Competition Law

[By Priyal Jain & Harshita Jindal] The authors are students of Rajiv Gandhi National University of Law.   Introduction Digital platforms have emerged as a focal point of debate in the evolving digital economic landscape, especially in the context of predatory pricing, where determining the cost of services remains an idea that defies consensus. It has again made headlines as the Competition Commission of India (CCI) notified the (Determination of Cost of Production) Regulations, 2025 (hereinafter, “New Cost Regulations”) which replaced its 2009 predecessor. These regulations assume high significance as they try to cater to the changing pricing strategies that have been on the rise with the advent of digital markets. The Indian Competition Watchdog, i.e., CCI, has been using the dual test of assessing predatory pricing as provided in the case of MCX v. NSE, focusing on prices below cost measure and the likelihood of recovering losses incurred. The assessment criteria needs to be outlined with refined discernment as deep discounting, which is done to expand the network of customers by giving heavy discounts and incentives, is a fundamental characteristic of digital markets and often leads to atypical deductions while determining predatory pricing in these markets. Consequently, to regularize the concept of cost, CCI adopted a mechanism based on the Areeda-Turner test, according to which the price of the product should be below Average Variable Cost (“AVC”) to establish predatory pricing. However, jurisprudence laid down in Bharti Airtel and Fast Track Call Cab (Ola case) takes an opposite stance where zero pricing was not a determining factor in accessing predatory pricing. These cases mark differential standpoints taken by CCI in applying cost regulation to e-commerce or digital platforms and create an ambiguous haze around the subject. This blog delves into the implications of the newly introduced cost regulations on the digital marketplace and what dual-edged effect it can create for the future of pricing strategies. Analysis of the New Cost Regulations The CCI in its recently notified New Cost Regulations has brought several changes with respect to the framework of cost determination, which it has also explained through its General Statement, used to assess predatory pricing in any market. The new regulations have amended the definitions of various cost benchmarks like Long Run Average Incremental Cost (“LRAIC”), Average Avoidable Cost (“AAC”), etc., removed the term market value, and introduced Average Total Cost. Moreover, CCI has adopted a sector agnostic, cost based framework allowing for case-by-case assessment of predatory pricing, as proclaimed by the General Statement. Predatory pricing is one of the many pernicious forms of abuse of dominance where a dominant entity, sets the prices of goods/services below the cost of production where an “as-efficient competitor” could not match the prices without incurring significant losses. Such conduct is taken by a dominant enterprise to drive existing market players out of the market, thereby hampering competition. Thus, to establish a case of predatory pricing, establishment of a dominant position in the relevant market, pricing below cost, and intention to reduce or eliminate competitors is essential. To satisfy the pre-requisite of demonstrating pricing below cost, an appropriate measure of determining the cost of the product is imperative, hence, CCI has formulated the Cost Determination Regulations to provide a structured and uniform framework for assessment of the same. The Cost Determination Regulations, elucidate various cost measures like LRAIC, AAC, AVC, etc., although CCI has only been using AVC to examine whether the pricing was below cost or not. However, now with the New Cost Regulations accompanied by the General Statement, CCI has stated that it will examine predatory pricing using other cost measures as well depending upon each case. How will CCI translate its statement into practice is yet to be seen. A Forward Step: Impact of the New Cost Regulations on the Digital Market Digital markets are characterised by certain unique features with respect to their cost and prices due to which the traditional Areeda-Turner or AKZO rule can notbe applied to them. The new regulations have opened a fresh chapter in competition compliance by such industries. CCI has clarified that the case-by-case assessment would enable the consideration of unique features and evolving dynamics of digital markets while evaluating predatory conduct. The cost structure of digital markets, particularly characterised by network effects, is quite different than most other industries since they are distinguished by higher fixed costs, lower variable costs, larger common and joint costs, etc. For instance, Instagram incurred high initial costs in developing the app but it does not incur any additional cost with an increase in the number of users, Netflix incurs costs for acquiring global content, and building algorithms and interface, however, these costs are not tied to any individual subscriber or content piece. Hence, in such a kind of market using the conventional AVC concept contradicts the intended reasoning. In digital markets, relying exclusively on the cost benchmark established in the AKZO rule may allow the pricing strategies to bypass scrutiny as prices can easily be set above AVC and still cause genuine harm to the competition. In various judgments of India as well as European Union (“EU”) , courts have concurred with the above-mentioned rationale. In MCX v NSE, the Director General report stated that since stock exchanges work on the basis of the high level of network externalities and incur huge sunk costs, the use of ATC or LRAIC to assess predation in their cases is more justified. Moreover, in the Qualcomm case, the General Court of EU while endorsing the LRAIC standard, expressed that technologically intensive markets are marked by substantial fixed costs, primarily from R&D, while variable costs remain low and since these fixed costs are closely associated with the specific product sold, LRAIC would be a suitable measure to assess below-cost pricing as it incorporates both fixed and variable costs along with the sunk cost. The European Case of Post Danmark also establishes that in certain cases pricing below AAC and AIC displays evidence of a plan for eliminating competitors

