CCI Approves the Acquisition of 21 Century Fox by The Walt Disney Company

On August 10, 2018, CCI approved the acquisition of Twenty-First Century Fox (‘21CF’) by The Walt Disney Company (‘TWDC’) (TWDC and 21CF are collectively referred to as ‘Parties’).[1] Notably, 21CF’s news, sports, broadcast businesses, including inter alia Fox News Channel, Fox Business Network, and certain other assets (‘Separated Assets’) were to remain with 21CF pursuant to the Proposed Combination.

For the purposes of its assessment, CCI identified the following overlapping product segments between TWDC and 21CF (‘Identified Overlaps’) in India and analysed the competitive scenario in each overlapping segment as follows and concluded that the Proposed Combination would not lead to AAEC in any of the Identified Overlaps.

i.       Production and supply of films to third-party distributors and exhibitors for theatrical release in India: CCI observed that this segment could be further sub-segmented on linguistic basis, however, it did not go to the extent of defining the exact relevant market. CCI observed that the combined market share of the Parties (in terms of gross box office receipt) had reduced from 60% – 65% in 2016 to 30% – 35% in 2017 for English films, and to 15% – 20% in 2017 from 35% – 40% in 2016 for Bollywood films. In this regard CCI observed the hit-driven nature of this segment. It also considered Parties’ market share in terms of top 5 grossing films across 15 years, which was 20% – 25%, and at par with Warner Bros, a significant player in this market. CCI also noted that Parties had insignificant market share at 0-5% for 2017 in the sub-segment of regional films. Further, the Parties also faced significant competitive constraints from existing large competitors.

ii.      Business of licensing of audio-visual content in India: CCI observed that Parties’ activities overlapped in the sub-segments of film-content rights, sports-content rights and non-film and non-sports rights, although, it did not define the exact relevant market. CCI observed that the Parties did not have significant business activities in these sub-segments, and TWDC at the moment was not active in the sub-segment of sports-content rights.

iii.     Business of operation and wholesale supply of TV channels: CCI observed that Parties’ activities overlapped in the sub-segments of films, kids, infotainment & Lifestyle, sports, Hindi general entertainment channels (‘GEC’), English GEC and Regional GEC, and music. CCI noted that in the sub-segments of films, infotainment & lifestyle, kids, Hindi GEC, and Regional GEC, the combined market share of the Parties was in the range of 25% – 35% and, further, in the sub-segments of music, English GEC, the market share was even lower and in the range of 0-5% and 15% – 20%, respectively.  It was further observed by the CCI, that in all these markets, the Parties would continue to face substantial competitive constraints from significant players.

iv.      Retail supply of Audio Visual Content in India: While assessing this segment, CCI observed that the Parties’ competed in the segment of supply of audio-visual content in India through over-the-top applications (‘OTT’) with a combined market share of 30% – 35%, but that TWDC only had a negligible presence. Further, CCI noted that the concerned segment was marked by the presence of numerous players such as Amazon Prime, Netflix etc. and therefore the Parties would remain competitively constrained.

v.       Supply of advertising airtime on TV channels in India: CCI observed that advertisements were not genre specific and that targets of advertisements (viewers) were largely genre agnostic. CCI observed that 21CF had a market share of 20% – 25% but TWDC had a much smaller share and, therefore, the Proposed Combination would have resulted in only an insignificant increment in market shares.

vi.      Supply of consumer products: CCI observed that the Parties were active in ‘character merchandising’ only by licensing of intellectual property (‘IP’), and that the combined market share of the Parties was insignificant in the segment.

vii.     Licensing of Music rights in India: CCI observed that both TWDC and 21CF had only insignificant market share in this segment.

viii.    Licensing of Publication Rights in India: CCI observed that both TWDC and 21CF license their intellectual property to third-party publishers who published non-academic books and magazines. It was observed that the Parties had insignificant market share in this segment.

Interactive Media in India: CCI observed that interactive media is a means of actively engaging with the customers by providing an interactive form of entertainment, which includes games, digital media etc. and the Parties were active in this segment through licensing of IP. However, the market share of the Parties was insignificant in this segment.

[1] Combination Regulations C-2018/07/582

Published In:Inter Alia Special Edition Competition Law Third Quarter 2018 [ English
Date: September 30, 2018