Google Disputes CCI Order At NCLAT, Calls It 'Speculative'
In the Android ecosystem, each app is accessible across all Android devices, said Google, emphasising the efficiencies of its OS.
After the Supreme Court declined to provide it any interim relief, global tech giant Google LLC is before the National Company Law Appellate Tribunal defending its commercial practices in the Android market in India.
Its counsel Arun Kathpalia has submitted that in its order, the Competition Commission of India has failed to show that Google's agreements with smartphone manufacturers resulted in anti-competitive effects in India. "The entire order of the commission has been founded on speculation of scenarios that might happen," he said.
In the first two days of the hearings before the NCLAT, Kathpalia has broadly made three key arguments:
That Google’s operating system i.e. Android has contributed hugely to the mobile ecosystem and has led to a thriving competition market.
CCI doesn't have a compelling case.
The Mobile Application Distribution Agreement it enters into with Android mobile manufacturers is non-exclusive.
Android Vs Other OS Developers
Google’s operating system i.e. Android, has contributed hugely to the mobile ecosystem and has led to thriving competition, Kathpalia said.
In 2008, when Google was trying to enter the mobile market, three models were at play among market players.
Highlighting their cons, Kathpalia said that Windows used to license its mobile operating system to several original equipment manufacturers but the license was not free and a lot of restrictions were placed on the latter, unlike Google.
Another dominant player, Blackberry, operated on a completely closed system. Only its own applications were functional on the device.
Comparing Google’s Android mobile ecosystem with Symbian, he said that every manufacturer which was using Symbian had their own different version of it. An app developer had to write different versions of its app to make it compatible with different versions of Symbian.
In the Android ecosystem, each app is accessible across all Android devices. Today, there are more than 3.5 million apps on the Play Store alone.Google's Counsel
Android allows competition within its own ecosystem, he argued.
CCI's Findings
The Director General, which is the investigative arm of the CCI, had asked leading questions to the OEMs regarding pre-installation of apps. Even after this, the manufacturers responded positively to the questions. It is Google’s argument that this pointed towards a bias on the DG’s part.
The Android mobile ecosystem has led to a huge increase in the number of app developers, lowering of device prices and has allowed people at large to access the internet, Kathpalia said.
In the face of such huge benefits, there should have been something compelling to go against it.Google's Counsel
This is supported by the fact that there was no OEM complaint or any app developer complaint made to the regulator, Kathpalia argued.
Google's Agreements
Arguing extensively on Mobile Application Distribution Agreement, Kathpalia said that it is non-exclusive and does not preclude any OEM from pre-installing other apps on the device. Even competitor apps can be installed without any prejudice to the agreement. Under this agreement, all the apps by Google are licensed for free to the manufacturers, he submitted.
The OEMs are under no obligation to install any apps at all, but if they want to, all Google asks for is to install the full bundle of nine apps, Play Store and the Google search widget.
Google is not making apps that people don’t want. Only the best apps are being developed for enhancing the user experience.Google's Counsel
It was contended that MADA requirements are minimal and that all the apps under it are included in one box on the screen.
"To come to a finding that there is an imposition of applications under MADA, then that imposition must hold no reasonable value for the party on whom the condition is imposed. The OEMs are getting something valuable in the form of these apps. It cannot be said that there is an imposition," Kathpalia said.
He also contended that the Anti-Fragmentation Agreement ensures that all the modified versions of the Android OS remain compatible with each other, so that a baseline standard is set. If an app meets these minimum requirements, then it is compatible to run across the board, he highlighted.
Under the AFA, smartphone manufacturers are prohibited from developing devices based on Android Forks.
Kathpalia would continue arguing for Google in the coming days, post which the CCI will begin defending its October 2022 order, which had found the tech major guilty of abusing its dominant position in the Android mobile ecosystem.
The NCLAT will also determine whether interveners, namely EPIC Games, OS Labs, Alliance of Digital India Foundation, and MapmyIndia, who are supporting the regulator's view should be heard.
On the other side, are five startups—Krishify, Chqbook, ProEves, Drivezy, and Doubtnut—who are supporting Google's anti-fragmentation agreement with smartphone manufacturers, Businessline has reported.
