Telecommunication technologies such as telephone, cable and internet services are evolving. Historically, most condominiums were wired for telephone service by Bell and cable service by Rogers. Both companies now offer a full range of telecommunications services through their building infrastructure.
Increasingly, telecommunications service providers to condominiums are seeking permission to upgrade their existing infrastructure. For a service provider such as Bell, this includes installing fibre optics in the building to allow for the provision of enhanced telecommunications services.
There are also many new players who are seeking to provide telecommunications services to residents of condominiums. These service providers are approaching condominiums seeking permission to install their own telecommunications infrastructure to allow them to offer their services to residents thus providing competition to the traditional providers.
Whether seeking to upgrade an existing telecommunication system or installing a new one, the service provider will ask the condominium to sign an access agreement. The proposed access agreement should be reviewed by the corporation’s solicitor who may seek amendments to the agreement to deal with issues such as insurance and indemnification.
These access agreements grant licences over the common elements to the service provider and/or its agents to install, upgrade and modify equipment necessary to provide telecommunications services. Ontario’s Condominium Act, 1998 (the “Act”) requires that a condominium pass a by-law to grant a licence over the common elements. An exception to this requirement is when the licence is contained within a telecommunications agreement for a network upgrade to a telecommunications system that services the units in a corporation or in an agreement for a new telecommunications system. In these circumstances, the corporation is required to provide notice to the owners of the proposed agreement pursuant to section 97 of the Act as though it were a change in service that a corporation provided to the owners. This makes it easier for condominiums to enter into these agreements to allow for greater competition and end-user choice.
The notice to the owners will advise of the board’s intention to enter into an agreement with the service provider and will contain a general description of the services that will be available to the residents. Owners will have 30 days from receiving the notice to requisition a meeting of owners to vote on entering into the agreement. A requisition must be signed by the owners who own at least 15% of the units. If the owners do not requisition a meeting within 30 days, the board can then enter into the agreement. If a requisition is made by at least 15% of the owners, the board will have to hold an owners meeting to vote on the proposed agreement.
Can a condominium refuse to enter into an access agreement with a telecommunications service provider seeking access to the condominium to install network facilities to offer its services to the residents? Perhaps, but only at the risk of having all internet and television service to the building cut off.
In a recent decision of the Canadian Radio-television and Telecommunications Commission (“CRTC”) involving an application by Beanfield Technologies Inc. (“Beanfield”) for access to a condominium, the CRTC ruled that:
- if Beanfield was not granted access within 60 days of the date of the decision then the existing service providers to the condominium would not be permitted to provide services to any new resident of the building nor to any current resident who was not an existing customer of the applicable service provider;
- if Beanfield was not granted access within 90 days of the date of the decision then the existing service providers would not be permitted to upgrade or otherwise modify the services they are providing to any current resident; and
- if Beanfield was not granted access within 120 days of the date of the decision then the Commission would explore all regulatory options available to it, including:
- issuing an order under section 42 of the Telecommunications Act, which allows the CRTC, by order, to require or permit any telecommunications facilities to be provided, constructed, installed, altered, moved, operated, used, repaired or maintained or any property to be acquired or any system or method to be adopted, by any person interested in or affected by the order, as the CRTC determines to be just and expedient; and
- issuing a decision that could result in the existing service providers not being permitted to provide any services to residents of the corporation.
The condominium in this case unsuccessfully argued that the building was already serviced by three service providers and therefore residents were not denied access to competitive telecommunications service providers. This decision of the CRTC is similar to previous decisions in applications for access to two condominiums in Toronto by Bell.
The policy framework of the CRTC aims to facilitate competition and end-user choice regardless of the type of dwelling it is in. When faced with a request for access by a new service provider, the corporation should take all reasonable steps to negotiate reasonable terms to allow the service provider access to the building to facilitate competition and maximize consumer choice.
Many service providers will also ask the condominium to sign a marketing agreement that will give the service provider certain marketing rights. It may also include obligations requiring the condominium to distribute notices, post signs or provide resident lists among others. These marketing agreements should also be reviewed by the corporation’s solicitor.
As autumn approaches, condominium corporations should ensure that all exterior construction projects are on their way to being completed before winter. It is always important that Boards and Property Managers consult with their condominium corporation’s engineers and lawyers to ensure that the construction schedule for any new project is clearly defined.