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12.4 The learned Senior Counsel has placed reliance on the judgment in the case of CCI v. SAIL2. In AIDCF v. TRAI3, the (2010) 10 SCC 744 (2021) SCC Online Ker 7162 WP(C) NOs. 29766, 29767 2025:KER:36755 contention of the AIDCF, another MSO, was that the TRAI would not have jurisdiction vis-à-vis marketing agreements. However, that would not mean that the CCI would not have the jurisdiction to investigate sham marketing agreements entered by the SIPL with the KCCL in abuse of the dominant market position, which has the consequence of denial of market access to the ADNPL. The decision in the AIDCF's case is that TRAI does not exercise forbearance over marketing agreements, as marketing agreements would not fall within TRAI's regulatory regime, and the regulatory regime of TRAI is limited to interconnection. The issue before the CCI is whether the petitioner/SIPL is indulging in unfair/discriminatory conduct by entering into sham marketing agreements with KCCL in abuse of its dominant position in violation of Section 4 of the Competition Act.

12.5 The learned Senior Counsel has submitted that the judgment of the Supreme Court in Bharti Airtel (supra) is not WP(C) NOs. 29766, 29767 2025:KER:36755 applicable to the facts of the present case. TRAI may have primary jurisdiction when the dispute relates to a jurisdictional domain of the TRAI's regulatory regime. However, in the present case, the matter relates to the marketing agreements/arrangements which are outside the jurisdictional regime of the TRAI. Therefore, the TRAI cannot decide the issue involved in the present case, inasmuch as there is no jurisdictional issue pertaining to the interconnection involved in the present case. There is no question of sequential jurisdiction or overlap of jurisdiction between the CCI and the TRAI. Further, it would be open to the petitioner to raise the question of the jurisdiction of the CCI and whether the CCI is competent to hear and decide on its own jurisdiction. Reliance is placed on the judgment in the case of Aamir Khan Productions India Private Limited v. Union of India4. Competition Commission of India's:

iii) TRAI/TDSAT was already seized of the matter and held the jurisdiction to settle the dispute raised by Reliance Jio.

13.5 The Supreme Court did not oust the CCI's jurisdiction to WP(C) NOs. 29766, 29767 2025:KER:36755 examine transactions from a Competition Law perspective. However, on the basis of the above three factual aspects, it was held that the matter may need to be examined by the TRAI first since it involved interpreting certain areas that would lie within the TRAI's exclusive domain, making them jurisdictional issues and for which the TRAI alone is competent to examine. 13.6 In the present case, the TRAI would not have to resolve any question first. Even if it is held by the TRAI that the pricing mechanism adopted by the SIPL would not be violative of any licensing condition prescribed by the TRAI, it would not render the proceedings initiated by the CCI invalid. The CCI would retain its jurisdiction to examine the matter under Section 4, read with Section 19(4) of the Act, to determine whether there was an abuse of dominance by the SIPL in the relevant market. The CCI is not required to examine the regulatory framework of the TRAI or interpret any licensing conditions. There are no jurisdictional WP(C) NOs. 29766, 29767 2025:KER:36755 requirements that need to be ironed out by the TRAI first.

"13. In relation to the above mentioned contentions of WhatsApp, the Commission is of the view that the judgments relied by WhatsApp have no relevance to the issues arising in the present proceedings and its plea is misplaced and erroneous. The judgment of the Hon'ble Supreme Court in Bharti Airtel Case has no application to the facts of the present case as the thrust of the said decision was to maintain 'comity' between the sectoral regulator (i.e. TRAI, in the said case) and the market regulator (i.e. the CCI). WhatsApp has failed to point out any proceedings on the subject matter which a sectoral regulator is seized of. Needless to add, the Commission is examining the policy update from the perspective of competition lens in ascertaining as to whether such policy updates have any competition concerns which are in violation of the provisions of Section 4 of the Act. Further, the Commission is of the considered view that in a data driven ecosystem, the competition law needs to examine whether the excessive data collection and the extent to which such collected data is subsequently put to use or otherwise shared, have anti- competitive implications, which require anti-trust scrutiny. The reliance of WhatsApp on Vinod Kumar Gupta and other cases is also misplaced as the Commission has only observed that breach of the Information Technology Act does not fall within its purview. However, in digital markets, unreasonable data collection and sharing thereof, may grant competitive advantage to the dominant players and may result in exploitative as well as exclusionary effects, which is a subject matter of examination under competition law. It is trite to mention that the provisions of the Act are in addition to and not in derogation of the provisions of any other law, as declared under Section 62 of the Act."