EE has threatened to take legal action in order to lower Ofcom’s proposed spectrum cap, if Three presses ahead with a suit of its own to lower the restrictions.
Three has long campaigned for a cap of 30 percent of the available airwaves and was angered by Ofcom’s proposed 37 percent limit ahead of the sale of 2.3GHz and 3.4GHz spectrum later this year.
Under these proposals, any single operator will be limited 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.
As of July 2017, BT-EE has 255MHz so is banned from bidding in the 2.3GHz auction but could gain as much as 85MHz of the 3.4GHz band. Vodafone has 176MHz so is limited to 85MHz of each, while Three and O2 have no restrictions.
At the time of the announcement, Ofcom said recent developments, such as Three’s takeover of UK Broadband, operator of the Relish fixed wireless broadband service, and Qualcomm’s sale of 1400MHz airwaves to both Three and Vodafone, had influenced its proposed rules which are designed to promote competition.
EE had reluctantly accepted the cap, and its expulsion from the 2.3GHz sale, on the basis it would be able to participate in the 3.4GHz auction. It fears that if Three is not challenged, the cap could be lowered.
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It also fears that any precedent could hinder it in future auctions for 3.4-3.8GHz spectrum earmarked for 5G and low range 700MHz. It would prefer for all bands to be sold in one go, creating certainty for operators and safeguarding competition.
“In response to Three’s action, we have made the difficult decision to challenge the proposed structure of the next auction of mobile spectrum,” said an EE spokesperson. “We need to protect our customers’ mobile experience, and help build the platform for the UK to have the highest quality 5G networks.
“We’re supportive of Ofcom’s goal to release airwaves quickly, and we don’t want to stand in the way of that. We pragmatically accept that we are excluded from the 2.3GHz auction for 4G, and encourage Ofcom to continue without our participation.
“The UK needs a clear path to the introduction of 5G, so we are suggesting restructuring the 5G auction to introduce more 5G spectrum in one go – we want this to happen as soon as possible.
EE rejects claims that legal action will delay the process as its legal action would run concurrently with Three’s complaint. The 2013 auction of 800MHz and 2.6GHz spectrum was continuously delayed because of legal challenges.
O2 CEO Mark Evans told the Financial Times that any delay would harm the UK economy and its communications services.
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