Vodafone sues Ofcom to reclaim 'overpaid' mobe spectrum fees

EE set it up, now Voda's shooting for goal

Vodafone has taken UK comms watchdog Ofcom to the High Court in England to reclaim overpaid spectrum access charges imposed by the telecoms regulator in 2015.

The early stages of Voda’s claim against the regulator are, The Register understands, based on the victory scored by BT-EE late last year.

Back in 2015 Ofcom decided to raise its spectrum use fees, which had remained unchanged since 2011. Unhappy mobile networks promptly sued the regulator in the High Court, claiming the fees were too high.

After an initial loss, the Court of Appeal reversed the first verdict by ruling that both Ofcom and the High Court had misunderstood a Department for Digital, Culture, Media and Sport, directive on pricing, enabling EE to save a whopping £50m a year on fees for using its 900MHz and 1800MHz spectrum.

“The court also found that Ofcom had misinterpreted a 2010 instruction from the UK government ordering it to review the levy and reflect the fact that the market value of spectrum had risen due to rising smartphone usage,” reported the Financial Times when the Court of Appeal handed down its judgment, reckoning that around £200m-£300m was overpaid by all the mobile network operators.

Yesterday a preliminary hearing took place in the High Court, with the full arguments between Vodafone and Ofcom due to be heard in spring 2019.

In November last year, EE/BT successfully legally challenged Ofcom’s increase to spectrum annual licence fees in 2015. As a consequence, the increase was nixed and the fees reverted back to what they were in 2011.

If Vodafone is successful in its bid for repayment of the fees, this would open the gates for other operators to reclaim their overpayments, and consumer pressure for price freezes would naturally build.

Mobile operators and Ofcom have a fractious relationship at best, judging by the frequency with which the two end up at legal loggerheads. Just a month after its spectrum win, EE lost a legal challenge over Ofcom’s proposed 5G spectrum auction, with an appeal being kicked out a few months later. ®