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With the boundaries between telecoms, retail and other sectors becoming less well defined, Kalpana Tyagi calls for a new approach to tackling competition law challenges

Telecommunications companies that traditionally offered only fixed line telephone services now offer multiple services. The convergence of telecommunications with retail and other traditional brick-and-mortar industries presents unprecedented opportunities as well as challenges for Indian competition law and policy makers.

In view of the converged environment, the criteria used for assessing market power merit re-examination. If market power continues to be defined according to whether a firm behaves independently of its competitors and consumers, then how does one account for the need for companies to constantly innovate so as to remain viable in the market? In addition, as the dynamics of the market prompt greater innovation in online services, and with new services often being provided free of charge, how relevant is the ability to set prices independent of other players to assess market power? Similarly, how are free services to be evaluated?

Kalpanab Tyagi
Kalpanab Tyagi

The multiplicity of services offered typically leads to three issues in the context of abuse of dominance cases: the gate-keeper issue, the source issue and the path issue.

The gate-keeper issue arises when a company has technology or know-how that allows it to permit or deny market access to other companies. For example, if a company has control over certain standard essential patents, then its refusal to deal with competitors gives rise to exclusionary conduct. In its November 2013 complaint against Samsung before the Competition Commission of India (CCI), Micromax alleged that Samsung abused its dominant position by refusing to license its standard essential patents on fair, reasonable and non-discriminatory terms.

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Kalpana Tyagi, a competition and intellectual property rights law scholar at the Max Planck Institute in Germany, has worked in India, the US and the EU in the fields of competition, intellectual property rights and corporate law.

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