[By Sakshi Tiwari & Liesha Mishra] The authors are students of Dr. Ram Manohar Lohiya National Law University, Lucknow.   Introduction The Competition Commission of India has initiated an investigation into Google over alleged anti-competitive practices in India’s burgeoning gaming sector stemming from complaints over its monopolistic behaviour. The investigation stems from the complaint filed by the real money gaming app WinZO, which alleges that Google is abusing its dominant position by favouring Daily Fantasy Sports (“DFS”) and Rummy applications with a competitive edge while excluding other Real Money Gaming Platforms (“RMG”).   Despite all these applications belonging to the same category of skill based real money games, where there are monetary stakes and a degree of player skill determines outcomes, Google’s policy selectively permits only DFS and Rummy on its Play Store while restricting other RMG applications. This selective classification creates an artificial divide within the same category, granting DFS and Rummy a direct market advantage over other RMG apps that also involve real money transactions and rely on skill rather than luck.    Google’s policy lacks transparency in defining why only DFS and Rummy qualify for inclusion while excluding other skill-based games. This arbitrary distinction distorts fair competition, limits consumer choice, and is now under scrutiny by the Competition Commission of India.  In recent years, India’s online gaming industry has witnessed a surge in users driven by the increasing affordability of smartphones and a growing youth population. In 2023, India had 568 million gamers which accounts for the second largest gamer use base trailing only China. By amending the IT Rules 2021, the government seeks to regulate all online games and provide compliance regulations for online gaming intermediaries offering RMGs. The Supreme Court of India has clarified that when success hinges more on skill than it does on chance in a game, such a game will not be constituted as gambling.   The relevance of this distinction lies in its legal validation that establishes a basis for differentiating skill-based games from gambling. Games like DFS and Rummy are legally recognised as skill based and yet Google’s policy does not reflect the same. By restricting other apps, it creates an inconsistency between legal recognition and market access, raising concerns about fairness and transparency. Google’s Play Store Policies: A Double-Edged Sword Google’s policies, which are enforced through its ecosystem of platforms such as Play Store, Google Pay, and Google Ads, have been criticised for restricting market access and favouring specific online games, thereby distorting the competitive landscape. These concerns have been highlighted in Google’s pilot program which granted exclusive Play Store hosting rights to DFS and Rummy applications.   In this scenario, other RMGs, including WinZO users have to opt for sideloading which is a download method directly from the internet, for apps outside of the Google Play Store, reducing exposure and coverage. Given that Google Play Store holds a hegemonic position in downloading and using apps, it deeply impairs the capabilities of other competing apps to gain higher exposure. Thereby, apps like DFS and Rummy push other RMGapplications to the periphery by leveraging their access to a vast user base.    While the reasoning behind introducing this pilot program has been framed as an exploratory measure to foster a secure platform for RMGs, its execution has revealed a glaring imbalance. The selective inclusion of only two games while leaving out the rest from the pilot program raises serious questions about the objectivity of Google’s gatekeeping practices.    Adding to this complexity is Google’s ad policy since 2019, which allows advertisement policy for DFS and Rummy applications, while simultaneously citing regulatory uncertainty to justify excluding other RMGs. This contradiction brings to light a policy that is both supportive and restrictive by giving certain apps the means to grow while restricting others.   Google’s Alleged Abuse Of Dominance The complaints against Google highlight concerns about its conduct in markets where it already holds a dominant position. The CCI in Google Android case has found Google to be dominant in both the licensable Operating System (OS) market for smart mobile devices in India and the licensable OS market on the device with app stores.   Building on this precedent, WinZO has alleged that Google’s conduct is discriminatory and imposes unfair conditions by creating a two-tier market grating selected apps superior visibility while marginalising the others thereby violating Sections 4(2)(a)(i), 4(2)(b)(i), and 4(2)(c) of the Competition Act, 2002.    Google’s previous penalties for anti-competitive practices in the Android case, further strengthen concerns that it is leveraging its dominance in the gaming industry by selectively favouring certain apps while restricting others without clear justification. This issue raises broader questions about platform neutrality, fair competition, and consumer choice in India’s growing digital economy.  Payment Systems: Restrictive Practices And Monetization Control To download WinZO, sideloading may work as an alternative to Play Store but this creates additional burden on users. Google warnings during sideloading, ostensibly designed as a security measure, often discourages users by emphasising risks such as malware infections. This situation is further worsened by Google’s approach to transaction-related warnings. While payment warnings by Google Pay have been installed under regulatory compliances, such warnings are absent in the case of DFS or Rummy applications.    There has been a strong dependency created by Google on its ecosystem making it nearly impossible for app developers to compete outside the realm of its platforms. All of this necessitated the investigation by CCI to unveil the potential effects of the combination of practices that Google has undertaken in this case.    How Does Advertising Affect Markets? In the order released by the CCI, WinZO has claimed that Google’s Pilot Program to allow downloads for only DFS and Rummy could cause market distortions and has also contended the unfairness of Google’s Ad Policy which currently permits only these two applications to run ads. Google’s Play Store policies were in news in the year 2022 after CCI’s imposition of monetary penalty in light of its anti-competitive practices. Thus, while there is enough possibility for Google Play Store to make the headlines again, the ad

[By Anushka Ajay] The author is a student of National Law Institute University, Bhopal.   INTRODUCTION Competition law has increasingly addressed healthy competition in sports, where various organizations train athletes and regulate sports. The recent Competition Commission of India (hereinafter ‘CCI’) order in In Re: TT Friendly Super League Association v. Table Tennis Federation of India (TTFI) reflects a growing trend of sports federations engaging in monopolistic and anti-competitive practices, including disputes over player participation in tournaments, raising concerns about the balance of power. ANALYSIS Sports organisations as ‘Enterprise’ The first step in applying competition law is determining if the subject is an “enterprise”, a concept explored in Surinder Singh Barmi v. BCCI. In this case, the informant filed a complaint against the BCCI over its handling of IPL franchise, media, and sponsorship rights. During investigation by the CCI, BCCI argued it was not an enterprise, thus outside CCI’s jurisdiction. The CCI ruled that the BCCI qualified as an enterprise under the Competition Act, 2002 due to its commercial activities like media rights sales and ticketing, despite being a non-profit entity. The CCI’s ruling followed European case laws, such as MOTOE v. Elliniko and Meca-Medina, which recognized sports as economic activities subject to competition laws. This was reaffirmed in Dhanraj Pillay v. HI and applied in Hemant Sharma v. AICF, where the AICF was also deemed an enterprise due to its involvement in commercial activities beyond its regulatory functions. Carving out the Relevant Market Relevant market is defined under Section 2(r). The CCI agreed with the Director General’s (hereinafter referred to as DG) market definition, considering table tennis’ unique characteristics, event and player restrictions, and the national oversight by TTFI, with rules enforced by state and district associations, reflecting the competitive pressures faced by the enterprise. It was defined as: ‘Market for