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Three Ireland wants pause on telecom spectrum auction

Mobile phone network operator Three Ireland is asking the High Court to put a stay on the communications regulator’s move to go ahead later this month with a new auction system for the awarding of spectrum bands for mobile and wireless broadband services.

Three is seeking the stay in circumstances where it awaits a judgment on its main challenge to Comreg’s December 2020 to hold a multi-brand spectrum award which will assign rights across four spectrum brands for the next 20 years.

Comreg opposes the stay and says the award process should proceed to ensure the 5G roll out goes ahead and meets EU targets to make spectrum available throughout the State.

Comreg’s 2020 decision provides for issuing new rights, in the 700 MHz, 2.1 GHz, 2.3 GHz and 2.6 GHz bands, by way of a “combinatorial clock auction” whereby participants bid on generic lots of spectrum rather than individual lots.

Three Ireland (Hutchison) Ltd and Three Ireland Services (Hutchison) Ltd, part of the CK Hutchison Holdings multinational conglomerate, claims this would put it at a competitive disadvantage. Three sought an order that the court set aside certain parts of that decision on grounds that it has made significant error or errors of fact and/or law and/or assessment.

Comreg denied the claims and a judgment on that appeal is awaited.

In the meantime Comreg said it intends to hold the auction on July 25 next with an October 2022 completion date.

Yesterday, Three asked Mr Justice Denis McDonald to order a stay on Comreg commencing the main stage of the auction process pending the outcome of the main appeal to the High Court. Vodafone and Eir are notice parties.

Brian Kennelly SC, in submissions on behalf of Three, said if a stay is not granted it was possible that the judgment on the main appeal “could land” in the middle of the auction process which would create great uncertainty in the market. Vodafone and Eir were rather unusually supporting the stay application although they are main competitors, he said.

If the auction goes ahead, there is very likely to be strategic bidding which would cause a major prejudice to Three’s ability to compete in the market and also harm consumers, he said. A system of compensation for losses Three incurs, as devised by Comreg, “will not fix that”, he said.

If the pending judgment results in the auction process having to be re-run, that will create further uncertainty, he said.

Margaret Gray SC, for Comreg, her client believes the status quo should pertain and the auction should proceed, not least to ensure the 5G rollout.

Comreg believes the issue of the stay falls or rises when one looks at whether there was serious and irreparable harm to Three. Three had not met the test for that, counsel said.

Any harm there would be would be financial and that is capable of being repaired, she said. The public interest required the auction proceed and this far outweighed the harm claimed by Three, she said.

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