Recently, the Department of Treaty and Law (DTL) of the Ministry of Commerce (MOFCOM) forwarded a reply regarding administrative reconsideration from MOFCOM’s Antimonopoly Bureau (AMB) to Dong Zhengwei, a lawyer who applied to DTL for administrative reconsideration of AMB’s failure to enforce the antimonopoly review obligation regarding the restructuring of telecommunications. In the reply, AMB advised DTL not to support Dong Zhengwei’s application, stating that the application lacks sufficient evidence. DTL will issue its opinion shortly.  

The case is deemed to be the first case against the antimonopoly enforcement authorities since the implementation of China’s Antimonopoly Law (AML). The case commenced on August 1, 2008, when Dong Zhengwei submitted an application to MOFCOM, the National Development and Reform Commission (NDRC) and the State Administration of Industry and Commerce (SAIC) requesting that the three antimonopoly enforcement authorities investigate basic monthly telephone charges and the price of basic calls in order to protect the property rights and interests of citizens. In particular, Dong Zhengwei asked that MOFCOM undertake an antitrust review on the ongoing restructuring of telecommunications. On August 21, 2008, AMB decided that the basic monthly telephone charges and the price of basic calls involve both administrative monopoly and price monopoly, which fall under the jurisdiction of NDRC and SAIC. AMB did not make a decision on the request for an antitrust review of the restructuring of telecommunications.  

Dong Zhengwei argued that AMB neither conducted an antitrust review nor provided an appropriate explanation for its decision on the request for an antitrust review. Thus, on October 6, 2008, Dong Zhengwei applied to MOFCOM for administrative reconsideration on AMB’s failure to act on its antimonopoly enforcement duty with respect to the antitrust review on the ongoing restructuring of telecommunications. According to MOFCOM’s Implementation Measures for Administrative Reconsideration (effective as of July 1, 2004), DTL is responsible for handling applications requesting administrative reconsideration. On October 14, 2008, DTL officially accepted Dong Zhengwei’s application and started reviewing AMB’s decision.  

Under China’s Administrative Reconsideration Law, an administrative reconsideration authority (such as MOFCOM) must make a decision on a request for an administrative reconsideration within 60 days from the day it accepts the application. If the case is complex, and an administrative reconsideration authority fails to make a decision within the prescribed time limit, the responsible members of the administrative reconsideration authority may extend the time limit by an additional 30 days, and notify the applicant and the respondent of the application of this extension. According to officials of DTL who are in charge of the case, MOFCOM will very likely make a final decision by December 14, 2008, in order to meet the prescribed time limit. We will track the development of this case closely.