organization of table tennis leagues/events/ tournaments in India’- Upstream Market ‘Market for provision of services by the players for table tennis leagues/events/ tournaments in India’- Downstream Market. Dominant Position The Commission recognized the dominance of organizations in India’s table tennis ecosystem, including district associations, state associations, and the national federation- TTFI. TTFI, the apex body, oversees player selection, organizes events, and has authority at all levels, thereby monopoly in regulating the sport. This domination extends to player participation and unsanctioned events. The Commission referenced the European Commission’s 2007 White Paper on sport, noting that sports organizations, structured as pyramids, require autonomy to enforce regulations like integrity standards and broadcasting rights, which can limit economic freedom. Abuse of Dominanace Violation of Section 4(2)(a)(i), 4(2)(b)(i) and 4(2)(c) of the Act- Abuse of dominant position. The Informant claimed that The Suburban Table Tennis Association (TSTTA) General Secretary posted a WhatsApp message restricting players, coaches, clubs, and academies from joining non-affiliated organizations, with penalties for non-compliance. Despite receiving a petition and legal notice, TSTTA continued these practices. The Commission upheld the DG’s findings that TSTTA violated Section 4(2)(c). The DG found Clauses 22(d) and 22(e) of the MSTTA Constitution anti-competitive. Clause 22(d) restricts unauthorized tournaments, and Clause 22(e) allows preventing harmful actions. A WhatsApp message advising against participating in an “unofficial” tournament violated Sections 4(2)(c), 4(2)(a)(i), and 4(2)(b)(i) of the Act. The Commission agreed, but excluded Clause 22(e) stating that it is necessary to uphold sports integrity. The CCI found that clauses in TTFI’s MoA are restrictive, unfair, and anti-competitive. They prevent the organization of unauthorized tournaments and prohibit player participation in unaffiliated events. This limits player opportunities, creates barriers for independent organizers, and stifles competition, violating Sections 4(2)(a)(i), 4(2)(b)(i), and 4(2)(c) of the Competition Act. The CCI partially agreed with the argument that TTFI issued a notice to clarify misrepresentation. However, TTFI went beyond clarification, actively discouraging participation and restricting affiliated state associations from organizing the GSL event without prior approval. The CCI concluded that TTFI’s actions violated violate Sections 4(2)(a)(i), 4(2)(b)(i), and 4(2)(c) of the Competition Act. Violation of Section 3(1) read with Section 3(4) of the Act- Anti- competitive agreements. The DG found a vertical relationship between TSTTA and its players, similar to the AICF-chess player relationship in the Hemant Sharma case. CCI in Hemant Sharma case observed that there exists a vertical relationship between AICF and chess players as AICF buys their services for organisation of chess events AICF is the consumer of services of chess players for the organisation of any chess event. This tantamount to a vertical relationship as AICF and the chess players are at different stages of the supply chain. Similarly, The WhatsApp advisory by TTFI created barriers to market entry and hindered competition, violating Section 3(4) of the Competition Act. CCI agreed with the DG’s conclusion about the vertical relationship between TTSTA and players. It found the advisory restrictive, creating entry barriers and foreclosing competition, thus violating Sections 3(4)(c) and 3(4)(d) of the Act. The Order The Commission found that the OPs violated competition law, including anti-competitive agreements and abuse of dominance. While violations were established, the Commission opted against a monetary penalty due to the OPs’ corrective actions, such as withdrawing anti-competitive clauses and issuing clarifications. However, a cease-and-desist order was issued with a stern warning of aggravated penalties for future violations. DIFFRENTIATING BETWEEN REGULATORY AND ECONOMIC ROLES The CCI has frequently examined the distinction between regulatory and economic roles of sports organizations, starting with the Dhanraj Pillai v. HI. It highlighted the variety of relationships in the sports sector, such as federations selling media, sponsorship, and franchise rights. It also emphasized that viewers and sports federations themselves are key consumers, shaping the relevant market. Competition concerns often arise in sports due to the clash between federations’ regulatory and economic functions. While a hierarchical structure is common in sports, overly restrictive rules governing players and events can hinder economic activity. These restrictions, though potentially justifiable for development of integrity, violates competition law if unwarranted. Moreover, the dual role of sports bodies as both regulators and organizers can create conflicts of interest, potentially leading them to suppress competition to safeguard their own

[By Aditya Kashyap & Arnika Dwivedi] The authors are students of Symbiosis Law School, Pune.   Introduction Recently, there has been a pivotal shift toward anti-competitive behavior globally, specifically concerning large technology firms. On November 20, 2024 U.S. Department of Justice (DOJ) proposed various recommendations to address the perceived monopolistic behavior by recommending the overhaul of Google’s structure and business practices including divesting Chrome in a bid to end its monopoly on internet search. In order to guard against the “possible foreclosure” and “the exclusion of future entrants”, the DoJ requires a forced sale of the Chrome browser and a five-year ban from entering the browser market, query-based AI products or advertising technology and prohibition “from owning or acquiring any investment or interest in any search or search text ad rival, search distributor, or rival query-based AI product”. Additionally, pushing Google to allow publishers and creators the facility to block their data from being used to train its artificial intelligence models and requires it to provide rivals with user-side and ad data for 10 years at no cost, on a non-discriminatory basis. The proposals stem from the U.S.A v. Google LLC wherein the court found that Google has unlawfully maintained a monopoly within the general search services and text advertising market. Google has accomplished this by entering into exclusive default distribution agreements with browser developers like Apple that instantly allow it to reply to search queries initiated from the browser that assist Google in obtaining massive amounts of user data and offer tailored advertising to its users resulting in increased advertising revenue which is $ 146 billion in 2021; almost $100 billion more than its rivals. This created a situation where Google faced no competition for the default position and its partners had no alternatives. This dearth of competition along with Google’s strong market position and control over key inputs in the search advertising market, enabled Google to benefit from super-competitive text advertisement costs. Moreover, Google’s Mobile Application Distribution Agreements (MADA) with Android’s Original Equipment Manufacturer (OEMs) grant OEMs access to Google’s proprietary mobile applications without charging any licensing fees. However, Google imposes strict conditions on OEMs in exchange enabling them to pre-install certain Google apps in functional positions on their devices ensuring Google’s