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Court sides with Ofcom on 5G spectrum dispute between EE and Three

The High Court has sided with communications regulator Ofcom over its plans to auction 4G and 5G-ready radio spectrum across 2.3GHz and 3.4GHz bands.

Ofcom’s plans hit a hiatus when Three UK called on the regulator to introduce a 30 per cent cap on the capacity of spectrum that any one company can buy so that BT-owned EE wouldn’t end up dominating the 5G market.

EE is is the UK’s biggest mobile operator by far, owning 42 per cent of the available mobile spectrum in the UK, due to the successive mergers of T-Mobile and Orange, followed by the acquisition of the resulting company, EE, by BT, which also owned a chunk of spectrum. 

Meanwhile, Vodafone has 29 per cent, O2 14 per cent and Three UK 15 per cent.

Companies with the most amount of spectrum are better able to offer more and better services, so as the development of 5G advances, networks are scrambling to get their share of the spectrum. 

To make the bidding process fair, Ofcom looked at the idea of introducing a cap of 255MHz, which would effectively stop EE from bidding on the 2.3GHz band.

Going even further, the regulator put forward a cap of 340MHz, ensuring that companies can’t abuse their position in the spectrum market. This is around 37 per cent of spectrum that should become usable in 2020.

Three wasn’t happy with the decision, however. But Ofcom has insisted that EE should have the right to bid on the 3.4GHz band because it is necessary for helping networks launch “very fast” 5G services.

At the start of this month, Three launched a legal case to implement a 30 per cent cap. If it had been successful, it could have thrown EE out of the bidding process.

Ofcom, EE and Three UK ended up going to the High Court of Justice, although the judge sided with the regulator and “rejected all the challenges to Ofcom’s Decision”. 

Passing judgement, Mr Justice Green said: “In the light of my review of the evidence I am clear that the approach taken by Ofcom was comprehensive, coherent and logical.

Ofcom welcomed the judgement: “Our priority has always been to release these airwaves as soon as possible so customers can get more reliable mobile phone reception.”

Three UK had been able to start-up in the UK as, during a previous round of spectrum auctions – for 3G at the turn of the century – the regulator had reserved some of the spectrum for new entrants in order to encourage a competitive shake-up in the market. 

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