Government may not change National Frequency Plan for 3.5GHz-5G from court – IT Pro – News

The Dutch government is not allowed by the preliminary relief judge to change the National Frequency Plan to make room for 5G within the 3.5 GHz frequency band. This is due to satellite company Inmarsat, which now uses that frequency band for maritime emergency traffic.

The judgment of the preliminary relief judge turns around the amended National Frequency Plan 2014. Under this change, the protection that Inmarsat still enjoys on the 3.5 GHz band will expire. Inmarsat now uses part of that frequency band for emergency communication services and would have to move abroad due to the changed Frequency Plan. To prevent this the British company went to court.

The judge now rules that the government should not have changed this Frequency Plan. According to the judge, Inmarsat has “legally used the 3.5 GHz band for emergency, urgent and safety communications for about thirty years.” The company is committed to providing these communications with 99.9 percent reliability under a Public Services Agreement with the International Mobile Satellite Organization. The court considers it proven for the time being that the amended Frequency Plan ensures that emergency communication can no longer be provided with the required reliability. The Ministry has provided no evidence to the contrary on this point.

The ministry does claim that Inmarsat would have had enough time to move the ground station, that it is not obliged to provide Inmarsat’s services and that the company has never been independently protected under the Frequency Plan. With this last point, the ministry means that Inmarsat’s frequency use was protected because the frequency use of Defense was protected. Defense now has satellites for intelligence traffic just outside the Frisian village of Burum next to Inmarsat. This 3.5GHz traffic was protected; Inmarsat piggybacked on this protection.

The judge does not think that this means that the protection of Inmarsat can be lifted ‘just plain’. According to the judge, this puts emergency communication at risk. The judge said that the ministry could be expected to map out how emergency communication would be safeguarded before taking the decision. In addition, when designating the 3.5 GHz band, the ministry should have taken into account existing use, as established in EU decisions.

According to the judge, it is also irrelevant whether Inmarsat could have taken measures earlier. “Even if Inmarsat could be blamed, that does not mean that the emergency communications it provides can be endangered.” This culpability could play a role in the context of compensation or damages.

The judge in preliminary relief proceedings therefore finds that the decision to change the National Frequency Plan is “undeniably carelessly prepared”. As far as the judge is concerned, the ministry must therefore consult ‘soon’ with Inmarsat ‘and other parties’ to find a solution that guarantees emergency communication. “If no solution is found, the preliminary relief judge considers it likely that the court will annul the contested decision in the main action.” That main thing will be treated before the end of the year jaarUntil then, the change to the Frequency Plan has been suspended. According to the Ministry’s original planning, the change to that Frequency Plan should take effect on September 1, 2022.

Tweakers wrote a background article earlier about the problems between Inmarsat and the Ministry. In theory, Inmarsat and 5G at 3.5GHz could coexist. In practice, however, this would probably mean that one of the three current 5G providers will choose not to use the 3.5GHz band, as this provider would then have to share the band with Inmarsat. The technical effort required to make this possible would make it more expensive for this provider to offer on the 3.5GHz-5G. This would probably make it economically unattractive to offer 5G on this band. The 3.5GHz band is seen as an important band for 5G, because it should allow faster connections with more capacity.

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