On 11 July Ofcom issued its long awaited statement on the competition issues and auction regulations for the award of the 2.3 and 3.4 GHz spectrum bands (the "Auction").
The 2.3 GHz spectrum band is expected to be used immediately by UK mobile network operators ("MNOs") to support mainstream mobile devices and will provide additional 4G capacity. The 3.4 GHz spectrum band is likely to become available in 2-3 years' time and it is not currently supported by most mobile devices. It is expected to support the initial deployment of 5G mobile services.
In light of concerns that the Auction could give rise to a very asymmetric distribution of spectrum holdings between MNOs, Ofcom decided to impose two separate caps on the amount of spectrum a single MNO may hold:
- a cap of 255 MHz on the amount of mobile spectrum that is immediately useable after the Auction; and
- a cap of 340 MHz per MNO on the overall mobile spectrum held as a result of the Auction. This overall cap represents 37% of all mobile spectrum that Ofcom expects to be useable within similar time frames to the 3.4 GHz band, including 80 MHz in the 700 MHz band.
Taken together, these two caps prevent BT/EE from bidding in the Auction for spectrum in the 2.3 GHz band. They will also restrict BT/EE from being awarded more than 85 MHz in the 3.4 GHz band and prevent Vodafone from being awarded more than 160 MHz across the 2.3 GHz and 3.4 GHz bands together.
The statement anticipates that bidding for the auction will begin in late October to November 2017. However, Ofcom also recognises the potential for challenge of its decision and stated its view that any claim for judicial review should be brought promptly within six weeks of the date of this statement, with a request that the court expedites any such challenge.
Ofcom has recognised the potential for challenge of its decision and stated its view that any claim for judicial review should be brought promptly within six weeks of the date of this statement, with a request that the court expedites any such challenge. The time frame for judicial review is usually "promptly" and in any event within three months of the relevant statement.
Our full article can be found here.
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