BY: Samriddha Sen
(This post is the second of a two part series on the topic – ‘India’s Antitrust Problem with Big Tech’)
The second part of this piece analyses inherent competition concerns persisting with the nature and operation of Big Tech companies which hinder the regulatory capacity of CCI in effectively responding to the issues identified in the first part of this piece as well as highlight the overlapping jurisdiction of the CCI and sectoral regulators as a consequence of the continuingly expanding horizons of Big Tech’s influence on allied and ancillary sectors.
INHERENT CHALLENGES WITH REGULATING BIG TECH
As regards challenges in determining ‘abuse of dominant position’ for Big Tech, the first step is to delineate the market. The fundamental problem with such delineation, specifically in the context of Big Tech, arises primarily because of the multiple roles played by different players and the complex relations which interconnect said roles. For example, Apple is simultaneously a platform through its OS, Apple Store, and iTunes; a seller of multiple technological products; and an IT infrastructure provider through its iCloud service. Therefore, technology market sectors within which Big Tech operate are not homogenous monoliths since there are numerous relevant markets within the said sectors, with each relevant market being characterised by specific competition dynamics. Thus, the traditional Small but Significant Non-Transitory Increase in Price approach to market definition may not work in such cases.
A relevant product market, which is defined in terms of substitutability of products, raises another issue in said technology sectors which are driven by data. Since substitutability hinges on the price of goods or services, Big Tech companies which provide products or services for free in exchange for data can render price-based thresholds to be redundant. Such companies establish market dominance by exploiting data exclusively available to them, and while CCI identifies ownership and access to data as a key driver [1] in technology markets, the competition regulator’s concerns with data-driven market power appears dispelled in cases where there is sufficient evidence of multi-homing [2] by users. [3]
On account of the difficulty in delineating relevant market owing to Big Tech’s circumvention of price-based thresholds, it is therefore necessary to scrutinise data flows occurring in such technology markets, in addition to monetary transactions. It is notable that although the Competition Law Review Committee was of the opinion that the statutory definition of ‘price’ under section 2(o) of the Act is expansive enough to include non-monetary considerations thereby technically encompassing data within its wide ambit, such opinion has not translated into any practicable enforcement policy as of yet. Nonetheless, the inclusion of non-monetary thresholds such as data access, ownership, or flow within the statutory definition of ‘price’ can assist regulators in delineating and determining relevant market for the purposes of instituting appropriate antitrust measures against Big Tech.
As regards challenges with regulating combinations, most Big Tech acquisitions derive value from data or innovation held by the firm being acquired. In such acquisitions, since the acquired firm may not necessarily possess a sizable asset base and may resultantly generate an insignificant turnover, the monetary value of the acquired firm in terms of its assets and turnovers is an insufficient threshold for determining the transaction’s potential significance to competition. CCI under section 6 of the Act has no power to assess non-notifiable transactions (combinations not meeting the thresholds of assets and turnovers prescribed under section 5 of the Act), even if their potential harm to competition is evident. In an attempt to address this regulatory hurdle, an amendment in the manner of a proviso to Section 5 of the Act proposed vide the 2020 Competition Amendment Bill (hereinafter ‘Bill’) enables the Central Government to prescribe any criteria, in addition to the thresholds of assets and turnovers specified in sub-sections (a), (b) & (c) of section 5, for the purpose of classifying a transaction as a combination.
Since the aforementioned amendment proposed by the Bill empowers the Central Government to introduce any new and necessary threshold for notifying combinations, specific tests covering combinations in digital markets which are low on monetary value but nonetheless significantly impact competition should be prescribed, subject to the passage of said Bill. Examples of such specific tests, in the context of Big Tech, could be either user-based thresholds which assess the resultant impact of such combinations on data ownership and the user base or deal value thresholds which assess the size or value of transactions even when the combinations do not meet current statutorily prescribed assets and turnover thresholds.
JURISDICTIONAL OVERLAP OF COMPETITION & SECTORAL REGULATORS
The jurisdictional tussle between competition and sectoral regulators involves contra-distinguishing responsibilities as one of ex-post reactive interventions in markets and ex-ante sectoral interventions in fulfillment of statutory outcomes, respectively. With the expanding horizons of Big Tech, there exists the prevailing possibility of jurisdictional overlap between the CCI and other sectoral regulators. For example, as regards the telecommunications industry, the Telecom Regulatory Authority Act of 1997 empowers the Telecom Regulatory Authority of India (hereinafter ‘TRAI’) to ‘facilitate competition’ and ‘promote efficiency in the operation of telecommunications services’. With respect to other sectoral regulators, the sectoral-specific enabling laws not only outline this jurisdiction with far greater specificity, moreover the use of statutory language in said enabling laws, insofar as competition enforcement is concerned, is often identical to that of the Competition Act.[4] Use of such statutory language blurs the distinction between CCI and other sectoral regulators with respect to competition enforcement responsibilities. Furthermore, even sectoral regulations such as TRAI’s attempted regulation of OTT bundling has had significant overlaps with CCI’s antitrust enforcement mandates.
The Supreme Court in CCI v. Bharti Airtel settled this issue by upholding CCI’s jurisdiction in such overlaps and ruling that the sectoral regulator will first be required to decide issues falling within its own purview before proceeding onto questions of competition. The issue of cross-sectoral jurisdictional overlaps has also been acknowledged by CCI in its 2021 “Market Study on the Telecom Sector” with the observation that issues of overlapping jurisdiction needed to be harmonised through better regulatory design and improved lines of communication across different sectoral regulators by streamlining the statutorily prescribed inter-regulatory consultation mechanism laid down within section 21 read with section 21A of the Competition Act.
CONCLUSION
The limitations of competition law are perhaps nowhere as evident as in the case of reigning in Big Tech, as any enforcement action in such cases involve tackling multi-sided digital markets which are not only dynamic, but also exhibit peculiar business practices not common to other sectors or industries. The emergence of dominant Big Tech platforms entertains a plethora of competition concerns such as typical entry barriers in terms of data, exploitative behavior and exclusion or foreclosure of competing players, among others. To address these pressing concerns and with the ever-growing necessity of promoting and preserving economic welfare, economic efficiency and free and fair competition within markets, substantive reforms should be undertaken such that the existing regulatory regime is adept at responding to new and emergent antitrust challenges arising from technology markets.
[1] Matrimony.com Ltd v Google LLC CCI Case Nos 7 and 30 of 2012.
[2] Vinod Kumar Gupta v WhatsApp Inc CCI Case No 99 of 2016 [19].
[3] Track Call Cab Pvt Ltd v ANI Technologies CCI Case Nos 6 and 74 of 2015 [94].
[4] Competition Act 2002, ss 3 4 5 and 19.
(Samriddha is a law undergraduate at the Department of Law, University of Calcutta. The author may be contacted via email at samriddho66@gmail.com)
Cite as: Samriddha Sen, ‘India’s Antitrust Problem With Big Tech—Part 2’ (The RMLNLU Law Review Blog, 29 October 2021) <https://rmlnlulawreview.com/2021/10/29/indias-antitrust-problem-with-big-tech-part-2/> date of access
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