Vodafone action against regulator

Vodafone Ireland has brought a legal action against communications regulator ComReg arising from concerns about the effect on its competitive interests of the acquisition of O2 by rival company Hutchison for merger into 3 Ireland.

Eileen Barrington, counsel for Vodafone, argued the regulator should take certain steps in relation to this merger as it meant half of the total spectrum used for radio communications in Ireland was coming under the control of Hutchison.

The acquisition means Vodafone has been placed at a significant competitive disadvantage, counsel said.

She secured leave from Mr Justice Michael Peart yesterday to bring judicial review proceedings against ComReg aimed at requiring the regulator take steps arising from the €780m merger. The matter is urgent because there are certain investment decisions to be taken by Vodafone, Ms Barrington outlined.

ComReg had expressed some concerns about the acquisition but the problem for Vodafone was the regulator had not substantially outlined what it was prepared to do, she said.

Vodafone had been in correspondence with ComReg since May, asking the regulator to consider the exercise of its statutory powers, including the power of divestment, she said.

ComReg had also asked Vodafone to provide a detailed document outlining the nature of its concerns and that was done. The most recent response from the regulator was that it was awaiting legal advice, counsel said.

Regulations provide that ComReg shall ensure radio frequencies are effectively used and that competition is not distorted by any transfer of use for radio frequencies, she said. It was Vodafone’s case, as a result of this merger, that ComReg should consider exercising its powers and “at the very least” consider the effect of the merger generally.

According to a spokesperson for Three: “Three is not surprised that Vodafone is upset about heightened competition in the mobile market. Clearly a strong No 2 mobile operator, together with two new MVNO’s must be unsettling for Vodafone after years of being unchallenged as number one player.”