Court allows FreshTel to keep 5G-suitable frequencies; regulator appeals

9 Jul 2019

Ukraine’s National Commission for State Regulation of Communications & Informatization (NCCIR or NKRZI) is appealing a first-instance court ruling overturning the regulator’s February 2019 decision to cancel the nationwide 3.4GHz-3.6GHz wireless broadband operating licence of Ukrainian High Technologies (FreshTel) for failure to utilise frequencies. As reported by, FreshTel director Sergey Veretyuk confirmed that the company’s services were operating in ‘emergency mode’ before being ‘suspended’ in October 2018 following a network failure; according to him, the WiMAX equipment used by FreshTel had not been manufactured for four years, implying that the network could not be satisfactorily repaired. The court concluded that the NCCIR was wrong in asserting that FreshTel wilfully neglected to use its frequencies. Whilst evidence collected via monitoring by the Ukrainian State Centre of Radio Frequencies (UCRF) showed only occasional ‘flickers’ of network signal activity, the court ruled that: ‘the current legislation of Ukraine does not contain the concept of full use of the radio frequency resource, therefore any statements of the defendant [the NCCIR] about the incomplete use of the radio frequency resource by the plaintiff are only his assumptions’. FreshTel’s current 15-year licence is due to run until November 2021.

FreshTel is assumed to be aiming to hold onto the 5G-suitable 3.5GHz frequencies until a 5G licensing tender is launched in Ukraine – enabling it to receive compensation for relinquishing the spectrum, in the same manner as MMDS Ukraine (which was compensated for giving up 2.6GHz spectrum in early 2018 ahead of Ukraine’s 4G licence auctions after the NCCIR had failed in attempts to confiscate its licences for under-utilisation). FreshTel is owned via Karvest Holdings (British Virgin Islands) but its ultimate owner is unknown; the firm was previously controlled by billionaire Victor Pinchuk.