Ofcom loses Court of Appeal case and repays operators

Ofcom has lost its appeal against last year’s ruling by the UK High Court of Justice, which ordered the regulator to repay £218m to mobile operators.

The repayment order was part of restitution for their handling of a licence fee hike to the 900MHz and 1800MHz spectrum bands, starting a long-running legal battle since 2010. 

Three senior UK judges ruled that the companies had been entitled to claw back several hundreds of millions in overpaid licence fees.

EE can reclaim the largest amount of £82.4m, with Vodafone and O2 due to receive £54m each and Three UK receiving £26m.

The case dates from 2015, over licence fees paid for the 900 MHz and 1800 MHz LTE bands. EE first filed, after Ofcom came out with new regulations which lifted the annual fees payable by telecom companies for the use of mobile spectrum. The other companies joined the suit last year. 

Ofcom argued that the MNOs could only reclaim the difference between what (they) paid under the quashed 2015 Regulations and the amounts that Ofcom would have charged the MNOs, had it acted lawfully by way of executive action, instead of implementing the ultra vires 2015 Regulations. The Court of Appeal dismissed the argument. 

Sir Geoffrey Vos, one of England and Wales’ most senior judges, said in the judgment:

“The issue before the court in this appeal is beguilingly simple… what part of the [annual licence fees] can the MNOs recover as a matter of law?”

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