Ofcom's 5G spectrum auction is to go ahead in April after mobile operator Three lost its final legal challenge to force the UK regulator to change the bidding rules.
The comms watchdog had planned to hold the auction for the 2.3 and 3.4GHz bands in autumn 2017, but it was delayed by litigation brought by Three UK and BT/EE – the former wanting a 30 per cent spectrum cap, the latter wanting the cap removed entirely for the 3.4GHz 5G band.
In December the High Court upheld Ofcom's decision and dismissed both claims, which Three appealed against. Yesterday evening, the Court of Appeal rejected its challenge.
An Ofcom spokesman said: "The Court of Appeal has very firmly rejected Three's application for permission to appeal on all grounds.
"We welcome this decision, and will now press ahead with releasing these important airwaves. This new capacity will allow mobile companies to offer more reliable reception, and to prepare for future 5G services."
A Three spokesman said the firm was "disappointed" by the decision, and insisted the judicial review had not caused any delay to the delivery of 5G services, which are not expected to be rolled out until 2019/20.
He said the appeal was about competition in the UK mobile market, with spectrum distribution being the single biggest factor in maintaining a competitive market.
BT/EE holds 42 per cent of immediately usable UK mobile spectrum, Three owns 15 per cent, Vodafone 29 per cent, and O2 14 per cent.
He added: "The court process has helped provide clarity on whether there is a genuine 37 per cent cap and, thanks to the hearings, Ofcom is now much clearer that a 37 per cent cap is the level they believe is appropriate to maintain competitive balance.
"However, that cap will not be in place until Q2 2020 but it is vital that Ofcom, as a minimum starting point, sticks to this number when additional spectrum is auctioned off.
"We still believe that a 37 per cent cap is too high if the policy objective is to have a competitive four player market and we would like to see it set at a lower level in the future." ®