ANALISIS PERTIMBANGAN MAJELIS KOMISI PENGAWAS PERSAINGAN USAHA DALAM MENILAI PRAKTIK DISKRIMINASI DITINJAU DARI ASAS KESEIMBANGAN KEPENTINGAN PADA PERSAINGAN USAHA (STUDI PUTUSAN NOMOR 08/KPPU-I/2020)

This study aims to analyze the considerations of the Commission Panel in assessing alleged discriminatory practices under Article 19 letter d of Law Number 5 of 1999 in Decision No. 08/KPPU-I/2020 and to examine its alignment with the principle of balancing interests in competition law. The research method used is normative juridical with a statutory approach, a conceptual approach, and a case approach. The analysis results show that, from a juridical aspect, although the Commission Panel found discriminatory treatment against Netflix by PT Telkom and Telkomsel, the element "can result in unfair business competition" is considered not fulfilled because Netflix can be accessed through other internet service providers and there are alternative similar services in the market. From a sociological aspect, the Commission Panel considered the competitive market conditions but ignored the fact that the respondents controlled more than eighty percent of the market share. From a philosophical aspect, the consideration leaned more on the assumption of public protection without being supported by evidence of harm. In addition, there is a legal vacuum because there is no regulation regarding Over The Top (OTT). This study concludes that the Commission Panel's considerations do not fully reflect the principle of balancing interests because the complainant's interest in obtaining fair market access is not met, legal certainty for the respondents is actually unclear due to unilateral actions without regulatory mechanisms, and the public as dominant consumers is disadvantaged in terms of access. The author recommends that the KPPU be more meticulous in assessing the real impact of business competition based on empirical facts, and encourages the Government, especially the Ministry of Communication and Informatics, to immediately establish regulations in the form of a Ministerial Regulation on the Governance and Partnership of Over The Top (OTT) Services, including regulations regarding AVOD, TVOD, and SVOD, to provide legal certainty for all parties.