Decision due on Three’s request for stay on Comreg auction move

The High Court will give a decision on Thursday on an application by Three Ireland for 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 had sought a stay in circumstances where it awaits a judgment on its main challenge to Comreg’s December 2020 decision to hold a multiband spectrum award which will assign rights across four spectrum bands for the next 20 years.

The judge said any stay he granted was likely to be in place for just a few months until the judgment in the main appeal was delivered. Comreg would be entitled to apply to the court if it was considered there was any harm to the process of awarding the new spectrums, he said.

Among the reasons in favour of granting the stay, the judge said, was that Three would suffer serious and irreversible harm if it is successful in its main appeal and a stay had not been granted.

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A 2020 Comreg decision provided 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. The allocation of these blocks of the spectrum is critical to the economic development of 4G in the country and in the roll-out of 5G, according to Comreg.

Comreg opposed Three’s stay application and said the award process should proceed to ensure the 5G roll-out goes ahead and meets European Union targets to make spectrum available throughout the State which will improve performance and coverage, particularly in rural areas.

Three Ireland (Hutchison) Ltd and Three Ireland Services (Hutchison) Ltd, part of CK Hutchison Holdings, claimed this process 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 a significant error or errors of fact and/or law and/or assessment.

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

In the meantime, Comreg said it intended to hold the auction on July 25th with an October 2022 completion date.

Three argued that if a stay was 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, who were notice parties in the case, supported the stay application although they had opposed the main appeal.