Viasat UK Ltd & Anor v The Office of Communications & Anor

Under Article 8(1) of Decision 626/2008/EC, a national authority must authorise complementary ground components where the operator was selected at European level and authorised to use the relevant spectrum. Breach of earlier conditions does not automatically remove that entitlement; coordinated enforcement procedures must be used. Complementary ground components need not be secondary or subservient to the satellite. The system must be assessed as an integrated whole. Separate aerials, circuitry or communications protocols do not prevent equipment forming part of a mobile earth station where the overall system includes satellite capability. Existing obligations, monitoring and enforcement powers may make an additional express condition unnecessary.

Viasat appealed against the Competition Appeal Tribunal’s dismissal of its statutory appeal against Ofcom’s decision to authorise Inmarsat to use 2GHz spectrum for an in-flight mobile communications service combining satellite and ground components. The Tribunal’s decision is reported at [2018] CAT 18.

The appeal concerned the consequences of Inmarsat’s failure to meet aspects of its original commitments, the alleged need for equal treatment and transparency safeguards, whether Ofcom had to impose an express satellite-use condition, and the meaning of mobile satellite system, complementary ground component and mobile earth station in Decision 626/2008/EC.

The appeal was dismissed unanimously. Lord Justice Green gave the substantive judgment, with Lord Leggatt and Lord Justice Lewison agreeing.

1. The appeal to the Court of Appeal was confined to points of law under section 192(6) of the Communications Act 2003. The issues were matters of law and jurisdiction, so no material merits assessment arose.
2. Article 8(1) of Decision 626/2008/EC imposed two conditions precedent to authorisation of complementary ground components: the operator had to have been selected by the Commission and authorised by a national authority to use the spectrum. Both conditions were satisfied. The Court followed the Court of Justice’s reasoning in Viasat v IBPT, Case C100/19.
3. Failure to comply with an Article 7(2) condition did not automatically withdraw the Article 7(1) authorisation. Withdrawal required the coordinated enforcement procedure under Article 3 of the Enforcement Mechanism Decision. Equal treatment and transparency principles therefore did not create an automatic bar to the later authorisation.
4. Ofcom acted rationally in relying on existing obligations, monitoring and enforcement powers rather than imposing an additional express condition requiring installation and operation of the satellite terminal. An unnecessary additional condition was not required.
5. Complementarity was functional. It meant that the ground and satellite components formed part of an integrated system and worked together to improve service availability. It did not require the satellite to be dominant or the ground components to be secondary.
6. The definitions in Decision 626/2008/EC required a systems-based assessment. The aircraft’s separate satellite-facing and ground-facing equipment could together form a mobile earth station. The ITU Regulations were relevant but not dispositive because the EU regime expressly contemplated communications with complementary ground components.

The Tribunal was right to reject all grounds of appeal.

• Court of Appeal (Civil Division): dismissed Viasat’s appeal from the Tribunal’s decision.
• Competition Appeal Tribunal: dismissed Viasat’s statutory appeal against Ofcom’s authorisation decision in [2018] CAT 18.