Analyzing China’s Guiding Case No. 79 Under Section 1 of Sherman Act - A Per Se Tying Violation or Not?

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In China’s Guiding Case No. 79, Wu Xiaoqin v. Shaanxi BC & TV Network (Group) Co., Ltd., the Supreme People’s Court of China held that Defendant BC & TV Network engaged in tie-in sales, tying basic TV programs to paid TV programs, and thus violated article 17.1.5 of China’s Anti-Monopoly Law. This paper analyzes this case under Section 1 of the U.S. Sherman Act and shows how a U.S. court might analyze it differently. After analyzing each element required for a tying agreement, this paper concludes that a U.S. court is unlikely to hold that the alleged tying arrangement is a per se violation of the federal antitrust law.