UPDATE ViaSat Prep Ofcom Court Fight Over Satellite Broadband for Aircraft

Ofcom’s decision this week to grant Inmarsat a wireless telegraphy licence for ground based stations using the 2GHz band (here), which will support a new Satellite based superfast broadband network for air travellers, has triggered ViaSat to prepare legal proceedings against the regulator.

The new European Aviation Network (EAN) that Inmarsat is building, which has already won support from various airlines, is something that should make in-flight WiFi connectivity a lot faster once it’s fully deployed.

However ViaSat has frequently accused Inmarsat of “misusing [the] spectrum” and thus gaining an “unfair competitive advantage“, which they say is allowing the company to create a “monopoly for European in-flight connectivity” (here). The issue stems from the fact that the relevant radio spectrum was initially awarded in 2009 for a different purpose than it is now being used.

Originally the radio spectrum was licensed to two companies in order to help improve rural broadband and emergency services (phone) coverage, although several years passed without much development. Since then various EU and UK regulators have agreed that the licence can be used to help build the EAN via new ground-based stations, which ViaSat and partner Eutelsat both argue is unfair as they could also offer similar services but “weren’t able to bid.”

The regulators now find themselves in a difficult position because they have granted key permissions and Inmarsat has thus committed huge sums of money to build a new network based upon those commitments, which many airlines are expecting to be delivered. Reversing that decision now would cause significant damage.

Frederik van Essen, Boss of Inmarsat Aviation, told ISPreview.co.uk:

“The news that ViaSat is planning to take legal action against Ofcom comes as no surprise.  ViaSat has made representations previously to the European Commission and failed.  They presented similar arguments to Ofcom during last year’s UK consultation process and failed.  Having been unable to win with their previous arguments, they are now resorting to legal action in yet another an attempt to delay the launch of the European Aviation Network.

We consider ViaSat’s claims to be entirely without merit and fundamentally misconceived.  Their strategy has had no impact on our preparations and we remain on course to commence commercial services with our launch customer in the first half of 2018.  Inmarsat will vigorously defend its interests and stands ready to intervene in this process in support of Ofcom or any other regulator.”

Flexibility in licence conditions is nothing new and so far Ofcom seems to be happy with what Inmarsat are doing, which means that at present the Satellite operator is not doing anything obviously “illegal.” ViaSat’s President, Rick Baldridge, said, “Are there rules or are there no rules? Can we use our Ka band licence for 5G? The telco guys would say no and rightly so.”

Apparently ViaSat’s legal challenge against Ofcom will begin “imminently” and a decision against the regulator could conceivably also have an impact on flexibility in other licences for different services.

UPDATE 10:35am

We’ve now received a full comment from ViaSat.

Rick Baldridge, ViaSat’s President and COO, told ISPreview.co.uk:

“We are extremely disappointed by Ofcom’s decision to grant Inmarsat authorization to operate its EAN. The facts are clear: Inmarsat is abusing the initial grant of the 2GHz spectrum, as set forth by the European Commission (EC) by changing the original tender granted to them with their intent to deploy a Pan-European terrestrial wireless network; and admittedly missing numerous deadlines as related to the original award.

This blatant misuse of spectrum needs to stop now. It establishes precedent for any organization to use spectrum without following the rules. As we’ve publicly stated: we believe the EAN violates the original decision of the EU legislature that the S-Band be used for mobile satellite systems—not a terrestrial wireless network (also known as an Air-to-Ground or ATG). We remain diligent in our efforts to have the EC halt Inmarsat’s ATG deployments in the S-Band; declare Inmarsat’s ATG plans as inconsistent with EU law and the original S-Band spectrum award; and retender the spectrum.

And we’re not alone. A number of regulators have shared their own frustration with the EC’s failure to act, despite requests for the EC to address this critical legal question. If the EC does not do the right thing and make clear that Inmarsat’s ATG deployment is not a permitted use of the original granted spectrum, we will be left with no other option: we will fight the decision in each country that authorizes an illegal ATG network deployment.

In recent weeks, ViaSat has taken a strong stand in fighting the EAN across Europe. We have advanced our legal actions against Belgium and the European Commission; and filed challenges with German and Italian regulators, making clear that we will take further legal action in Germany and Italy if they allow Inmarsat to implement EAN as advertised. We now fully expect to pursue legal action against Ofcom as a result of their decision this week.”

UPDATE 4:59pm

Inmarsat has kindly provided us with their full comment, which I’ve added above to replace the shortened FT one.