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The Court of Appeal has allowed EE’s appeal against the judgment of Mr Justice Cranston at first instance dismissing EE’s claim for judicial review of Ofcom’s decision in relation to the licence fees payable for the 900 MHz and 1800 MHz bands of radio spectrum. 

The case concerned the proper interpretation to be given to a legislative direction made by the Secretary of State in 2010 which required Ofcom to revise annual licence fees so that they reflect the full market value of the frequencies in those bands. The Court of Appeal has concluded that the Secretary of State’s power to make such a direction under s. 5 of the Wireless Telegraph Act 2006 does not serve to, or permit the Secretary of State to, disapply the statutory duties that would otherwise apply to Ofcom’s setting of licence fees under the Communications Act 2003 and the Wireless Telegraph Act 2006. As such, the 2010 Direction cannot be interpreted as requiring Ofcom to set licence fees at the level of full market value irrespective of the approach it would otherwise take pursuant to its statutory duties, and Ofcom’s decision setting licence fees at the level of full market value without regard to other considerations was unlawful. The Court of Appeal has granted Ofcom permission to appeal to the Supreme Court. 

Lord Pannick QC acted for the Appellant, EE

Pushpinder Saini QC and Jessica Boyd acted for the Respondent, Ofcom

Tom de la Mare QC and Tom Richards acted for Telefonica UK Ltd

Michael Fordham QC and Emily Neill acted for Vodafone 

Tristan Jones acted for Hutchison 3G, all of whom were interested parties.

Click here to read the full judgment.