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The Court of Appeal has refused permission to Hutchison 3G to appeal against the judgment of Green J, which dismissed its claim for judicial review of Ofcom’s decision on the auction of 2.3 GHz and 3.4 GHz spectrum.

The auction will make significantly more spectrum available to mobile network operators and may enable them to meet demand for mobile data or launch 5G services.

Hutchison 3G argued that Ofcom had failed to achieve its own regulatory objective of limiting the spectrum shares of any mobile network operator to 37% of usable spectrum, because the effect of its decision was to  permit BT/EE to hold a persistently greater share until further spectrum bands became available. Ofcom had acted unlawfully in imposing too high a cap and should have imposed a lower one. Green J’s judgment was wrong in that he had found that Ofcom’s decision to permit BT/EE a flexible period of time to bring itself within the 37% cap was a deliberate and considered policy decision, which did not present an unacceptable risk to competition and was proportionate. 

The Court of Appeal stated that it was of the view that permission to appeal should be refused on all grounds, and that it would give reasons for its decision in writing as soon as practicable. 

Click here for the Administrative Court judgment. 

Dinah Rose QC, Jessica Boyd, Hanif Mussa and Tom Coates acted for Ofcom.

Daniel Cashman acted for Hutchison 3G.

Michael Fordham QC and Tristan Jones acted for Vodafone.

Emily Neill acted for Telefonica.

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