Introduction

In its February 25 2016 order the Competition Commission of India (CCI) closed a case involving the alleged abuse of a dominant position by television audience measurement services agency TAM Media Research Private Limited. The alleged abuse related to the procedure that had been in place for the measurement of television rating points (TRPs) and television viewership ratings (TVRs) since 2011.

The case was filed by public broadcaster Prasar Bharati, which owns television channel National Doordarshan.

Background

TAM's methodology for measuring TRPs included the installation of television meters in areas with a population of 100,000 or more. TAM had installed a total of 8,000 meters throughout India, which represented a narrow statistical base.

Prasar Bharati alleged that the TRPs and TVRs generated by TAM had underestimated the actual viewership of Doordarshan, as its viewers were primarily located in rural areas. Thus, Prasar Bharati alleged that the TRPs and TVRs had put it in a disadvantageous position and given undue advantage to broadcasters that aired programmes only in urban areas.

Director general report

The director general's report considered the market for the provision of audience measurement services for television channels and programmes in India, observing that audience measurements of other media platforms such as print, radio and the Internet are not substitutes for television audience measurement. Within this market, the report considered that TAM had enjoyed a 100% market share (ie, a monopoly) since 2011 and had thus enjoyed a dominant position.

The report considered that the exclusion of semi-urban and rural areas from the sample size had imposed unfair and discriminatory conditions on broadcasters whose channels and programmes were focused on the rural market, as they had not been duly compensated by advertisers. This imposition violated Sections 4(2)(a)(i) and 4(2)(c) of the Competition Act 2002.

The report also noted that in charging advertisers and media agencies higher annual subscription fees for the provision of television viewership data, TAM had imposed a discriminatory price. This imposition violated Section 4(2)(a)(ii) of the Competition Act.

Finally, the report held that since TAM was the only user of such measurement meters in India, this had limited the technological and scientific development of the manufacturing of such meters, which violated Section 4(2)(b)(ii) of the Competition Act.

CCI decision

The CCI agreed with the director general's delineation of the relevant market. It considered that the market should be that of "audience measurement for channels and programmes on television in India". The CCI also agreed with the director general's finding that TAM had held a 100% share in the relevant market since August 2011, indicating its market power. Broadcasters and advertisers that were customers of TAM had been dependent on its services, as it had played a crucial role in the decision-making process. Thus, the CCI considered that TAM had held a dominant position in the relevant market.

However, in regards to the non-coverage of rural areas in the measurement of audience viewership, the CCI noted that TAM had clearly disclosed to its stakeholders and stated on its website – as well in every subscription contract that it had entered into with advertisers and broadcasters – that its data was largely representative of viewing preferences of the urban and semi-urban population. Hence, no unfair and discriminatory condition had been imposed on any subscriber, as all subscribers to TAM's data had been made well aware of the methodology used by TAM and its limitations.

In addition, in regards to the allegation of discriminatory pricing by TAM, the CCI noted that broadcasters and advertisers and media agencies were not similarly placed subscribers of TAM. Since they were differently situated, the allegation that the higher subscription rate charge for broadcasters was discriminatory was unfounded.

The CCI closed the case, finding that TAM had not abused a dominant position.

For further information on this topic please contact MM Sharma at Vaish Associates by telephone (+91 11 4929 2525) or email (mmsharma@vaishlaw.com). The Vaish Associates website can be accessed at www.vaishlaw.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.