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2018 (4) TMI 916 - SC - Indian LawsFunctions under the Competition Act, 2002 - whether there is an abuse of such dominant position under Section 4(2)(c) where the respondent could be stated to have indulged in a practice resulting in denial of market access in any manner? Held that: - It can be seen that in the facts of the case, the broadcaster, namely respondent No. 5, had a broadcast agreement which was entered into for a period of one year from 1stAugust, 2010. This was sought to be terminated within the aforesaid period by the respondent by notices dated 19thJanuary, 2011 - on the present facts, there is an abuse of the dominant position enjoyed by the respondents 1-4 only for the reason that the broadcaster was denied market access on and after 19th February, 2011 until 1st August, 2011. The words “in any manner” one of wide import and must be given their natural meaning. This being the case, it is difficult to appreciate the reasoning of the Appellate Tribunal that, as the broadcaster and MSOs are not in competition with one another, the provisions of Sections 3 and 4 do not get attracted. The “dominant position” held by the respondent MSOs is clearly established for the purpose of Section 4 in the present case, and the Commission finding in that behalf is also not set aside by the Appellate Tribunal. Once a dominant position is made out on facts, whether a broadcaster is in competition with MSOs is a factor that is irrelevant for the purpose of application of Section 4(2)(c) which, as has been found by us, becomes applicable for the simple reason that the broadcaster is denied market access due to an unlawful termination of the agreement between the said broadcaster and the respondents 1-4. Penalty - Held that: - Section 4(2)(c) has been breached, yet the reason given by respondents 1 to 4 for termination being otherwise justifiable - no penalty should be levied. Appeal allowed.
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