Lighthouse Networks Ltd v The Minister for Communication, Climate Action and Environment
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bolger |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] IEHC 420 |
| Court | High Court |
| Docket Number | Record Number: 2020/133 JR |
[2023] IEHC 420
Record Number: 2020/133 JR
THE HIGH COURT
Counsel for the applicant: Noel Travers SC, Bernadette Quigley SC
Counsel for the respondent: Conleth Bradley SC, Gerard Meehan SC
JUDGMENT of Ms. Justice Bolger delivered on the 14 th day of July, 2023
. The applicant seeks an order of certiorari quashing the decision of the Minister of 19 November 2019 that the broadband network at the applicant's Kilchreest site in County Galway does not meet the essential characteristics of a Next Generation Access (“NGA”) network for the purposes of the National Broadband Plan (“the Plan”) The applicant also seeks related declaratory reliefs. For the reasons set out below, I am refusing this application.
. The grounds upon which said relief is sought include inter alia: (1) that the respondent did not comply with the agreed assessment procedures; (2) the decision was taken in breach of the applicant's right to fair procedures; (3) the decision infringes the applicant's legitimate expectation and; (4) the decision is vitiated by an underlying bias against the applicant's Fixed Wireless Assessment (“FWA”) technology. The applicant had initially claimed relief arising from what it had asserted was a breach of its property rights but chose not to pursue that at the hearing. The respondent disputes the factual and legal basis of the applicant's case and asserts that the applicant's challenge is an unlawful collateral challenge to a subsequent, related decision.
. The applicant provides broadband internet services across parts of counties Galway, Offaly, Clare and Roscommon via a network of fixed transmission points using fixed wireless access (“FWA”) technology. The Minster intends to ensure the provision of high speed broadband to all premises in the country by implementing a State aid scheme in those parts of the country where private companies do not invest or have no plans to invest in providing commercial broadband. The Plan requires the Minister to map those areas of the country (the “Intervention Area”) where it is not commercially viable for private operators to provide high speed NGA broadband services. The European Commission's State Aid Broadband Guidelines (“SAG”) require the State to carry out this mapping exercise in a way that does not distort competition or freeze out private investment.
. The Plan was launched in 2012. Extensive consultation took place between then and 2015 when “Mapping Future High Speed Broadband Networks October 2015: Criteria for assessment of investment plans” (the “assessment criteria”) were finalised by PwC and published by the Minister. In June 2014, a formal public consultation seeking industry views was published. A further formal consultation was published in November 2014 setting out an initial view of an NBP map and an updated draft of the mapping assessment criteria, again seeking the views of industry. A further consultation was published in March 2015, seeking submissions from commercial operators. A further consultation was published in July 2015 outlining the proposed mapping assessment criteria and the process that would be conducted to determine the Intervention Area, including the technical parameters to be considered. Those five consultations run by the Minister gave commercial operators, such as the applicant, the opportunity to raise any concerns they had about the map or the assessment criteria.
. The Minister consulted ComReg at each stage of the mapping process. The application for State Aid was formally supported by ComReg via an opinion letter issued in October 2019. The State's mapping of the Intervention Area was approved by the European Commission on 15 November 2019.
. The applicant responded individually to one of those public consultations in 2013/14 and collectively as part of a group of operators to the consultations of 2013/14, July 2015, October 2015 and July 2019. The applicant did not question or challenge the assessment criteria when they were published in October 2015. The applicant claims that on a visit to their offices on 21 March 2018, the applicant was informed by the department's officials that FWA technology using license exempt spectrum (i.e. the technology used by the applicant) were not expressly excluded from qualifying as NGA, but that it would be extremely difficult to convince the department that NGA services could reliably be provided by such technology. The applicant claimed they were informed that they would have the benefit of a technical meeting with the Minister's experts to demonstrate the technical operation of their network and verify their test results.
. The department subsequently confirmed to the applicant in writing on 25 May 2018 that non-LTE Advanced FWA technology using license exempt spectrum was not, and never had been, automatically precluded from qualifying as NGA. The applicant wrote to the Minister on 27 April 2018 seeking confirmation that “ non-LTE Advanced wireless technology using unlicensed spectrum” would not be automatically excluded. The department replied on 14 May 2018 referring to the assessment criteria, and provided confirmation that “ FWA operators using unlicensed spectrum” were not automatically excluded from being found to be NGA compliant. The applicant wrote again seeking further clarity. On 25 May 2018, the respondent replied stating that non-LTE Advanced FWA technology using unlicensed spectrum had never been automatically precluded. The applicant claims in the within proceedings this was inaccurate as the Minister had previously made it clear that such technology could not be considered NGA for the purposes of the Plan. Mr. Neary, on behalf of the Minister, in his first affidavit, claims those exclusions had existed but that the rules changed with the publication of the assessment criteria in 2015.
. The applicant submitted an application to the Minister in August 2018 pursuant to the assessment criteria to have its technology recognised as NGA for the purposes of the Plan. The applicant sought to be excluded from the intervention area and protected from having to compete with State aided broadband services. The applicant's application related to a single site at Kilchreest near Loughrea, Co. Galway so as to ensure, as a threshold matter, that the Minister would accept the applicant's technology as NGA compliant. The applicant used this site as it was the least suitable and if it was confirmed as NGA compliant, that the applicant would encounter no difficulty in having all its 50 other sites similarly confirmed. That approach was not provided for by the assessment criteria and was not done by agreement with the department or advised to them prior to the applicant's application. Nevertheless, the department did agree to accept what they referred to as “an initial submission”. It was always clear that even if the applicant's application in respect of the Kilchreest site had been successful, they would have had to make a further application for recognition of the substantial remainder of its network.
. The applicant had 271 subscribers connected to the Kilchreest at the time of its application, 146 of which tested by the applicant in order to satisfy the Minister that its network complied with the assessment criteria. The applicant claimed that their tests demonstrated the network's actual capacity and the upload and download speeds available to the subscribers accessing the network, at that time. They claimed this satisfied the assessment criteria (the detail of which is discussed further below). Those views were strongly supported by their expert witness whose report was exhibited in an affidavit to the court.
. The applicant's application was assessed by the Minister's technical advisers, Analysys Mason (“AM”) on the Minister's behalf. AM made a number of requests between September 2018 and May 2019 for clarification and further information to which the applicant provided written responses. The tone of the correspondence from the applicant, AM and the department, confirm their respective strong views that the information and clarifications furnished by the applicant was insufficient and that the analysis of the applicant's application was inadequate and flawed. AM prepared a preliminary report of 22 July 2019 which assessed the application and made preliminary findings on the information that the applicant had furnished. The applicant responded by further submission dated 16 September 2019 to AM's preliminary report and provided some more clarification but also made it clear that they considered that AM had deviated from the assessment criteria and had attempted to impose new requirements not contained therein. AM completed its final report on 17 November 2019. By letter dated 19 November 2019 the Minister refused the application in reliance on AM's findings and recommendations.
. AM was engaged by the Minister to advise on assessing the applicant's submission against the technical assessment criteria set out in the assessment criteria. AM sought additional information and clarification from the applicant on 17 September 2018, 5 November 2018, 13 December 2018 and 14 April 2019. The applicant responded on 28 September 2018, 16 November 2018, 8 March 2019, 15 May 2019 and 16 September 2019.
. On 22 July 2019 AM issued a report for the department entitled ‘Technical Assessment of Lighthouse's SIR Response’ in which AM concluded that the applicant's solution did not meet the technical criteria set out in the assessment criteria because its design could not provide a 30Mbps download speed or a 6Mbps upload speed to the...
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