Unnecessary To Dwell Any Further On The Issues Projected In The Information By Examining The Matter On Merits: Competition Commission of India
The Informant had filed an information alleging contravention of Sections 3 and 4 of the Competition Act. However, the Informant couldn’t provide sufficient details or proof to substantiate the claims. As it lacked merits, the Information filed could not be maintained. This was decided in the matter of In Re: R. Gunasekaran and Broadcast Audience Research Council [Case No. 11 of 2021], before Hon’ble Chairperson, Ashok Kumar Gupta, Members, Ms. Sangeeta Verma and Mr. Bhagwant Singh Bishnoi. The Informant claims that the manipulation of the ratings violated both Section 3 and Section 4 of the Act. In this regard, based on the OP’s response, the OP filed a criminal complaint with the Mumbai Police in reference to the ‘TRP Scam.’ The OP also claimed to have supported many law enforcement organizations in their investigations into the ‘ratings manipulation.’ The Informant did not question the OP’s responses or allegations. The Informant had stated that the OP paused the release of ratings for only news channels, which makes it reasonable to assume that it is defective for all other types of channels as well. The Commission took notice of the OP’s submission that it temporarily decided to stop reporting news and specialized genres on October 15, 2020, in order for its Technical Committee to examine and supplement the existing requirements for providing audience data for the aforementioned categories. Following that, the MIB requested that the OP maintain the status quo with respect to the temporary intermission in the reporting of Channel Wise Weekly Data for the news genre. The OP’s Technical Committee made recommendations on the revised reporting standards, which the OP was in the process of putting into effect once MIB’s directives to maintain the status quo were lifted. After considering submissions from both the parties, the Commission held that, “In view of the above developments and taking the submissions and assertions made by the OP and as noted in the preceding paras, the Commission is of the view that it is unnecessary to dwell any further on the issues projected in the Information by examining the matter on merits, and accordingly, the Information is ordered to be closed…….Before parting with the order, the Commission deems it appropriate to deal with the request of the Opposite Party seeking confidentiality over certain documents / information filed by it under Regulation 35 of General Regulations, 2009. Considering the grounds put forth by the Opposite Party for the grant of confidential treatment, the Commission grants confidentiality to such documents/information in terms of Regulation 35 of the General Regulations, 2009, read with Section 57 of the Act for a period of three years from the passing of this order. It is, however, made clear that nothing used in this order shall be deemed to be confidential or deemed to have been granted confidentiality, as the same have been used for the purposes of the Act in terms of the provisions contained in Section 57 thereof.” Click Here to Read the Judgement Judgement Reviewed by Vagisha Sagar
Opposite Party COMPETITION COMMISSION OF INDIA Case No. 121 In Re: R. Gunasekaran M 15 Casa GrandeNo. 120 Velachery Main Road Chennai 600100 Broadcast Audience Research Council Rose Cottage Next to Citi Tower 61 Dr. SS Rao Road ParelMumbai 400012 Mr. Ashok Kumar Gupta Ms. Sangeeta Verma Mr. Bhagwant Singh Bishnoi Order under Section 26(2) of the Competition Act 2002 The present Information has been filed under Section 19(1)(a) of the Competition Act 2002 by Mr. R. Gunasekaran against Broadcast Audience Research Council alleging contravention of the provisions of Sections 3 and 4 of the Act. Case No. 121 ratings. The OP is stated to be a television audience measurement rating agency registered as a not for profit company under Section 8 of the Companies Act 2013. The OP is further stated to be a joint industry body with stakeholder representation from all the relevant stakeholders in the audience measurement ecosystem viz. the Indian Broadcasting & Digital Foundationthe Indian Society of Advertisersand the Advertising Agencies Association of IndiaThe OP was granted registration to operate as a Television Rating Agency by the Ministry of Information & Broadcasting in 2015 in terms of the Policy Guidelines for Television Rating Agencies India The OP has submitted that MIB also constituted a committee in November 2020 headed by CEO Prasar Bharati to review the MIB Guidelines and suggest ways to further strengthen the system. This committee already submitted its report in January 2021 which is currently being considered by the Ministry. iii) The Commission lacks the necessary jurisdiction to look into the issue of publication of television ratings by OP or the alleged ‘fake TRPs’ as it is already occupied and falls within the exclusive domain of the MIB. iv) In relation to the ‘TRP Scam’ the OP has submitted that its vigilance team which investigates unusual behaviour in households found that five panel homes serviced by one of the vendors Hansa Market Research Private Limited were abnormal and accordingly the same was directed to be investigated further. It was noted that one of the employees of the said vendor was involved in tampering and influencing the household members of BARC for unlawfully gaining more viewership data thereby increasing the ratings of certain channels. Further pursuant to the efforts of inter alia the OP and the vendor a criminal complaint was registered with the Mumbai Police regarding cheating in relation to the ‘TRP scam’. The OP has further averred that it has assisted several law enforcement agencies in their investigations surrounding the ‘TRP scam’. Case No. 121 v) Subsequent to the various news items about the rating manipulation the OP on 15.10.2020 temporarily decided to cease the reporting of news and niche genres with a view to allow its Technical Committee review and augment the existing standards of reporting viewership data for the aforesaid genres. vi) The OP has further averred that no case for violation of Section 3 or Section 3(4) specifically is made out against the OP for the following reasons: The Informant has failed to identify the ‘agreement’ which forms the basis of its allegation of violation of the provisions of Section 3(4) of the Act by the OP. Further the Informant has also failed to assert that the purported ‘agreement’causes or is likely to cause an appreciable adverse effect on competition in There is no whisper in the Information that the OP has entered into any ‘tie in arrangement’ or ‘exclusive supply agreement’ or ‘exclusive distribution agreement’ or ‘refusal to deal or ‘resale