O2 has filed an appeal with the Competition Appeals Tribunal (CAT) asking it to direct Ofcom to amend its licence.
The amended EU GSM Directive, which came into force last October, required EU member states to make 2G spectrum (900MHz and 1800MHz) available for 3G services by May 9.
O2 said that in March it made a formal request to Ofcom to vary its licence in line with the new Directive and allow it to operate 3G services at 900MHz. Ofcom have been unable to reach a decision because of uncertainty about government policy on spectrum both before and after the election, it said.
A spokesperson for O2 said: “We need to start re-allocating spectrum to ensure our customers can continue to enjoy a network they can rely upon. Running 3G services over 900MHz 2G spectrum will help us meet the ever growing demand from customers in major cities for mobile broadband.
“The GSM Directive gives us a right to deploy 3G services at 900MHz and so at the beginning of March we applied to Ofcom for a variation of our licence to allow 3G services to be launched at 900MHz.
“They’ve been unable to provide an answer and so we have applied to the Competition Appeals Tribunal to address Ofcom’s failure to act on our legitimate request.”