BY TIOL News Service

NEW DELHI, DEC 06, 2015: THE issue is: Whether an informant can allege a contract for being anti-competitive when such complainant itself is a party to the agreement which was entered after due negotiation & Whether suspension of providing television rating services under a contract followed by due notice amounts to imposing unfair terms and condition or abuse of dominance by such service provider, when the service recipient was indulging in mal-practices to boost its TRP ratings. NO is the answer.

Facts of the case

The Polimer Media Private Limited, (the "Informant) is engaged in the business of satellite television channels in the name of 'Polimer TV' and "Polimer News'. The opposite party (OP) is a company, engaged in the business of conducting market research for providing television viewership data analysed with the help of an instrument known as 'People Meter' based on Television Audience Measurement System [TAM], which is subscribed and primarily relied upon by the advertisers as well as the channels for negotiating advertising rates. The OP, blamed the Informant for indulging in unfair and unethical practices to manipulate viewership and had purportedly transgressed into the panel homes in order to influence/ subvert the viewers to watch Polimer TV by offering bribe/ gold coins. The Informant denied all the said allegations but at the insistence of OP, the case was investigated by a private investigation agency to look into the conduct of the Informant. The Informant, submitted the investigation report to OP with all the supporting documents. The OP did not took any action. The Informant, thereafter, entered into the Agreement with the OP in respect of the services for providing data for the year 2014 terms of which were alleged to be anti-competitive.

This Agreement, as per the Informant, was aimed at putting an end to all the earlier disputes/issues between the Informant and OP. However, Informant received one email from OP threatening for suspension of the services agreed between them in the said Agreement. The said email had a trailing email, which the Informant claimed to have never received, wherein OP intimated the Informant that it was suspending its services. The email was in breach of the terms of the Agreement between OP and the Informant since it required a notice to be served through registered post with acknowledgment due to the postal address for communication to the Informant. The hard copy of the said email was received by the Informant and the services of OP were alleged to have been suspended. Information was filed before Competition Commission of India, where Informant alleged that the conduct of OP was a clear abuse of its dominant position. The Informant also highlighted few articles/ clauses of the Agreement which were stated to be anti-competitive in terms of section 3 of the Act. The agreement provided arbitrary power to OP to terminate the Agreement without assigning any reasons in case of breach of any of the conditions of the Agreement by the Informant.

Decision

The commission did not find the alleged clauses of the license agreement per se abusive in violation of section 4 of the Act. The Commission found that no prima facie case of contravention of the provisions of sections 3 and 4 of the Act was made out against OP in the matter. Accordingly, the matter was closed under the provisions of section 26(2) of the Act.

Reasoning

1. The agreement was a well negotiated contract between the parties. Section 3 of the Act deals with agreement, arrangement or understanding or action in concert among two or more entities, which causes or is likely to cause appreciable adverse effect on competition within India. Thus, there must be at least two entities for the application of section 3 of the Act. The Agreement which was alleged to be anti-competitive in terms of section 3 of the Act was entered into between the Informant and OP. Since, the Informant was one of the parties to the Agreement and had alleged imposition of unfair conditions, allegation pertaining to the contravention of section 3 of the Act was misplaced.

2. For analysing any case u/s 4 of the Act, determination of the relevant market is generally required. Relevant product market for the OP would be the “provision of services for audience measurement for channels and programs on television”. As regards the relevant geographic market, the Commission was of the view that the relevant geographic market would be “India”. OP was found to be holding a dominant position in the above determined relevant market. Since August 2011, apparently OP was the only player in the said relevant market providing the television audience measurement services. With regard to the allegations of abuse of dominance, the Informant had basically highlighted two allegations – arbitrary suspension of services being provided by the OP and anti-competitive clauses/ articles in the Agreement. As regards the arbitrary suspension of services, the Commission noted that there was a vast exchange of emails/ communications between the Informant and OP before which the services were terminated. From a combined reading of the email exchange, it appears that OP was aggrieved by the Informant for his alleged intervention into the households where 'People Meters' were installed by OP.

3. Further, the email dated 23.09.2013 which was sent by the Informant to OP clearly showed that the Informant was aware that the OP had taken a decision to suspend its services to the Informant because of the botched up investigation undertaken by the Informant. In view of the above factual matrix the alleged conduct did not appear to be abusive in term of the provisions of section 4 of the Act.

(See 2015-TIOL-12-CCI-CACT)