dominant and preferential placement on Android smartphones. GAMMA Companies Leading Technological Advancement U.S. has long supported “permissionless innovation”, which permits tech firms to create game-changing technologies like artificial intelligence and the internet with little hindrance. Its position as the forefront of technology has been solidified by this adaptability, which has fueled significant growth, new industries and well-paying jobs. Particularly, GAMMA companies (Google, Amazon, Microsoft, Meta and Apple) are the ones which continue to encourage new technologies encouraging innovation in a variety of industries. While OpenAI and Google’s DeepMind promote AI integration across various applications, Meta’s substantial investment in the metaverse intends to create immersive social, professional, and leisure areas and is investigating blockchain applications such as NFTs, decentralized finance, digital identification solutions and developing AI-driven voice assistants that are essential for the future digital economy. On the other hand, smaller companies face significant barriers to making the kinds of investments that GAMMA companies can make, benefit from economies of scale and access to vast amounts of capital and data that allow them to invest in cutting-edge technologies while distributing the cost over a massive user base which is not possible for smaller companies. Staggering Demonstration of European Union Antagonistically the EU’s antitrust approach is rigorous in its nature and has the potential to suppress innovation as it focuses on general consumer protection issues rather than specific harm-based regulation with imposition of severe penalties and requiring structural reforms. While these actions are intended to safeguard consumers and ensure fair competition, they reflect a negative offshoot of innovation. EU focuses excessively on market dominance, structural interventions and divestitures & overregulation of data & privacy. For instance, the EU’s investigation into Apple’s App Store policies has led to the implementation of costly and resource-draining regulatory changes that can divert resources away from innovation towards compliance. According to the Wall Street Journal, Europe’s sluggish economy, where the Stoxx 600 index and GDP growth have lagged well behind the U.S. as of 2023, is proof that exorbitant supervision has rarely promoted progress.  Metrics like patent filings, startup rates, and unicorn businesses show how Europe’s share of global innovation output has decreased from 25% 15 years ago to 18% today, as noted by Hungarian Minister Balazs Hanko. Europe’s AI policies are criticized for having dystopian influences. The 2022 EU funding delay for 139 companies due to regulatory disputes is an example of how bureaucratic delays further reduce competitiveness. Regrettably, different understandings of the GDPR hindered Meta’s attempts to train AI models on EU public data, denying European users access to the newest technological developments. Adopting the EU’s regulatory framework risks stifling U.S. innovation Given that technology improvement has historically driven American economic growth, adopting the EU’s regulatory approach runs the risk of hurting American innovation. This governmental intrusion in the USA’s ability to compete globally could be harmed by the DOJ’s approach against Google. Rigid enforcement of Google’s data usage and monetization policies would make it more difficult for the US IT sector to contest internationally specifically in nations with laxer regulations. America’s inventive past can be preserved by using an EU model that addresses specific risks rather than hypothetical ones. Public-private partnerships can promote innovation and guarantee consumer protection. In order for the U.S. to establish itself as a leader in the digital economy, trade policies should be conducive to innovation. However, the DoJ’s current stance on Google, which includes contract limits, structural modifications, and data interoperability requirements impedes the competition that propels technological innovation in the US and runs the risk of fragmenting user experience, impeding user convenience and delaying innovation. This could restrict the originality of the market and affect investments in current and future ad technology. Chrome, which for many users is a gateway to the internet and it is a key means of getting Google

[By Aastha Singh & Kumari Bhargavi] The authors are students of Symbiosis Law School, Pune.   INTRODUCTION Independent economic or sectoral regulators such as the Telecom Regulatory Authority of India (TRAI), the Securities and Exchange Board of India (SEBI), and the Reserve Bank of India (RBI) were established to oversee specific critical industries in India after economic reforms ushered in a more competitive market structure and a critical departure from government monopolies.  The Competition Commission of India (CCI) is another example of the same. However, it now faces the additional difficulty, brought about by the ever-changing intricacies of an internationalized economy, of negotiating the “turf wars” that occur when the authority of many sectoral regulators overlaps. India’s ever-changing economic landscape, should be examined using a behavioural economics framework, to understand why do “turf wars” happen and further to highlight the necessity for a unified approach to governance. The lens of behavioural economics to answer an antitrust issue is an innovative and emerging one in nature. The use of behavioural economics to the analysis of interactions between sectoral regulators and possible cognitive biases of antitrust authorities has been under-explored, in contrast to its more conventional focus on consumer preferences and welfare implications. This gap presents a unique opportunity to examine how behavioural insights could address conflicts and coordination by shedding light on a probable solution. This article contends to explore how biases, favouritism in practice, and institutional inertia influence the decision-making process in regulatory conflicts. It advocates for a cohesive regulatory strategy and proposes solutions to harmonize the functions of sectoral regulators and the CCI to better manage competition-related issues in India’s dynamic economic environment, by making use of psychological and organisational factors i.e. behavioural economics that cause the regulatory conflicts. TURF WARS AND THE REGULATORY OVERLAPS In India, sectoral laws like the Telecom Regulatory Authority of India Act, the Petroleum and Natural Gas Regulatory Board Act, and the Electricity Act mandate regulators to promote competition but they tend to blur lines between ex-ante regulation and ex-post competition evaluation. This overlap leads to legislative or jurisdictional disputes with the CCI. While the principle of “leges posteriores priores contrarias abrogant” suggests that newer, sector-specific statutes should override older competition laws, the Competition Act’s Section 60 provides for a “non-obstante” clause, giving it precedence, however as per Section 62, the Competition Act and other statues should be harmoniously construed. The CCI has asserted its jurisdiction over all economic aspects, even in cases where sectoral laws might seem to take precedence. Subsequently, Section 21, and Section 21A of the Act, which include an arrangement for discussions between the CCI and other sectoral regulators, aim to partially resolve this issue. Consultations under these provisions are