700 Mhz Spectrum Usage

(a) 700 MHz Duplex Blocks shall be 14 February 2022 or such other

date as may be specified by the Commission;

1) In the interests of transparency and consistent with the principle of open justice, any member of the public may seek access to the written submissions provided to the Court by parties in proceedings in accordance with the following Practice Direction.

2) This Practice Direction applies exclusively to written submissions in civil proceedings provided to the Court at a hearing by any party and in respect of which an Order has been made by a Judge of the High Court giving Judgment in those proceedings that same be made available to members of the public on the terms set out in this Practice Direction.

3) No Order as referred to at paragraph 2 above shall be made in cases heard in camera, or cases where there are reporting restrictions in place pursuant to statute.....

10) A copy of Written Submissions for Public Release in any given case may be sought by a member of the public by sending a request to the Principal Registrar at the Central Office. That request should identify the name of the proceedings, the record number of the proceedings, and, if available, the date of Judgment and the name of the Trial Judge.

ComReg proposes to implement the same licensing framework as set out in Document 21/96 and S.I. 501 of 2021 for the period 2 April 2022 to 1 October 2022, with the exception that the 2.6 GHz band would not be included...

....ComReg expects that this will be the final temporary ECS licensing framework on the basis of the Temporary Situation.

IN COURT 2 (Capacity 44) MR JUSTICE MCDONALD AT 12.00 O'CLOCK

FOR HEARING (REMOTE)

2021/9 MCA | THREE IRELAND (HUTCHISON) LTD & ANOR -V- COM REG(App's stay application)

2021/9 MCA | THREE IRELAND (HUTCHISON) LTD & ANOR -V- COM REG |(FM)(Dirs)

IN COURT 2 (Capacity 44) MR JUSTICE MCDONALD AT 11.00 O'CLOCK

FOR HEARING

2021/9 MCA | THREE IRELAND (HUTCHISON) LTD & ANOR -V- COM REG(App's stay application)

2021/9 MCA | THREE IRELAND (HUTCHISON) LTD & ANOR -V- COM REG |(FM)(Dirs)

in relation to the duration of any new temporary framework, .... ComReg would remind interested parties that it is progressing the MBSA2 award process, and it is possible that some spectrum rights could be assigned via the MBSA2 within the duration of the further temporary licensing framework proposed in this document.

Ireland, the combinatorial clock is ticking. Mobile operator Three Ireland is petitioning the Irish High Court to issue an injunction that would prevent the country’s telecoms regulator, Comreg, from pursuing a new system for auctioning wireless spectrum, which was due to be introduced later this month.

Three’s argument is that the new auction process should be stayed pending a final ruling on Three’s earlier legal challenge to Comreg’s decision, made in December 2020, to award spectrum across four bands for the next 20 years. Comreg contends that there should be no delay to this month’s auction because it would severely impact the rollout of 5G technology across Ireland, to the disadvantage of both enterprises and consumers, and cause the Irish state to miss long-set and agreed EU targets for the provision of 5G.

Three’s main bone of contention is that Comreg’s 2020 decision would see new spectrum rights allocated in the 700 MHz, 2.1 GHz, 2.3 GHz and 2.6 GHz bands, via a mechanism known as a combinatorial clock auction (CCA) whereby interest parties bid for generic lots of spectrum rather than individual lots.

The CCA is an important recent innovation in auction design and has been adopted for many spectrum auctions worldwide. Three Ireland says this method puts it at a competitive disadvantage. Brian Kennelly, senior counsel for Three, submitted that should a stay not be granted, the judgement on the main appeal “could land” in the middle of the auction process itself, which would result in “great uncertainty in the market”. He added that both Vodafone and Eir (formerly Eircom) support the application for the stay despite being Three’s major competitors.

Brian Kennelly added that if the auction goes ahead as planned on 25 July, “strategic bidding” by others would prejudice Three’s ability to compete in the Irish market and thus harm consumers by denying them a better competitive environment. He branded as “insufficient” Comreg’s system to compensate Three for any losses found to have been incurred during the process.

In response, Margaret Gray, senior counsel for Comreg, argued that the status quo should remain and the auction proceed to meet the EU timetable for the introduction of 5G. She added that, for Comreg, “the issue stands or falls” on whether there would be serious irreparable harm to Three, and there wouldn’t be any given that the only possible harm, the loss of money, would be compensated for in full. For its part, Comreg reiterated that the auction will take place on 25 July, and that the entire bandwidth allocation and licensing process will be over by the end of October this year.

In general, the issues that remain on the auction mechanism seem to be with the use of time- slicing; the expiry of Lots in the 2.1GHz band; and the asymmetric cap which produces a discriminatory effect particularly in the 700MHz band. There is then also the overriding issue with the choice of auction mechanism. Overall, we note that there remains opposition to the proposed use of Time-Slicing from all respondents. We note that Eir (like Three) does not believe that the Combinatorial Clock Auction (CCA) mechanism proposed is appropriate for this award but instead favours an award based on a Simple Clock Auction (SCA). Three agrees with Eir on this point and has previously submitted a proposal for an award based on a SCA. Vodafone it seems only favours the use of a CCA if the “complex set of lots emerging from the Time Slice structure“ remains. We also note the view from Imagine that CCA disadvantages smaller bidders but they are reluctant to change to a different format if that would add complexity and disadvantage smaller bidders. It would seem that the format which most suits respondents is one where Time Slices are eliminated and a Hybrid SMRA is used, or alternatively if Time Slices are retained then a SCA similar to that proposed by Three is used.

We note that neither the respondents nor ComReg have put forward any reasoned/considered factual argument for limiting Three’s activity in the auction to less than the other MNOs, while both Vodafone and Eir objected to being limited to bidding on 2 lots of 700MHz spectrum as is currently the case for Three under ComReg’s proposed rules. No analysis based on concrete evidence has emerged from ComReg or the other competitors to show why it is appropriate to limit Three in this way but not the other two mobile network operators. It has been portrayed that we are somehow trying to get some advantage in the auction, which is clearly not the case – we are only seeking a level playing field. We also reiterate that Three has not objected to ComReg’s proposed spectrum caps on their own, it is the combination of the caps and the CCA auction mechanism which is our main objection.

Some critics have suggested Comreg's plan to withdraw the temporary spectrum may be a tactical move to force mobile operators into an auction of new mobile radio spectrum.

The auction has been delayed after Three Ireland last year initiated court action against the regulator, claiming its decision to impose caps on how much spectrum individual operators could have left it at a disadvantage.

IN COURT 13 MR JUSTICE MCDONALD AT 14.30 O'CLOCK

2021 9 MCA THREE IRELAND -V- COMREG

In opposing the Stay Application, ComReg, with the assistance of its external economic advisor Dr Maldoom(6) emphasised the importance of proceeding with the Auction and awarding long term licences. Dr Maldoom and a report prepared by an independent witness, Professor Peter Clinch, put the overall cost to the economy of a delay in the award of these long-term licences in the order of magnitude of €1billion per annum. Therefore, even a 3-month delay could cost the Irish economy in the region of €250m.

(6) Doctor Dan Maldoom is a founding Partner of DotEcon Limited and expert economic advisor to ComReg.