The Kerala High Court (‘KHC’), on October 6, 2022, ordered interim protection to Star India Private Limited (‘Star’) in a petition filed by Star challenging the Order passed by the CCI in the case of Asianet Digital Network (P) Ltd. (‘Asianet’) v. Star. As background, CCI had ordered the DG to initiate investigation against Star for alleged abuse of dominance by providing KCCL significant discounts that were camouflaged as marketing and advertising agreements, thereby causing competitive disadvantage to KCCL’s competitors.^[1]

Aggrieved by the Order of the CCI, Star filled a writ petition before the BHC. The BHC directed Star to furnish documents and other materials as called for by the DG for their investigations but the CCI was directed not to adjudicate the matter any further unless further orders are passed by the BHC. The writ petition was later dismissed for non-maintainability as no part of the cause of action had arisen within its territorial jurisdiction. Star then filled a writ petition before the KHC.

Star argued that the primary regulator with regards to the allegations that were raise was not CCI but the Telecom Dispute Settlement and Appellate Tribunal (‘TDSAT’) as the allegations related to the violation of certain regulations of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 which requires broadcasters to deal with distributors on a non-discriminatory basis and caps the total discounts (15% of Maximum Retail Price (‘MRP’)) and distribution fees (20% of MRP). Star argued that only the TDSAT has the authority to conduct preliminary investigations as the Telecom Regulatory Authority of India Act, 1997 (‘TRAI Act’) has primacy over the Competition Act.

CCI countered that it is the proper sectorial regulator and the actions of Star violates of Section 4(2)(a)(ii) of the Competition Act. Reference was also made to CCI v. Bharti Airtel,^[2] where Bharti Airtel violated certain interconnection agreements and CCI argued that since the allegations in that case pertained to only violation of interconnection agreements, Bharti Airtel case would not apply here. It was also contended that the DHC in Monsanto Holdings v. CCI,^[3] upheld the primacy of the Competition Act when the matters fall under Section 4.

The KHC observed that the facts of Bharti Airtel case were different from this case but held that it would be inappropriate for the court to nonsuit the petitioners, without admitting the writ petition and hearing the matter. Thus, in line with the prior Order of the BHC, the KHC granted interim protection to Star. The KHC did not order a complete stay on the DG investigation, and Star was directed to furnish the required information to the DG, which were to be kept confidential, and the CCI was directed not to adjudicate the issue any further or take coercive steps against Star.

[1] W.P.(C) No. 29767/2022 (U).

[2] CCI v Bharti Airtel Ltd, (2019) 2 SCC 521.

[3] Monsanto Holdings Pvt. Ltd. v. Competition Commission of India, 2020 SCC OnLine Del 598.