EE and Three lose appeals against Ofcom

20 December 2017 | Natalie Bannerman


The UK High Court has rejected appeals made by EE and Three, against Ofcom over caps to spectrum buying.

Ofcom 160 x 186Under the new rules introduced by Ofcom, mobile operators are only permitted to own 37% of usable spectrum by the year 2020 rather than the smaller 30% that Three were asking for. Currently, BT/EE holds 42% of the current amount. Vodafone holds around 29%, while Three owns 15% and O2 owns 14%.

Commenting on the decision, a spokesperson for EE said: “While we don’t believe that spectrum caps in this auction are in the best interests of consumers, we’re pleased that the court has reached a decision so quickly and are now looking ahead to investing in the best mobile experience across the UK.”

But it’s not only EE who are talking about the decision, Mark Evans, CEO of Telefonica UK, owner of O2, said: “We welcome today’s ruling. The judge was unequivocal in his decision and it’s now imperative that the industry does everything possible to avoid further delays to the spectrum auction.”

Three were first to launch an appeal back in July with its CEO, Dave Dyson, saying: "By making decisions that increase the dominance of the largest operators, Ofcom is damaging competition, restricting choice and pushing prices up for the very consumers that it is meant to protect.” Followed by EE in September.

On this latest decision, A Three spokesperson said: “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.”

But as ever Three are not going to take this lying down adding: "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.”

Three have said that it plans to take this challenge to the Court of Appeal by the week commencing 15th January but if it is unsuccessful, it will make no further appeals.

But not everyone in the industry is happy about that, a spokesperson on behalf of O2, said: “Three have had their day in the High Court and lost so we are frustrated by reports that they may seek to appeal the judgement. This is directly contrary to Three’s statement earlier this year that the litigation would only delay the spectrum auction by three months. Further delays are not in the interests of consumers, businesses and UK plc.”

But Three denies delaying the start of the 5G auction, something Vodafone CEO, Nick Jeffery has criticised BT for in the past. “Ofcom does not expect 5G to rollout in the UK until 2019/20 at the earliest, so this will have no impact on the delivery of this new technology,” added its spokesperson.

“I’m calling on Ofcom to move forward and set a date for the auction as soon as possible,” added Evans. “This is in the interests of businesses and consumers across the UK. Some of the frequencies can be used immediately to improve customer experience, boost investment in digital connectivity and deliver economic growth. There is simply no time to waste.”

And Ofcom says it plans to do exactly that. “We welcome the High Court’s judgment. Our priority has always been to release these airwaves as soon as possible so customers can get more reliable mobile phone reception. We’ll now proceed with the auction as quickly as possible.”