Three's litigation delays Ofcom spectrum auction

An update on the timetable for the upcoming auction of 2.3 and 3.4 GHz spectrum bands has been published by Ofcom in the UK.

Part of the spectrum to be auctioned — the 2.3 GHz band — can be used by mobile companies immediately to improve services for customers. The 3.4 GHz spectrum band can be used for future 5G mobile services.

Ofcom believes it is in the public interest for the auction to take place as soon as possible in light of the significant and strong demand for access to the spectrum, and the immediate and direct benefits to consumers of faster, higher quality mobile data services that can be offered using the spectrum.

Ofcom had planned to hold the auction in autumn 2017, but it has been delayed by litigation brought by Three and BT/EE. Following an expedited court process recognising the strong public interest in proceeding with the auction, the High Court upheld Ofcom’s decision and dismissed both claims on 20 December 2017. However, Three has now sought permission to appeal on to the Court of Appeal. The Court of Appeal is also expediting that appeal, which will be heard on 13–14 February 2018.

The litigation by Three is continuing to delay access to the spectrum and the benefits to consumers and businesses that can flow from it.

Ofcom has therefore decided to proceed to make the auction Regulations for this spectrum award process on 24 January, and follow the timetable as set out below:

• On 24 January the regulations will be published. They will come into force on 31 January.
• On the same day, guidance will be published for potential bidders on how to take part in the auction.
• Once the regulations are in force, the date for when applications are to be accepted will be confirmed.
• It is anticipated that the day for receipt of applications will be around seven days after the regulations come into force.
• It is proposed that the steps necessary to decide whether to qualify applicants to participate in the auction will be commenced immediately after application day.
• Ofcom will stop short of formally qualifying bidders until after the Court of Appeal’s decision is announced, and all parties know whether the decision to impose an overall spectrum cap at 340 MHz is upheld.

All steps would need to be taken whether or not the Court of Appeal upholds Ofcom’s decision, and the judgment of the High Court. If Ofcom has to change any of the regulations in light of the Court of Appeal’s judgment, it will do so with utmost expedition to minimise further delay.

Once the judgment of the Court is known, applicants will, in accordance with the regulations, have a period to indicate to Ofcom whether they wish to withdraw from the award process and be refunded their initial deposit prior to the “last day for withdrawal”.

Image credit: ©stock.adobe.com/au/fergregory

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