CCI Dismisses Allegations of Abuse of Dominance against M/s Indus Towers by BSNL

On November 9, 2018, CCI dismissed information filed by Bharat Sanchar Nigam Limited (‘BSNL’) against M/s Indus Towers Limited (‘Indus’), alleging violation of Section 4(2)(a)(ii) and Section 4(2)(e) of the Act.[1] Indus and BSNL had entered into an Infrastructure Sharing Agreement (‘ISA’) on September 9, 2008 for provision of existing and viable telecom tower sites (‘Sites’) to BSNL on mutually agreed terms under the ISA. BSNL had alleged that Indus was abusing its dominant position in the infrastructure provider market by refusing to provide existing viable Sites to BSNL as required under the ISA.

CCI determined the relevant market as the ‘market for provision of passive infrastructure services to telecom service providers in Kolkata Circle’ since: (i) the market for active infrastructure provider is not substitutable with passive infrastructure provider; and (ii) the demand for passive infrastructure varied from circle to circle.

The CCI observed that Indus’s market share during 2016-2018 was 60.06 – 63.80%. Considering Indus’s market share, the CCI held that Indus was dominant in the relevant market for provision of passive infrastructure services to telecom service providers in Kolkata Circle. However, CCI dismissed the information filed by BSNL on the following grounds:

(i)      there were unresolved contractual issues between Indus and BSNL which were germane for provision of the services;
(ii)     BSNL had failed to show any instance where Indus had not agreed to provide the Sites;
(iii)   it was BSNL who had not provided the required information in the prescribed format (and it was aware of the format that had to be used for placing a valid Site request); and
(iv)    Indus had fulfilled its obligations under the agreed terms of the ISA.

[1] Case No. 10 of 2018.

Published In:Inter Alia Special Edition Competition Law November 2018 [ English
Date: November 30, 2018