Arqiva Ltd & Ors v Everything Everywhere Ltd & Ors [2011] EWHC 1411 (TCC) (27 May 2011)

Arqiva Ltd & Ors v Everything Everywhere Ltd & Ors [2011] EWHC 1411 (TCC) (27 May 2011)

EE's arrangement permitting OPCS customers to roam on EE's network constitutes an arrangement for carriage of voice/data traffic for an Other Licensed Operator, which is prohibited by clause 20.14 of the FA if it creates significant and material risk of site decommissioning. Evidence establishes such risk. OPCS was an Other Licensed Operator at relevant times. The validity of OFCOM's licence transfer to EE cannot be conclusively determined without OFCOM's participation; preliminary view is transfer may be void under section 30 of Wireless Telegraphy Act 2006. Roaming arrangements as implemented breach contractual restrictions to the extent OPCS remains a licence holder.

Citation
[2011] EWHC 1411 (TCC)
Parties
Claimant: Arqiva Limited; Claimant: Arqiva Service Limited; Claimant: Arqiva No 2 Limited; Claimant: Arqiva No 3 Limited; Claimant: Arqiva Arial Sites PLC; Defendant: Everything Everywhere Limited; Defendant: Orange Personal Communications Service Limited; Defendant: Orange Holdings (UK) Limited; Defendant: Mobile Broadband Network Limited; Defendant: Hutchinson 3G (UK) Limited
Jurisdiction
England and Wales
Judgment Date
27 May 2011
Procedural Posture
Expedited Trial (technology and Construction Court) / Judgment Following Expedited Trial
Outcome
Findings of breach of contract; form of relief (injunctions/declarations) to be determined after further submissions.
Legal Topics
Spectrum Licensing, Roaming Agreements, Contract Interpretation, Regulatory Compliance, Injunctions
Telecommunications Law Contract Law Administrative Law Spectrum Licensing Roaming Agreements Contract Interpretation Regulatory Compliance Injunctions

Case Brief

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Parties

Arqiva Limited

Claimant

Arqiva Service Limited

Claimant

Arqiva No 2 Limited

Claimant

Arqiva No 3 Limited

Claimant

Arqiva Arial Sites PLC

Claimant

Everything Everywhere Limited

Defendant

Orange Personal Communications Service Limited

Defendant

Orange Holdings (UK) Limited

Defendant

Mobile Broadband Network Limited

Defendant

Hutchinson 3G (UK) Limited

Defendant

Procedural Posture

Expedited Trial (technology and Construction Court) / Judgment Following Expedited Trial

Legal Issues

  1. 1 Whether EE and OPCS's roaming arrangements breach MSSA, FA, Orange MSSA, Orange NEA, Orange SSL
  2. 2 Whether OPCS remains a spectrum licence holder under Wireless Telegraphy Act 2006
  3. 3 Whether OFCOM's administrative transfer of licences is valid under section 30 of Wireless Telegraphy Act 2006

Ratio Decidendi

EE's arrangement permitting OPCS customers to roam on EE's network constitutes an arrangement for carriage of voice/data traffic for an Other Licensed Operator, which is prohibited by clause 20.14 of the FA if it creates significant and material risk of site decommissioning. Evidence establishes such risk. OPCS was an Other Licensed Operator at relevant times. The validity of OFCOM's licence transfer to EE cannot be conclusively determined without OFCOM's participation; preliminary view is transfer may be void under section 30 of Wireless Telegraphy Act 2006. Roaming arrangements as implemented breach contractual restrictions to the extent OPCS remains a licence holder.

Court Disposition

Findings of breach of contract; form of relief (injunctions/declarations) to be determined after further submissions.