TMI Blog2018 (4) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Civil Appeal No.7215 OF 2014 - - - Dated:- 24-1-2018 - MR. ROHINTON FALI NARIMAN AND MR. NAVIN SINHA, JJ. For The Appellant : Mr.P.S.Narsimha, ASG Mrs.Suchitra A. Chitale, AOR Ms.Tanvi Kakar, Adv. Mr.Gurjyot Sethi, Adv. Ms.Jayati Atul Chitale, Adv. For The Respondent : Mr.Meet Malhotra, Sr.Adv. Mr.Vaibhav Gaggar, Adv. Mr.G.S.Ober ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there were disruptions in the telecast of the channel. The Commission further observes that the OP has argued that as per TRAI regulations it is not bound by must carry , as against the informant who is bound by a must provide provision. However, the argument of the OP group does not take away the fact that the informant is dependent on it for transmission of its channel and if it is denied that, it cannot get access to the market. It is not that the informant was not paying the placement fee charged by the OP group. There was no dispute on non-payment of placement or carriage charges. An agreement was duly executed between the informant and the OP group for transmission of the channels of the former. 6.4.10 However, due to the fact that the subscriber base of the OPs is in excess of 40 lacs, every broadcaster including the informant dependent upon their network. In such a situation, the Commission observes that the OP is in position to affect the market in its favour. Due to its market power, the OP group has denied the opportunity for transmission of channel of the informant. The group has no justification for termination of the agreement and its argument for justifyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission has to prevent practices having an adverse effect on competition, to promote and sustain competition in markets, as also to protect the interest of consumers, so that freedom of trade is ensured which in turn leads to healthy economic development of the nation as a whole. Viewed in this light, and after referring to certain other provisions of the Act, the learned Additional Solicitor General argued that the Appellate Tribunal has construed the Act in a constricted manner which would impede the Commissions functioning in future cases. With his usual fairness, he has left it to the court to decide the amount of penalty that ought to be imposed on the facts of the case. 5. Learned senior counsel appearing on behalf of the respondent MSOs has been equally fair to the Court, and has brought to our notice the judgment of the Telecom Disputes and Settlement Appellate Tribunal (TDSAT) dated 25th April, 2012 in which this very termination by the MSOs in the present case was held to be unlawful, in that Regulation 4.2 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004 was breached. Clause 4.2 of the aforesaid Regulation, which overrides a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derstanding or action in concert,- ( i) whether or not, such arrangement, understanding or action is formal or in writing; or ( ii) whether or not such arrangement, understanding or action is intended to be enforceable by legal proceedings; ( f) consumer means any person who- ( i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, whether such purchase of goods is for resale or for any commercial purpose or for personal use; ( ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( b) predatory price means the sale of goods or provision of services, at a price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors. ( c) group shall have the same meaning as assigned to it in clause (b) of the Explanation to section 5. Section 18 Duties of Commission- Subject to the provisions of this Act, it shall be the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India: Provided that the Commission may, for the purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with the prior approval of the Central Government, with any agency of any foreign country. Section 19 Inquiry into certain agreements and dominant position of enterprise - ( 1) The Commission may inquire into any alleged contravention of the provisions contained in sub-section (1) of section 3 or sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are parties to such agreements or abuse: Provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement, whichever is higher. ( d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission; ( e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any; ( g) pass such other order or issue such directions as it may deem fit: Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to section 3 or section 4 of the Act is a member of a group as defined in clause (b) of the Explanation to section 5 of the Act, and other members of such a group are also responsible for, or have contributed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( 4) The Appellate Tribunal shall send a copy of every order made by it to the Commission and the parties to the appeal. ( 5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavor shall be made by it to dispose of the appeal within six months from the date of receipt of the appeal. Section 53T Appeal to Supreme Court- The Central Government or any State Government or the Commission or any statutory authority or any local authority or any enterprise or any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to them: Provided that the Supreme Court may, if it is satisfied that the applicant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed after the expiry of the said period of sixty days. Section 60 Act to have overriding effect- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) and (ii) of clause (a) of the Explanation apply, the respondent could be said to be in a dominant position , for the purpose of Section 4, in the facts of the present case. 10. The question which now arises is 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. 11. 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. The TDSAT has, by its order dated 25thApril, 2012, adverted to Regulation 4.2 of the relevant Telecom Regulations, and has found that the respondents have not followed the aforesaid regulations, inasmuch as no reasons for termination have been given in the notices of termination. This being the case, it is clear that, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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