EE and Three Have Lost Their Respective Legal Fights Over the 5G Spectrum Auction

By Tom Pritchard on at

Both EE and Three have issues with how Ofcom is handling the upcoming 5G spectrum auction, and have taken the matter to court to try and get their own way. Both fights were over different things, but the courts have ruled in favour of Ofcom.

Three has made a big fuss over how BT, which owns EE, has an unfair advantage because of how much money its able to spend at spectrum auctions. So it wanted Ofcom to further limit the amount of spectrum the telecoms giant can purchase. EE, on the other hand, felt that the existing 37 per cent spectrum cap was totally unfair and demanded it be scrapped.

Today, however, the High Court has thrown out both cases, noting that Ofcom had done the appropriate research and properly modelled how different caps would affect the auction - and the resulting consumer choice.

There are two bands of mobile spectrum available in the upcoming auction. 40 MHz in the 2.3 GHz range will be available for immediate use, and is designed to help the major networks improve their existing 4G coverage. Also available is 150 MHz in the 3.4 GHz band, which is being set aside for the introduction of 5G. Ofcom has placed a 255 MHz cap on the 2.3 GHz band, which means BT and EE won't be able to make any bids at all. There will be a 340 MHz cap on all mobile spectrum, which limits BT to 85MHz on the 3.4 GHz band.

Ofcom’s findings are evidence based and justified. To arrive at its Decision Ofcom engaged in a detailed predictive analysis of how the market would work in the future under a series of different assumptions and scenarios. It consulted upon its economic and econometric analysis and modelling. In the Decision it sought to strike a delicate balance between protecting competition and consumers, on the one hand, and setting restrictive caps which were not disproportionate to BT/EE. The balancing exercise was sound.

I therefore reject the argument of H3G that the balance struck was too generous to BT/EE and I also reject the argument of BT/EE that it was too tight and rigid.

The Financial Times notes that both companies can appeal the decision, though doing so would likely delay the already-delayed auction even further. Ofcom has welcomed the High Court's judgement and announced its intention to proceed with the auction as quickly as possible. Let's just hope the networks can accept the decision and move onto purchasing lovely, lovely spectrum. If Three could improve its signal quality along trainlines, I would be so happy. Actually I'd just accept being able to get a data signal in the bathroom at this point. [Judiciary.gov.uk via Engadget]


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