Arqiva Ltd & Ors v Everything Everywhere Ltd & Ors

Arqiva Ltd & Ors v Everything Everywhere Ltd & Ors

Ofcom did not have power under Schedule 1 to the Wireless Telegraphy Act 2006 to vary the 2G and 3G licences so as to substitute EE as licence holder; the purported transfer constituted spectrum trading under section 30, and was void as not made under regulations or provisions falling within section 30(5). The original licences in OPCS's name remain valid.

Parties
Claimant: Arqiva Limited; Claimant: Arqiva Services Limited; Claimant: Arqiva No. 2 Limited; Claimant: Arqiva No. 3 Limited; Claimant: Arqiva Aerial Sites Plc; Defendant: Everything Everywhere Limited (formerly T-Mobile (UK) Limited); Defendant: Orange Personal Communications Services Limited; Defendant: Orange Holdings (UK) Limited; Defendant: Mobile Broadband Network Limited; Defendant: Hutchison 3G (UK) Limited; Interested Party: Ofcom
Jurisdiction
England and Wales
Judgment Date
26 July 2011
Procedural Posture
Commercial / Post Liability Judgment, Pre Relief Hearing
Outcome
Transfer of spectrum licences from OPCS to EE declared void; original licences in OPCS's name remain valid; breaches found under MSSA and Framework Agreement; relief to be determined at subsequent hearing.
Legal Topics
Spectrum Licensing, Licence Transfer, European Directives, Contract Interpretation, Competition Law
Telecommunications Commercial Law Regulatory Law Spectrum Licensing Licence Transfer European Directives Contract Interpretation Competition Law

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Parties

Arqiva Limited

Claimant

Arqiva Services Limited

Claimant

Arqiva No. 2 Limited

Claimant

Arqiva No. 3 Limited

Claimant

Arqiva Aerial Sites Plc

Claimant

Everything Everywhere Limited (formerly T-Mobile (UK) Limited)

Defendant

Orange Personal Communications Services Limited

Defendant

Orange Holdings (UK) Limited

Defendant

Mobile Broadband Network Limited

Defendant

Hutchison 3G (UK) Limited

Defendant

Ofcom

Interested Party

Procedural Posture

Commercial / Post Liability Judgment, Pre Relief Hearing

Legal Issues

  1. 1 Whether Ofcom had power to re-issue spectrum licences from OPCS to EE under Wireless Telegraphy Act 2006
  2. 2 Whether intra-group licence transfers are exempt from section 30 requirements
  3. 3 Whether the transfer constituted spectrum trading under section 30

Ratio Decidendi

Ofcom did not have power under Schedule 1 to the Wireless Telegraphy Act 2006 to vary the 2G and 3G licences so as to substitute EE as licence holder; the purported transfer constituted spectrum trading under section 30, and was void as not made under regulations or provisions falling within section 30(5). The original licences in OPCS's name remain valid.

Court Disposition

Transfer of spectrum licences from OPCS to EE declared void; original licences in OPCS's name remain valid; breaches found under MSSA and Framework Agreement; relief to be determined at subsequent hearing.

Orders

  • Re-issue of 2G and 3G licences in EE's name declared void
  • Original OPCS licences remain valid