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Ofcom Fends Off EE & Three 5G Spectrum Legal Challenges

Tom Jowitt is a leading British tech freelance and long standing contributor to TechWeek Europe

Legal challenges by EE and Three to spectrum auction plans defeated by Ofcom in High Court, but Three will appeal

Ofcom has secured a legal victory after it defeated two legal challenges which it claims could have delayed the rollout of 5G networks in the UK.

The two separate challenges came from EE (now owned by BT) and Three, after they had objected to the British communication regulator decision to limit the amount of spectrum any bidder could own in the forthcoming auction.

But Three has told Silicon that it is seeking leave to appeal against the decision, and a hearing could take place next month.

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Spectrum Auction

Ofcom had been seeking to auction 40MHz worth of 2.3GHz airwaves, which can be used right away to support existing 4G services, and 150MHz of 3.4GHz of bandwidth that is earmarked for 5G in 2020.

Ofcom wants to limit any single operator to 255MHz of ‘immediately usable’ spectrum (that is 800MHz, 900MHz, 1400MHz, 1800MHz, 2100MHz and 2.6GHz) and 340MHZ of all airwaves available in the UK – an overall cap of 37 percent.

Three has actively campaigned for a lower cap of 30 percent, whereas EE opposed the restriction in principle (it apparently currently holds around 47 percent). That said, EE has indicated it would let the matter rest.

Three Appeal

It is understood that if Three were given leave to appeal, the hearing would take place in mid January, so as not to delay the spectrum auction.

“We are disappointed by the initial ruling of the court as a fairer distribution of spectrum is vital for UK consumers and the digital economy,” a Three spokesperson told Silicon

“The team at Three is committed to providing the best possible offering for our customers and we are seeking permission to challenge the ruling in the Court of Appeal urgently,” the spokesperson added. “Ofcom does not expect 5G to roll out in the UK until 2019/20 at the earliest, so this will have no impact on the delivery of this new technology.”

But Ofcom is understood to be disapointed at Three’s stance, and said it intends to proceed with the auction as soon as possible.

“We’re disappointed that Three is seeking permission to appeal to the Court of Appeal,” a spokesman told the BBC.

“We believe the High Court judgement is clear and Three’s actions may further delay the auction, which is not in the interests of the UK.”

It is worth remembering however that 5G as a standard has not even been been defined yet. 5G services are not expected to arrive in the UK before 2020 or 2021 at the earliest.

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