the Corporation had previously
entered into with Bell or Rogers.
The CRTC determined that at a
minimum Beanfield should be entitled to access from the street to the
building’s main terminal room, access to the units upon request for its
services, plus access required for the purpose of installing, operating, maintaining
and replacing Beanfield’s facilities. However, the CRTC felt that it was not
appropriate for the terms of either the Bell or Rogers contract to apply as
Beanfield was not entitled to benefit from negotiations in which it did not
participate. The CRTC also did not support the Corporation’s position
that Beanfield’s installations could only be carried out by contractors
approved by the Corporation, on the basis that this was a term that the parties
should negotiate between themselves.
Ultimately the CRTC did not
order the Corporation to provide access to Beanfield. Instead, the CRTC left it
to the parties to finalize negotiations for access, with strong negative
ramifications for the Corporation and in particular, the residents, if
Beanfield was not granted the access rights as described above:
§ If access is not granted
to Beanfield within 60 days, then the existing TSP’s would not be permitted to
provide services to any new resident of the condominium or to any current
resident who was not an existing customer of the applicable TSP.
§ If access is not granted
to Beanfield within 90 days, then the existing TSP’s would not be able to
upgrade or modify the services currently being provided to existing customers.
§ If access is not granted
within 120 days, then the CRTC would consider either issuing an order requiring
that access be granted to Beanfield or alternatively, issue a decision that the
existing TSP’s would no longer be permitted to provide any services to the
condominium residents.
The CRTC decision was aimed at
facilitating competition and maximizing consumer choice, so that residents
would be able to select the TSP of their choice regardless of the type of
dwelling in which they resided.
This decision by the CRTC puts all condominium corporations on notice
that they cannot deny timely access on reasonable terms and conditions to any
new TSP.Technology changes everything.
Time to sell?
Call me
David Pylyp
647 218 2414
