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The High Court in London has rejected an application by mobile operator EE (BT) for interim injunctive relief against satellite provider Avanti Broadband, which had “threatened to withdraw” its backhaul services – used to help supply data capacity to some of the remotest rural UK mast sites – unless the mobile operator agreed to pay a “substantially increased rate“.
The vast majority of EE’s mobile masts and cell sites are typically connected by fixed fibre optic or Microwave wireless links, which supply the necessary high speed data capacity for their services. But around 200 of these, from a total of around 20,000 mast sites, are so remote that this connectivity is currently only supplied via a satellite link supplied by Avanti and its fleet of HYLAS satellites.
Put another way, if the satellite link is not provided, then there will be no EE mobile services in the relevant area. There are a further 400 sites where the primary link is fixed fibre/cable or microwave, but if that primary link fails, a satellite link is still required to act as the backup. Some of these sites were also provided as part of the Government’s new 4G based Emergency Services Network (ESN).
Suffice to say that the importance of these sites is well understood and Avanti has been helping to supply them since 2016. However, according to court documents, the two sides have been locked in a dispute “since early this year” after Avanti “threatened to withdraw its services on a phased basis unless EE agrees to pay for those services at a substantially increased rate which EE contends is exorbitant and unreasonable“.
The related contract is understood to have contained agreed pricing for the services (i.e. fixed capacity and operational charges) up to December 2023, but nothing beyond that date. Avanti’s position was that its obligations ceased when the pricing expired, while BT / EE disagreed.
Extract from the Judgement
The present position is that Avanti has been prepared to continue to provide its services pending the making and outcome of this application. Further, it has made an open offer to EE to continue providing them for a further 3 months but no longer and at the higher rate which it seeks. It contends that it could in any event not supply the services beyond 3 months because this would risk it losing a very lucrative contract for the supply of satellite services to a new customer.
For its part, EE would be prepared to pay Avanti a pro tem fee of £300,000 per month but it would need Avanti to maintain the services for longer than 3 months and ideally for 6-9 months. This is because while EE recognises that it cannot continue to take services from Avanti on a long-term basis at the rate required by Avanti and has indeed started to engage with a different satellite supplier to take over from Avanti, this process of “migration” is a protracted one if it is to be done properly.
Since the parties have been unable to agree a way forward after which they would effectively part company, EE has brought this application for an injunction, effectively to maintain Avanti services until the migration is complete or trial, whichever comes first.
As to the underlying merits of EE’s claim, Avanti disputes that it is presently under any continuing contractual obligation to supply the services. Strictly speaking, it says, it would be entitled to walk away now. In fact, and as noted above, it has never suggested that but instead and in order to facilitate an orderly migration, has intimated that the withdrawal of services would be on a phased basis.
In terms of replacing Avanti’s GEO satellite network, BT / EE are already known to have been playing with Low Earth Orbit (LEO) based solutions from both OneWeb (Eutelsat) and Starlink (SpaceX) – here, which should also be able to deliver better broadband speeds and latency performance. But off-hand we don’t know how the commercials of these alternative platforms differ from that of Avanti’s arrangement.
In any case, the Judge, Mr Justice Waksman, ultimately “dismissed” BT’s application for injunctive relief against Avanti. “I consider that the interpretation of the GSA/SOW contended for by EE is plainly wrong and does not give rise to a serious issue to be tried,” said the judge while referencing BT and Avanti’s supply agreement (GSA) and related Statement of Work (SOW) – the latter sets out in detail the services to be supplied by Avanti.
A Spokesperson for Avanti Communications told ISPreview:
“We welcome the court’s decision and remain open to constructive dialogue with EE.”
The situation leaves BT / EE in a tricky position but, given the lack of an immediately available alternative (the judgement suggests this won’t be ready until later in 2025 at the earliest), they’ll almost certainly have to find a way of continuing to work with Avanti until such time as it becomes viable to migrate to a new solution. Obviously, that will come at a bigger cost. BT declined to comment on the ruling when we asked.