not, however, required or legally obligatory. One of the primary goals of both the competition agencies and other sectoral regulators is economic regulation which is inclusive of controlling market monopoly and protection consumer interests, however jurisdictional conflicts become problematic in the first place because, when two bodies spend time, effort, and resources on the same disagreement, the biggest impact is duplication. Second, CCI penalties can be far higher than regulator penalties, making it unclear for potential investors. Existing gamers can benefit from lack of clarity by forum shopping. Thus, CCI and sector-specific regulator jurisdiction must be clarified. The turf war pertaining to jurisdictional issues was first observed in the case of Star India v. Sea T.V. Network, wherein the apex court held that despite the fact that the case concerns “monopoly and restrictive trade” the MRTP Commission (now CCI) does not have jurisdiction that violates the TRAI Act. In the case of CCI v. Bharti Airtel Ltd., the Supreme Court resolved the long-running competition for dominance between the cross-regulator, CCI, and the sector-specific regulator, TRAI. The court said that the CCI is not a sector-based organisation; rather, its jurisdiction extends beyond sectoral boundaries to encompass all industries. However, a different stance taken by the Delhi High Court held in Telefonaktiebolaget LM Ericsson v. CCI that the Competition Act is an addition to all other Acts and does not supersede them. The Delhi High Court did not uphold the Ericsson ruling in Monsanto Holdings Pvt. Ltd. v. CCI, holding that the CCI has jurisdiction over cases involving the infringement of patent rights. Therefore, the CCI will evaluate how the rights are exercised or behaved, not the content of those rights, which is the purview of the expert body. BEHAVIOURAL ECONOMICS AND THE REGULATORY DECISION-MAKING PROCESS Behavioural Economics is a branch of economics that underpins neoclassical economics with insights from psychology, and in turn, contributes to behavioural sciences by its economics perspective and the abundant experimental practice it has developed. It explores how cognitive biases emerging from heuristics—mental and emotional shortcuts to form opinions, often influence regulatory decision-making, especially in scenarios where sectoral regulators have repeated interactions with incumbent players. This repeated engagement can lead to the development of implicit preferences or institutional inertia, which may manifest as decisions that disproportionately favour established entities. Such biases can hinder the objectives of fostering competition and innovation, thereby conflicting with the broader mandate of competition authorities like the CCI. In the telecom sector, a potential example, TRAI could uphold incumbents’ high prices as essential for financial stability, despite data indicating that these practices impede competition, demonstrating confirmation bias in regulatory conflicts. But CCI, which is supposed to make sure the market is fair, could see the same tariffs as anti-competitive measures used to keep new competitors out. As seen in cases like, this disagreement arises because different regulators are looking for evidence that backs up their own agendas. Reliance Jio and the Incumbent Operators, highlights the need for greater coordination between sector-specific and competition regulators. Favouritism in Practice: Decisions made by TRAI have often been seen as biased in favour of long-standing telecom companies, which has led to criticism of the agency. Regulating mechanisms are frequently skewed in favour of these incumbents because of their vast networks and established relationships. Disparate license terms,

[By Soujanya Boxy] The author is a student of National Law University, Odisha.   Introduction   There is a booming interest among tech giants worldwide to fuel their technological growth with the adoption of AI. In their drive to lead in the AI race, tech giants are pouring billions into AI start-ups, hiring their key employees and acquiring their valuable assets and expertise. However, global competition regulators’ participation in market studies and ongoing investigations into various AI mergers demonstrate their determination to tackle competition issues arising from the AI space.   In its recent ruling, the United Kingdom (UK)’s principal competition regulator, the Competition and Markets Authority (CMA) approved the Microsoft-Inflection AI merger, observing no realistic prospect of a substantial lessening of competition (SLC) as a result of horizontal unilateral effects. The ruling gathered newsworthy attention because it will likely have global implications for the AI market and market players seeking mergers with tech giants. Just a few days later, the European Commission (EC) too decided to terminate its investigation into this merger, citing insufficient jurisdictional scope.  The article analyses the CMA ruling, which has implications for competition in the AI landscape. This ruling could potentially encourage more diverse and collaborative AI development, boosting innovation.  Deep Dive into Tech Titans’ Quasi Mergers with AI Firms  Quasi-mergers are trending among merger arrangement options in the technology sector due to their unique characteristics and benefits. These kinds of mergers represent the middle ground between direct competition and takeovers. The key benefit is that the firms can join forces, without sacrificing independence. As per The Economist, these forms of partnerships prove valuable in the face of higher trade barriers, regulatory concerns, and high interest rates.   In the recent past, tech giants, notably Amazon, Microsoft and Google have been most engaged with quasi-acquisitions of some foundational model firms, like Adept, Inflection AI and Character AI. Some other AI firms being acquired by Microsoft, Google, Amazon, and Nvidia, include Mistral AI, DeepMind, Anthropic, Hugging Face.  The quest among the powerful seven- Apple, Alphabet, Amazon, Nvidia, Microsoft, Meta and Tesla to be at the forefront of AI development, is likely to spur technology dealmaking. Nvidia is a major player in the AI chip market, with its investments in five AI-related firms, as it disclosed in a regulatory filing early this year. One noteworthy investment was a US$675 million deal in Figure AI, an AI startup, which included Microsoft, making it the largest AI fundraising round of  Q1. There has been a dramatic increase in spending on AI by tech giants, totalling $160 billion, in the first half of this year, highlighting the growing fervour among firms to strengthen their AI capacities. Besides external investments, these firms spend heavily on their own AI R&D. For instance: Microsoft’s $13 billion investment in OpenAI.  The current AI landscape provides competitive advantages to tech giants. It equally poses exit challenges for venture capitalists (VCs), making it difficult for them to realise returns on their investments. Tech giants have more than financial backing to offer like cloud credits business networks, and other resources that VCs may be unable to replicate. This reduced the pressure on AI startups to go public.   