price The Informant has also failed to establish as required by Section 3(4) of the Act that the OP and the faked television channels belong to different stages or levels of the production chain in different markets. vii) Further as per the OP no case for violation of Section 4 is made out against the OP for the following reasons: The Informant has wrongly identified the relevant market to be the market of ‘television’ audience measurement. The OP avers that the relevant market is the market of ‘audience measurement’ as today all content that is broadcast on television is also made available on digital OTTplatforms. The OP is not dominant at all in the relevant market of ‘audience Case No. 121 The Informant has failed to produce a single document on record in order to show that the OP has manipulated television audience estimates or to show that the OP has colluded with any television channel. It is the OP’s former employees that have been arrested for their alleged role in the manipulation of television audience estimates and not the OP or any of its current employees key managerial personnel past and current directors subsidiaries. The provisions of the Act cannot be invoked to initiate investigation for alleged criminal conduct by errant former employees mischaracterizing it as anticompetitive conduct by the organization. viii) The interim relief sought by the Informant is contrary to the directions of the MIB in order No. 2 32 2020 BP&L dated 15.02.2021 directing the OP to maintain the status quo. present Information. 12. Based on the above the Opposite Party has prayed the Commission to dismiss the 13. The submissions of the Informant in the rejoinder are summarised below: Merely because the sectoral authorityis seized of the matter it cannot be said that the jurisdiction of this Commission has been ousted in toto and such an interpretation would necessarily render the jurisdiction of the Commission infructuous as effectively every sector of goods and services is governed by a sectoral authority. The term ‘agreement’ as defined under the Act is given the widest possible interpretation as it may not always be possible to locate a conventional agreement between colluding parties. The relevant market is the market for ‘television audience measurement’. Further there is no other recognized entity providing the aforementioned services and a customer has no active substitutes for those services provided Case No. 121 by the OP. Thus the OP holds a dominant position in the said relevant market. The Informant has also relied on the decision of the Commission in Prasar Bharati v. TAM Media Research Private Limited to assert its submissions. The intent of the OP and its employees at the time of the commission of the ratings manipulation is relevant and not that of the current employees. Criminal intention may be imputed to a company if an offence is committed in relation to the business of the company and such offence is committed by a person or body of persons in control of the affairs of the company. Proceedings before the Commission are independent of the criminal proceedings as the scope of inquiry is limited to the economic impact and effect on market and competition as a result of the ratings manipulation. The Informant pointed out that though the OP has stated that the TRP Scam was committed solely by its erstwhile CEO and COO and no other employee or the company itself was involved it is not understood as to how two individuals independently managed to substantially manipulate the ratings without the assistance of any other employee when the primary objective of the OP is to provide a transparent and reliant television audience measurement system. At any rate the CEO and COO represent the senior management of the company and have significant control over the affairs of the OP. 14. The Commission has perused the Information and the material available on record. The Informant has alleged that the manipulation of the ratings has resulted in violation of the provisions of Section 3 as well as Section 4 of the Act. In this regard from the reply of the OP it appears that the OP got a criminal complaint registered with the Mumbai Police in relation to ‘TRP Scam’. The OP further claims to have assisted several law enforcement agencies in their investigations surrounding the ‘ratings manipulation’. The Informant has not contested the said submissions and assertions of the OP. Case No. 121 15. The Informant has further averred that the OP has suspended publication of ratings of only news channels whereas if the system is faulty in respect of news channels then it can be ascribed with a fair degree of certainty that the system can also be faulty in respect of other genres of channels too. In this regard the Commission takes note of the submission of the OP that on 15.10.2020 it temporarily decided to cease the reporting of news and niche genres with a view to allow its Technical Committee to review and augment the existing standards of reporting viewership data for the aforesaid genres. Thereafter the MIB vide its letter dated 15.02.2021 had asked the OP to maintain status quo with respect to temporary pause in the reporting of Channel Wise Weekly Data for the news genre. It is further submitted that the OP’s Technical Committee has provided its recommendations on the revised reporting standards and the OP is in the process of implementing the same once the directions for maintaining status quo are lifted by MIB. In view of the above developments and taking the submissions and assertions made by the OP and as noted in the preceding paras the Commission is of the view that it is unnecessary to dwell any further on the issues projected in the Information by examining the matter on merits and accordingly the Information is ordered to be closed. 17. Before parting with the order the Commission deems it appropriate to deal with the request of the Opposite Party seeking confidentiality over certain documents information filed by it under Regulation 35 of General Regulations 2009. Considering the grounds put forth by the Opposite Party for the grant of confidential treatment the Commission grants confidentiality to such documents information in terms of Regulation 35 of the General Regulations 2009 read with Section 57 of the Act for a period of three years from the passing of this order. It is however made clear that nothing used in this order shall be deemed to be confidential or deemed to have been granted confidentiality as the same have been used for the purposes of the Act in terms of the provisions contained in Section 57 thereof. Case No. 121 18. The Secretary is directed to communicate to the parties accordingly. Sd Ashok Kumar Gupta) Sd Sangeeta Verma) Sd Bhagwant Singh Bishnoi) New Delhi Date: 23 11 2021 Case No. 121 