EE set to mount legal challenge over rules for upcoming spectrum auction

21 Aug 2017

British mobile network operator (MNO) EE, which is owned by BT Group, is planning to lodge a legal challenge to the proposed rules for Ofcom’s upcoming auction of 5G-suitable spectrum, according to the Financial Times.

It is claimed that EE will challenge the auction rules in the High Court, should the regulator not reverse its plans to cap the amount of spectrum that any one operator can hold. As previously reported by CommsUpdate, under Ofcom’s current plans for the sale of 2.3GHz and 3.4GHz frequencies, it will limit the amount of spectrum that can be won in the former band, while also placing an overall cap on the total frequencies that any single company can lay claim to across both bands. Specifically, Ofcom will introduce a cap of 255MHz on the ‘immediately useable’ spectrum that any one operator can hold following the auction, meaning that EE will not be able to bid for spectrum in the 2.3GHz band. In addition, Ofcom will implement a cap of 340MHz on the overall amount of mobile spectrum a single operator can hold once the sale process concludes. As a result of this restriction, EE would only be able to win a maximum of 85MHz in the 3.4GHz band.

While another of the UK’s MNOs, Three UK, has already confirmed it is taking legal action against the sale process, it by comparison has argued that the spectrum ownership cap proposal is too low, and is pressing for it to be set at 30%.

In confirming its intentions, EE noted that it had while it has accepted Ofcom’s cap on 4G-suitable spectrum in the 2.3GHz band, it believes it should be able to participate freely in the sale process for 3.4GHz frequencies. To that end, EE was cited as saying of the matter: ‘In response to Three’s action, we have made the difficult decision to challenge the proposed structure of the next auction of mobile spectrum’. Responding to suggestion this development could delay the auction process, meanwhile, an EE spokesman was cited by Reuter as saying: ‘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.’

United Kingdom, BT Group (incl. Openreach), EE, Hutchison 3G UK (Three UK), Ofcom