Considering the tech giants’ perspective, it’s pivotal to examine the reasons behind their large-scale AI spendings and the anticipated returns. Tech giant CEOs expressed that despite capital expenditure and uncertainty around returns, they strongly preferred overbuilding their AI capacities than risking underbuilding. According to them, AI demand is outpacing supply. I/O Fund further emphasised the primary risk of being not “early enough” to capitalise on AI trends. Another important reason is the effectiveness of quasi-acquisitions as an alternative to in-house innovation, which involves the risk of failure and first-mover challenges.   A Global Footprint of Competition in AI   Competition regulators in the United States (US) and the European Union (EU) have been actively engaging in investigations, workshops and other initiatives to determine potential competition risks across the AI ecosystem. The US, UK and EU competition enforcers are concerned about competition risks posed by AI. In particular, they noted the concentration of AI models, heavy reliance on already concentrated markets, such as cloud computing, and the control of key inputs by a handful of firms. They are wary of AI partnerships, as these might be used by large incumbents to entrench market power.  The Department of Justice (DOJ)’s Jonathan Kanter, highlighted concerns that acqui-hiring could enable tech giants to stifle competition by absorbing the expertise of smaller firms, without acquiring them outright. Furthermore, the DOJ and FTC have divided the regulatory responsibilities for AI regulation. The DOJ will oversee the conduct of a large chip manufacturer, and the FTC will investigate into anticompetitive conduct of major software firms.   The EC and national competition authorities in the EU have launched investigations into virtual worlds and generative AI. Their active participation in the regulatory drive is evidenced by the conclusion of a workshop, studies, and reports published to analyse competition concerns arising from the emerging AI market. The EC’s policy brief, ‘Competition in Generative AI and Virtual Worlds’, specified critical bottlenecks including data limitation, talent scarcity and hardware constraints. Other barriers are high switching costs, market concentration, facilitated by established ecosystems, network effects and economies of scale of tech giants.  Given the profound impact of AI on the competitive landscape for firms, it requires careful evaluation of market competitiveness to understand regulatory concerns. The Forbes’ sixth annual AI 50 identified the most promising privately-held AI firms. Data showed the AI market is highly competitive, having numerous firms developing innovative technologies. While OpenAI ($11.3 billion) and Anthropic ($7.7 billion) have gained considerable funding, other players like Character ai ($193 million), Adept ($415 million), and Figure AI ($754 million) are also making significant strides. Lower levels of funding for some firms do not necessarily indicate a competitive disadvantage. This dynamic market is attracting partnerships from firms like IBM and Salesforce, suggesting a strong demand for AI.   Overall, the AI Market is characterised by strong competition, with new entrants (OpenAI, Cohere, Anthropic) competing fiercely

 [By Siddharth Sengupta & Ansruta Debnath] The authors are students of National Law University Odisha. Introduction On February 28, Reliance Industries Limited (“RIL”) and The Walt Disney Company announced that they would be merging their Indian television and internet streaming businesses to create an organization with a valuation of more than $8.5 billion. The two former competitors, who were until recently engaged in a fierce legal dispute over Indian Premier League (“IPL”) rights, have decided to establish a joint venture (“JV”) in order to strengthen RIL’s position in the Indian Media and Entertainment industry and lessen Disney’s presence there, in the face of intense competition.    The plan of a slow, steady exit of Disney from India due to the steady decline it has faced over the last few years is one of the key reasons for this deal taking place.  The loss of streaming rights over IPL matches to Reliance Jio followed by the loss of HBO content to Viacom18, which is also a Reliance subsidiary, did the most damage to its subscriber base. In February 2024, Hotstar in fact reported a decline of 39% in the number of subscribers from the previous fiscal year.  This article attempts to analyze the competition concerns in various relevant markets, that this JV between such close competitors may cause, by analyzing Indian and foreign precedents. The article, naturally, also compares these concerns raised through the authors’ analysis and the relevant markets identified to the CCI’s recent order granting conditional approval to the JV.  Abuse of Dominance in Cable TV and Broadcasting Market The Indian Cable and Broadcasting Market has been valued at USD 13.61 billion in 2023 and is expected to grow by 7.85% through 2029. In this robust industry, Zee Entertainment Enterprises dominates the market followed closely by the Star Network, which is owned by Disney. Disney’s Star India and Viacom 18, which in itself is a lesser player, together have a 750 million plus viewership.  The CCI, in the Zee-Sony Merger approval order, found Disney to have around 35-40% market share (varying) across various types of wholesale supply of TV Channel markets while Viacom had a maximum of 15%. Thus, for some of these markets, like Hindi and Bengali General Entertainment Channels, the JV will have almost 50% market share. In general, the data presented indicates that the JV will hold almost 35-40% of the market with competition from Sony, Zee, Sun TV and other smaller entities, each with a market share of maximum 15% or less. The combined JV, broadcasting more than 120 channels across regional languages and English and Hindi is expected to be a massive entity capable of holding a dominant position in the market.    Thus, the JV will have the ability to abuse its position of dominance with its concentrated market share and hence, power. The market structure is also such that it is not easy for new entrants to establish themselves, thus, such a strong entity is highly likely to create entry barriers.   Oligopoly and Collective Dominance in the OTT Market In 2023, the Indian OTT market achieved a valuation of US$ 3.7 Billion. The revenue of the market is dominated by players such as Amazon Prime Video, Netflix and Hotstar and the same is set to double from US$ 1.8 billion in 2022 to US$ 3.5 billion by 2027.   In this highly lucrative market, there are few key players. JioTV and Hotstar together hold a big portion of the market i.e., almost 43%. Although, Disney’s market share has reduced to an extent since 2022, it is primarily attributed to their loss of rights over HBO Max Original content and IPL broadcasting rights, both of which now reside with Reliance, whose subscriber base has increased exponentially since. In January 2024, nearly 243.5 million users — a 46.5% market share — visited three streaming platforms, Disney’s Hotstar and Reliance’s JioCinema and JioTV.   In the European Commission’s 10th Report on Competition Policy, it was stated that a dominant position would generally be said to exist once a market share to the order of 40% to 45% is reached. This position of dominance is reinforced by Reliance’s economic power and resources. Further, in online platforms, network effects play a big factor in increasing an entity’s power i.e., the value of a platform increases as more users join it. This creates entry barriers in the market, especially when deep discounts (extremely low pricing to pursue growth-over-profit) are offered to increase network effects, which in turn makes it unsustainable for new entities to enter or survive in the market.    