5G spectrum auction to go ahead after Three's legal challenge fails

Ofcom’s upcoming auction of 2.3GHz and 3.4GHz spectrum can go ahead as planned after Three failed in its bid to decrease a proposed cap on the amount of airwaves any single operator can hold in the Court of Appeal.

The sale of 40MHz worth of 2.3GHz airwaves, which can be used right away to support existing 4G services, and 150MHz of 3.4GHz of bandwidth that is earmarked for 5G in 2020 had been delayed by legal challenges by both BT-EE and Three.

Ofcom intends to limit any one operator to just 255MHz of ‘immediately usable’ spectrum (800MHz, 900MHz, 1400MHz, 1800MHz, 2100MHz and 2.6GHz) and 340MHz of all airwaves available in the UK. This is in effect a cap of 37 per cent.

Ofcom 5G auction

BT-EE already has 255MHz so would be banned from bidding for the 2.3GHz band, but is free to compete for the 3.4GHz spectrum. Vodafone has 176MHz so would be limited to 85MHz of each, while Three and O2 have no restrictions.

Three wanted this lowered to 30 percent and launched a legal challenge, an act which spurred EE, which had grudgingly accepted the limits, to also challenge the proposals. Ofcom’s cap was upheld in December and now Three’s appeal has been dismissed.

“We are disappointed by the Court decision but our decision to appeal was the right one,” a Three spokesperson told TechRadar Pro. “This has not caused any delay to the delivery of 5G services to UK consumers which are not expected to rollout until 2019/20, according to Ofcom. 

“The court process has helped provide clarity on whether there is a genuine 37 per cent cap and, thanks to the hearings, Ofcom is now much clearer that a 37 per cent cap is the level they believe is appropriate to maintain competitive balance.

“We still believe that a 37 per cent cap is too high if the policy objective is to have a competitive 4 player market and we would like to see it set at a lower level in the future.”

Ofcom had become increasingly frustrated by the continued delays and in January announced it would press ahead with the auction regardless of Three’s action, claiming it was in the “public interest”.

Indeed, there were fears that the UK’s bid to become a 5G leader would be derailed by the courts. The 2013 auction of 4G spectrum was repeatedly delayed because of legal action, meaning the country was a late adopter of the technology.

“The Court of Appeal has very firmly rejected Three’s application for permission to appeal on all grounds,” said an Ofcom spokesperson.

“We welcome this decision, and will now press ahead with releasing these important airwaves. This new capacity will allow mobile companies to offer more reliable reception, and to prepare for future 5G services.”

Steve McCaskill is TechRadar Pro's resident mobile industry expert, covering all aspects of the UK and global news, from operators to service providers and everything in between. He is a former editor of Silicon UK and journalist with over a decade's experience in the technology industry, writing about technology, in particular, telecoms, mobile and sports tech, sports, video games and media.