Phone Manufacturers Say Users Want Our Apps, Google Tells NCLAT

Google LLC. told the National Company Law Appellate Tribunal on Friday that it needed to show that there is a denial of market access to other market players and that being "big" alone is not a ground for alleging abusive conduct.

The search engine company has been found guilty by the CCI of abusing its market dominance in the Android mobile device ecosystem and the online search market. The regulator fined the global tech giant Rs 1,377 crore and ordered it to cease and desist from indulging in anti-competitive behaviour.

While making final arguments before the NCLAT on Friday, senior advocate Arun Kathpalia, appearing on behalf of Google, said that the purpose of the inquiry should have been to show that a dominant player was indulging in unfair market practices and whether this conduct had effects which were anti-competitive. But the competition regulator's entire case was built on how big Google is without going into the analysis of the effects, the counsel said.

The Supreme Court has denied the tech major any relief against the competition regulator's findings.

Alleging that there was lack of inquiry in the commission’s findings, Kathpalia said that the tech giant is being accused of imposing unfair conditions under the Mobile Application Distribution Agreement.

However, no smartphone manufacturer is saying that the pre-installation of apps under this agreement is prejudicial to their interests. Instead, they are saying that the users of devices actually want these apps, he said.

The CCI concluded its arguments earlier this week as well.

Additional Solicitor General of India N Venkatraman said the burden is on Google to show that the reasons given by the regulator do not apply to its business practices. The tech major cannot merely say the reasons are incomplete, and therefore the order is flawed, he said.

He also countered Google's argument on CCI's order, citing findings from the European Commission’s order. Venkatraman questioned that if an anti-competitive effect has been found by the European Commission, then is the CCI supposed to ignore the findings that are directly related to Indian markets as well.

Google is not only dominant, but "super dominant", Venkatraman said. Once an entity becomes dominant, it must do to self-policing because there's a special responsibility to protect competition in the market, he said.

Finally, Venkatraman said, as a principle of law, if there is no negotiation or bargaining power available to a party, it is a serious threat to competition.

Supporting the CCI’s stand on Google’s anti-competitive policies, the NCLAT also heard several intervenors—Epic Games Inc., Indus OS Ltd. and MapmyIndia Ltd.

Arguing for Epic Games, senior advocate Amit Sibal said that the software developer is directly affected by two anti-competitive practices which have been found in the order:

• Google’s conduct of complete exclusion of other app stores from its Play Store. This makes developers dependent on Google Play Store as the primary channel for distribution of apps. This affects their ability to distribute apps through other app stores.

• Severe impediments placed on the downloading of apps from the website of the applications. The restriction is called sideloading. Most people don’t even know that they can download an app through the website and even when they do, there are so many impediments.

Similarly, counsel for Indus OS said the company had developed an indigenous app store which offered access to users in different Indian languages. This app store, senior advocate Rajashekhar Rao said, offers a much more seamless and far more accessible service to Indian app developers.

He said that the impediments on the entry of a different app store into the Android ecosystem, forced it to exit the market in 2017 when it had just entered in 2015. He pointed out that OS Labs now exists solely on the Samsung play store.

Finally, arguing for MapmyIndia, advocate Abir Roy said that the company was ousted from the B2C market following Google’s entry in 2008.

The company had arrangements with the manufacturers prior to Google's entry in the market but was forced out of the market because of its restrictive practices under MADA, Roy said.