Hence, Disney’s Hotstar and Reliance’s JioCinema, when combined, create doubts as to whether Amazon Prime, Netflix and Zee5 will be able to remain competitive enough against the JV. The OTT industry is slowly converting into an oligopoly, with the presence of a few strong market players who have the maximum consumer support. This situation might translate into collective dominance, as substantiated in Gencor v. Commission by the General Court of EU, but is something that the Indian competition statute does not prosecute. This was exhibited in Meru Travel Solutions Pvt. Ltd. v. M/s ANI Technologies Pvt. Ltd. where they found Uber to be enough of a competitor to Ola instead of finding Ola and Uber collectively dominant, or in Sanjeev Rao v. Andhra Pradesh Hire Purchase Association where no abuse of dominance was made out against the Respondent-Association and its 162 members.  Monopoly in the Specific Sports Broadcasting Market The Indian sports industry is the largest in the world vis-a-vis consumers and revenue. The JV involves more than 120 channels and two OTT platforms, within which a big portion of the channels is devoted to sports, necessitating competition analysis in the sports broadcasting market of India. As it stands today, among OTTs, the JV will have exclusive streaming rights over the IPL, ICC Cricket, Wimbledon, Premier League and Pro Kabaddi, which will comprise 80 percent of the total market of sports.  The CCI has observed that cricket is non-substitutable to other

[By Yash Kaushik] The author is a student of National Law University Odisha   Introduction The U.S. District Court of Columbia, vide its order dated August 5, 2024, ruled that the tech giant Google was a monopolist, meaning it illegally cemented its dominance in the area of ‘general search services’ and ‘general search text ads’. Google was allegedly involved in the transgression of Section 2 of the Sherman Antitrust Act, 1890 based on the court’s findings. This provision makes it unlawful for any person to monopolize or attempt to monopolize any part of the trade or commerce among the several states, or with foreign nations.  Google allegedly abused its dominant position to strike exclusive deals by paying billions of dollars to smartphone makers such as Apple and Samsung. In return, these manufacturers did the work of setting Google as the default search engine in their handsets. It was also held that Google being a default search engine operated at such a colossal scale that inherently disincentive other competitors to enter the tech market. This ruling will significantly impact ongoing antitrust cases against Big Tech firms such as Meta, Apple, and Amazon for their alleged involvement in the violation of respective antitrust laws and stifling fair competition.  In India also, numerous complaints have been lodged against Google for allegedly violating the provisions of the Competition Act, of 2002. For instance, an Indian startup named Alliance of Digital India Foundation registered a complaint with the Competition Commission of India (CCI) alleging Google for abusing its dominant position in the online advertising marketplace. The complainant reportedly submitted that Google was involved in the act of self-preferencing its own products over others, a case of an anti-competitive practice prohibited under section 4 of the Competition Act, 2002.   The article deals with how the U.S. ruling against Google assists in dismantling corporate monopolies and fostering fair competition concerning developing economies like India. The author further highlights the need for big tech regulation through a robust antitrust framework that encourages an equitable and just marketplace that harbours free and fair competition for all.  Understanding Corporate Monopoly And its Ramifications A market structure or arrangement dominated by a single seller exercising exclusive control over a commodity with no close substitutes is termed a monopoly. Such an arrangement is marked by limited alternatives of products and inherent restrictions for other competitors to enter the market space. Because of limited or no competition, the producers generally have no incentive to foster the quality of their goods and services, leading to technological stagnation in an economy. Moreover, because of existing obstacles, small and medium sized entities chronically suffer from limited opportunities. This situation results in the accumulation of power in the hands of a few MNCs, which further exacerbates existing economic inequality and leads to unpleasant consequences such as price gouging and deteriorating quality of goods and services.   In such an arrangement, sellers generally charge more for their products to attain high profits by ignoring the market forces of demand and supply. Thus, in the long run, monopolistic competition can deform market dynamics leading to lower innovation and diminished economic growth and creating an unhealthy competition that is detrimental to consumer welfare.  Implications of the U.S. Ruling for Antitrust Enforcement in India The contemporary globalized world runs on the dictates of powerful multinational corporations (MNCs) that have their footprints in almost every corner of the world. The major driving force for the operation of these MNCs is profit maximization. To fill their treasures, they may try to maintain a dominant and exclusive position in the market and prevent other competitors from succeeding. Thus, maintaining an equitable and sustainable competitive marketplace becomes a quintessential task.  The present verdict, though limited to the geographical boundaries of the US, holds great significance for the global tech market as it has paved the way for breaking the monopolies of dominant corporations involved in various anti-competitive practices. The judge ruled that Google’s exclusive distribution deals with corporations such as Apple and Samsung were anti-competitive because they resulted in the majority of users in the U.S. getting Google as the default search engine. This ultimately augmented Google’s dominant position and gave it an undue advantage over its counterparts because most of the users generally stick to default search engines.   In developing nations like India, which are already struggling with persistent income inequality, the dominance maintained by these giant firms worsens the situation. These entities exercise unprecedented concentration of power and defeat the purpose of maintaining fair competition, consumer choice and data privacy. The present ruling against Google reflects a valuable opportunity to rein in its uncontrolled dominance exercised throughout the world. Eliminating such practices is advantageous for both the consumers as well as the competitors. It can assist consumers in finding alternative search engines as opposed to getting a default one on their devices. It will further incentivize tech corporations such as Google to build a better product that is more user-friendly and focused on safeguarding consumer’s data and privacy.  The Draft Digital Competition Bill, 2024 released by the Ministry of Corporate Affairs, is a much-needed legislation in the direction of preventing anti-competitive tactics. Under this bill, the CCI, after determining a corporation’s digital dominance can designate them as Systemically Significant Digital Enterprises (SSDEs). These enterprises are strictly required to function fairly and transparently. To maintain a just and sustainable competition, these SSDEs are even prohibited from favouring their goods and services and sharing users’ personal information without their consent.   A Call for Big Tech Regulation The phenomenon of the rise in consumption of digital goods and services is accompanied by the growing dominance of big tech corporations such as Microsoft, Apple, and Meta among others. Over the decade, these corporations have become the most valuable entities in the world. They exercise exclusive control over the digital services like e-commerce, social media and online search market and provide no space for small and medium competitors to enter this lucrative market. These big tech firms can

