Further to information filed by Thiruvananthapuram Entertainment Network (P) Ltd. (‘TENL’) against Star India Pvt. Ltd.(‘Star’), CCI, on December 29, 2017 directed the DG to investigate into the matter and ascertain if there was a contravention of Section 4 (2) (a) (ii) of the Act by Star.TENL supplies signals for telecasting various TV channels including Star’s channels to customers at different places. It has around 22,000 customers in the State of Kerala. Star is a broad- caster of satellite based television channels in India, including popular channels such as Star Plus, Star Sports and Star Gold. In its information filed under Section 19 (1) (a) of the Act, TENL alleged that Star was engaging in price discrimination with TENL, by consistently increasing its license fee to TENL from June 30, 2014, even though other larger distributors were not asked to pay higher license fees to Star for the same set of channels. TENL alleged that the license fee was increased once Star took over certain Malayalam channels in June 2014 and that such conduct contravened Sections 3 and 4 of the Act.CCI held that the alleged conduct did not fall within the scope of Section 3(3) of the Act, which deals with competitor conduct. Since the scope of the agreements between Star and TENL did not fall within the specific clauses of Section 3(4) of the Act, CCI ruled out contravention of Section 3(4) of the Act as well.For examining the alleged conduct under Section 4 of the Act, CCI identified the relevant market as the ‘market for provision of broadcasting services in the State of Kerala’. To assess Star’s market position CCI directed Star to provide the names and market share of its competitors in the state of Kerala. CCI noted that since Star provided a generic response (simply stating that 881 private channels were registered with the Ministry of Information and Broadcasting and Star competed with all 881), it was constrained to rely on information from the public do- main to complete its preliminary assessment. On the basis of publicly available data, namely, viewership data issued by the Broadcast Audience Research Council for April, 2017, CCI noted that Star was a leading player with approximately 40-50 % share of viewership in Kerala, with the next closest competitors enjoying a viewership share of 20%t and 10% respectively. Accordingly, CCI concluded that Star enjoyed a dominant position in the relevant market.To examine whether Star had contravened Section 4 of the Act by engaging in price discrimination, CCI directed TENL and Star to provide details of actual rates charged from TENL’s larger competitors, i.e. Kerala Communicators Cable Limited (‘KCCL’), Asianet Cable Vision (‘ACV’) and DEN Networks Limited (‘DEN’). On the basis of information received from Star, CCI noted that Star provided incomplete, inconclusive and even contradictory information to it. Star con- tended that relevant regulations issued by the Telecom Regulatory Authority of India (‘TRAI’) required it to treat similarly placed customers equally. To the extent that TENL had a much smaller subscriber base than other multi system operators (‘MSO’), it was not similarly placed. However, CCI noted that Star failed to provide relevant details of the size of the subscriber base of other similarly placed MSO’s or the prices it charged to MSOs with a larger subscriber base.In response to CCI’s queries on market share information, TENL sought to withdraw the information filed with CCI stating that its dispute with Star was resolved, as Star had agreed  to reconsider its tariff rates. CCI rejected TENL’s request for withdrawal on the grounds that a settlement between an informant and the alleged contravening entity cannot be the basis for terminating proceedings before it and that, in any event, the alleged contravention needed to be examined in relation to the market in general, and not only from TENL’s perspective. CCI accordingly found that (i) Star’s inability to provide any reliable evidence to refute the allegations of price discrimination; (ii) price discrimination brought out in the information; and (iii) Star’s speedy resolution of the infomant’s grievance followed by an evasive reply to CCI, prima facie] indicated that Star was is acting in contravention of the provisions of the Act and directed the DG to conduct an investigation under Section 4(2)(a)(ii) of the Act.In its order, CCI noted that its jurisdiction was complementary to and in addition to that of TRAI and specifically observed that its powers and functions under the Act appeared to be distinct in terms of investigation process, inquiry and remedies from that of TRAI under the TRAI Act, 1997.

* Case No.13 of 2017 .