Court of Appeal Viasat judgment features all-Monckton cast

11 May 2020

Viasat UK Ltd & Viasat Inc v The Office of Communications & Inmarsat Ventures Limited [2020] EWCA Civ 624, judgment 11th May 2020

The Court of Appeal today dismissed an appeal by Viasat against the Competition Appeal Tribunal’s ruling upholding Ofcom’s decision to grant an authorisation for the use of 2GHz spectrum to Inmarsat. Monckton counsel acted for each of Viasat, Ofcom and Inmarsat.

US satellite operator Viasat had challenged Ofcom’s decision to authorise a service by Inmarsat for provision of broadband-like coverage to passengers in aircraft, called the “European Aviation Network” (“EAN”). The service consists of a satellite element and ground-stations known as a “complementary ground components” (“CGC”). The Ofcom decision had followed on from the European Commission’s decision to select Inmarsat for use of the 2GHz spectrum.

The CAT had found that the service was a “mobile satellite system” within the definition in Decision 626/2008 and Ofcom had thus lawfully exercised its power to authorise the use of the 2 GHz spectrum by ground stations.

Viasat argued that (a) Ofcom had failed to observe the principles of equal treatment and transparency; (b) Inmarsat’s non-compliance with the initial Commission conditions disqualified it; (c) Ofcom ought to have imposed a specific condition requiring a satellite terminal on each plane; (d) the alleged CGCs were not “complementary” and thus not ground component as defined; and (e) Inmarsat had failed to ensure the requisite radio-communication path from CGC to satellite.

The judgment of Green LJ, with whom Leggatt LJ and Lewison LJ agreed, rejected all of these grounds, finding that (a) there is no inexorable connection between breach of any conditions by Inmarsat and authorisation, as the conditions precedent to the grant of authorisation had been met and – therefore – there had also not been a breach of the principles of transparency and equal treatment; (b) Ofcom’s decision not to place an additional condition on Inmarsat, and instead to consider enforcement action if necessary, was rational; (c) there was no basis to suggest that CGCs must be subservient (as opposed to dominant) in order to be “complementary”; and (d) looking at the system as a whole, the service had the required capability to be defined as a mobile satellite system.

A copy of the judgment is here.

Viasat was represented by Philip Moser QC, Fiona Banks and Khatija Hafesji. Ofcom was represented by Josh Holmes QC and Julianne Kerr Morrison. Inmarsat was represented by Tim Ward QC.