[By Nandita Karan Yadav] The author is a student of National Law Institute University, Bhopal.   Introduction  The rise of Big Tech giants has positively transformed the digital landscape. However, this revolution comes with a darker side: concerns about market dominance and privacy violations that the existing ex-post laws do not address effectively. In response, several countries have already implemented digital sector regulations. Now, India is in the midst of discussions with stakeholders about its own Digital Competition Bill. This paper intends to analyse the Digital Competition Bill and the author through this blog compares the legislation with international laws on the subject and substantiates that the current Digital Competition Bill is inadequate for India in its current state.   Big Tech and Need for Regulation   “Big Tech” refers to major United States-based technological corporations such as Google, Meta, Apple, Microsoft, and Amazon. These behemoths offer a plethora of services and boast an immense consumer base. Their substantial market capitalisation and influence enable them to leverage their dominant positions to the detriment of competitors and the privacy rights of their consumers. Google was fined €4.34 billion for imposing three types of illegal restrictions on Android, cementing its search engine’s dominance and denying rivals the opportunity to innovate and compete on the merits. Through aggressive profit-maximising strategies, they undermine the democratic rights afforded to both competitors and consumers.  The digital markets present unique challenges, primarily because these Big Tech companies utilise data as a resource, contrasting with the reliance on capital in other sectors. In traditional sectors, success often depends on access to and capital investment—like machinery, infrastructure, or financial resources.  A company’s success in the tech sector hinges on the volume of data it amasses. This data is exploited to expand their consumer base by tailoring services to consumer preferences and through targeted advertising. An increased consumer base leads to a “network effect,” where the utility derived by each consumer escalates as the user base grows. Moreover, these corporations benefit from economies of scale.  The digital market frequently encounters the “tipping effect,” wherein market power becomes concentrated in the hands of one or two corporations rather than being distributed evenly among multiple competitors. Dominant entities often engage in anti-competitive practices such as self-preferencing, tying and bundling, third-party steering, etc.  The infamous Google Shopping case exemplifies how these tech giants fail to provide an equitable platform for all businesses on their search engines. When market power is concentrated, consumers face higher prices, fewer choices, stifled innovation, and potential privacy risks due to reduced competition. In response, various jurisdictions, including the European Union, the UK, Japan, and Germany, have initiated sector-specific regulation of the tech industry.  How international jurisdictions addressed these problems  The existing ex-post laws have proven inadequate in addressing the concerns of the rapidly evolving tech sector. Remedies applied after the abuse of dominance fail to effectively undo the anti-competitive conduct. The ex-post procedure is also time-consuming; by the time the relevant authority rules against a Big Tech entity, irreversible market damage may have already occurred. Therefore, it became imperative to ensure compliance at every step in digital markets, not merely reactively when anti-competitive conduct has already transpired. It is argued that ex ante enforcement, which involves proactive regulation, is likely to complement ex-post enforcement. The report also argues that together, these approaches can secure the digital markets comprehensively.  The European Union, a pioneer in the antitrust regime, was the first jurisdiction to introduce digital market regulations through the Digital Markets Act, which came into force in 2022. This Act identifies core platform services that will be regulated and designates large tech entities as ‘Gatekeepers.’ It imposes both mandatory and prohibitory obligations on these entities. A company qualifies as a ‘Gatekeeper’ based on quantitative and qualitative thresholds. The European Commission holds the enforcement power for this legislation. The Indian Digital Competition Bill is substantially inspired by the EU law.  The UK’s Digital Markets, Competition and Consumers Bill (DMCC) of 2023 is currently awaiting approval in the UK parliament. Similar to the EU, the UK law proposes to grant corporate entities a ‘Strategic Market Status’ by the Competition and Markets Authority (CMA), and it also enforces prohibitory and mandatory obligations. The US has proposed twelve bills that are pending approval which substantially adopt a similar stance. Unlike the aforementioned jurisdictions, Japan adopts a digital platform-specific approach. It targets certain dominant entities and imposes compliance obligations regardless of the services they provide. Recently, Japan approved a law requiring Apple and Google to open their app stores to smaller app developers, aiming to promote innovation. Germany has opted for a similar approach, without specifying which services will be covered under the law which has been into force since 2023.  India’s Digital Competition Bill   India’s Digital Competition Bill was introduced in March 2024 by Competition Commission of India (CCI). A report on the bill by the Committee for Digital Competition Law (CDCL) was also propounded. The bill is a spitting image of the DMA applicable in the EU jurisdictions. The bill is based on the underlying principles of fairness, transparency and contestability advocated by the CCI. The bill, when applicable, will only take under its purview nine core services identified by the CDCL report which are online search engines, online social networking services, video-sharing platform services, interpersonal communications services, operating systems, web browsers, cloud services, advertising services, and online intermediation services. This approach is in adherence to the service specific approach adopted by EU and Australia as opposed to the platform specific approach. These include online search engines, video sharing platforms, web browsers etc. The Bill identifies Systematically Significant Digital Enterprises (SSDE), and the act will be applicable to these entities specifically. Categorisation of an entity as SSDE depends on the quantitative and qualitative thresholds. If an entity does not qualify quantitative thresholds, CCI can categorise it as SSDE based on qualitative thresholds for three years. The committee also identified ‘Associate Digital Enterprise’ (ADE); entities responsible for provision of core digital services of the