Ofcom pushes ahead with spectrum auction plans despite ongoing legal challenge

Ofcom said it is in the public interest for the auction to take place as soon as possible. Its plans to hold the auction in the autumn of 2017 were delayed by the legal action by some mobile network operators.

In July last year the regulator confirmed plans to prohibit BT/EE from winning any of the new spectrum being made available in the 2.3 GHz band during the auction. It said an "overall cap" will also apply and restrict the amount of spectrum BT/EE will be able to buy in the auction for spectrum in the 3.4 GHz band, as well as the overall amount Vodafone will be able to acquire across the two auctions.

The cap would prevent BT/EE from bidding for spectrum in the 2.3 GHz band, used for 4G mobile, as it already holds 255 MHz of usable spectrum. It would be able to bid for up to 85 MHz of spectrum in the 3.4 GHz band. The operator lodged a judicial review against the cap but lost that legal challenge before the High Court in December.

The High Court similarly dismissed a legal challenge from Three which has called for a stricter cap on the amount of spectrum an mobile network operator can own. However, Three has lodged an appeal against that decision before the Court of Appeal.

Ofcom said that hearings in the appeal are expected to take place on 13 and 14 February. It said Three's continued opposition to its plans "is continuing to delay access to the spectrum and the benefits to consumers and businesses that can flow from it".

The regulator has outlined a timetable to take forward its preparations for the auctioning, which it said would begin with publication of the auction regulations, and associated guidance for bidding, on Wednesday 24 January.

Ofcom's plans take account of the ongoing legal proceedings but it said that it is "keen to ensure that we can move as quickly as possible to hold the auction once the judgment of the Court of Appeal has been given".

"Once the regulations are in force, we will confirm the date for when we will be accepting applications," Ofcom said. "We anticipate the day for receipt of applications will be around seven days after the regulations come into force. We propose to commence the steps necessary to decide whether to qualify applicants to participate in the auction immediately after application day. We will stop short of formally qualifying bidders until after the Court of Appeal’s decision is announced, and all parties know whether Ofcom’s decision to impose an overall spectrum cap at 340 MHz is upheld."

The regulator said that if it loses the case before the Court of Appeal it would make any necessary changes to the regulations "with utmost expedition to minimise further delay".