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The High Court has refused EE Limited’s claim for judicial review of a decision by Ofcom revising the level of annual licence fees payable by mobile network operators for the use of certain bands of radio spectrum.

In the first judicial review brought under Article 4(1) of the Framework Directive, EE, supported by Telefonica UK Limited, Vodafone Limited and Hutchison 3G UK Limited, argued that Ofcom had acted unlawfully by setting licence fees at the level of the full market value of the relevant spectrum without having regard to considerations prescribed by EU law, and in failing to make use of avoided cost modelling when assessing market value. Mr Justice Cranston held that Ofcom had correctly interpreted a Direction by the Secretary of State requiring it to set fees at a level reflecting full market value; that compliance with that Direction had not been contrary to EU law; and that Ofcom’s decision not to make use of avoided cost modelling had not been incorrect. 

The full judgment can be read here.

Lord Pannick QC acted for the Claimant; Pushpinder Saini QC and Jessica Boyd acted for the Defendant; Michael Fordham QC and Emily Neill acted for Vodafone; Tom de la Mare QC and Tom Richards acted for Telefonica; and Tristan Jones acted for Hutchison 3G.

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