Background Facts:

Bol Media Network, Labbaik (Pvt.) Ltd and Bol enterprises (Pvt.) Ltd. filed a complaint against Pakistan Broadcaster association (PBA), Broadcaster Advertiser Council (PAC) and Medialogic (Pvt.) Ltd. alleging that the Respondents have restricted competition in the market in violation of section 4 of the Competition Act by, inter alia, not granting its ratings services to the complainants through their conduct and arrangement. The arrangements were purportedly camouflaged in 3 agreements, inter alia, restricting provision of services to members of the PBA, excluding members of BAC for broadcasters who were not members of the PBA and necessary approval of BAC on ratings that are granted.

In the interim the August Supreme Court passed an order in CR.O.P 108/2018 in Human Rights Case No. 34069 of 2018 directing the Pakistan Electronic Media Regulatory Authority (PEMRA) to, inter alia, take the following steps or ensure:

i. Register rating companies in accordance with the terms and conditions of draft regulations;

ii. The rating companies shall not provide data or information to PBA, advertising agencies, media outlets or any other third party; and

iii. Restrict the designated representative of PBA on PEMRA’s board from participating where incidents relating to viewership rating or taring companies are to be discussed, deliberated or decided.

Moreover, the August Supreme Court prohibited the PBA from entering into any agreement or arrangement with any other company or entity that may have the effect of cartelization, creation of monopoly, anti-competitive behavior, exclusion of any competitor other otherwise affecting free fair and open competition in the television audience measurement market./p>

The matter before the August Supreme Court was disposed with the consent of the stakeholders requiring, inter alia, Bol Media Network to apply for subscription of PEMRA, and the other rating companies to follow the regulations and terms of their licenses.

In its analysis, the Commission dealt with two primary issues, firstly whether the agreements/arrangements in question violate section 4 of the Act, and secondly whether the Commission has jurisdiction to take cognizance of the matter following the order passed by the August Supreme Court.

In relation to the first issue, the Commission held that the relevant market was the provision of Television Audience Measurement (TAM) data and ratings to TV channels across Pakistan. In addition to individually analyzing the three agreements, the Commission also, inter alia, noted that agreement 1 excluded non-PBA members from receiving ratings from Medialogic and also threatened monetary consequences if such ratings were provided, similarly under agreement 2 non-PBA members were excluded from being members of BAC and lastly under agreement 3 Medialogic was prohibited from providing services to non-PBA or non-BAC members creating barriers to entry for non-members and new entrants.

On the second issue, the Commission noted that the August Supreme Court had looked at a distinct aspect of the matter whereas the current proceedings before the Commission were inquiring the violation of competition law.

Order:

Upon hearing the case, the Commission find the agreement between the respondents to be in violation of Section 4(2)(a), 4(2)(b) and 4(2)(f) of the Act. However, the Commission decided not to impose any penalties on the respondents on the fact that the grievance of the Complainant have already been resolved by the supreme Court through a consent decree and the law regulating TAM data and ratings has been changed which has changed the landscape of the market. Nevertheless, the Commission issued prohibition to the Respondents under Section 31(b) of the Act warning them from engaging in such activities in the future. The Respondents were also directed to file commitments in this regard. Lastly, PBA was also directed to confirm the status of BAC.