BIBLIOGRAPHY: CUGIA DI SANT’ORSOLA Fabrizio, NOORMOHAMED Rehman and ALVES GUIMÃRAES Denis, Wolters Kluwer Law, International Bar Association Series Vol. 25, 2014, 488 p.

Communications and Competition Law. Key issues in the Telecoms, Media and Technology Sectors, Fabrizio CUGIA DI SANT’ORSOLA, Rehman NOORMOHAMED and Denis ALVES GUIMÃRAES

Fabrizio Cugia Di Sant Orsola, Rehman Noormohamed, Denis Alves Guimãres

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to for review in this section.

The authors of this book of six parts are legal practitioners. Denis Alves Guimãraes is a Partner at Alves Guimarães Política Regulatória in Sao Paulo. Fabrizio Cugia di Sant’Orsola is a Partner at Cugia Cuomo & Associati in Rome. Rehman Noormohamed is a Partner and Head of Technology Media & Communications Law at Michelmores LLP in London.

This book with 31 contributions gathered during Communications and Competitions IBA Committees, which took place in Rio de Janeiro in 2013 and in Prague in 2014, gives a global and comprehensive picture of competition law and communications in several countries. Indeed, the book sheds some light on legislative, regulatory and judicial developments in Brazil, the European Union, China, the U.S., Canada, Chile and Singapore. This contribution will guide practitioners and policy makers to match specific communication matters into competition law framework such as mobile e-commerce, compulsory licensing of standards, cloud computing, search engine optimization, data aggregation & consumer profiling, geolocalization services and Internet advertising to name but a few.

The first part of the book focuses on comparative experiences of convergence, takeovers and mergers in the communications and technology industry. In chapter 1, Yvan Desmedt and Philippe Laconte look at three different issues: the scope of the Commission’s competence to promote cultural diversity and media plurality under EU merger rules, the Commission’s restrictive approach in relation to media plurality in News Corp/BSkyB, and the Commission’s interventionist approach in relation to cultural diversity, as shown in Universal/EMI. In chapter 2, Ilene Knable Gotts summarizes recent U.S. enforcement decisions in communication and entertainment industry transactions (AT&T/T-Mobile, Verizon/SpectrumCo, Deutsche Telekom/MetroPCS and Vivendi/EMI). In chapter 3, Thomas Janssens and Joep Wolfhagen deal with competition and regulatory aspects of convergence, takeovers and mergers in the communications and media industries. They believe that regulatory changes are reflective of consolidation and convergence trends. The recent EU practice may shape the framework for further consolidation and there are limits of mobile consolidation with the U.S. experience. In chapter 4, Ana Paula Martinez and Alexandre Ditzel Faraco underline the lessons that should be learned from the Brazil’s antitrust and regulatory review of TIM/Telefónica. They describe the Telefónica/Telco transaction and the regulatory framework for reviewing transactions in the telecommunications sector in Brazil. They explain why Telefónica’s indirect equity interest in TIM Brasil may be viewed as problematic from a regulatory perspective. They also look at the merger review framework in Brazil. Four lessons should be learned from this case. The first lesson is that behavioral remedies are resource-intensive and will likely be viewed with skepticism as a remedy under Brazil’s new pre-merger review system. The second lesson is that regulatory and antitrust agencies are expected to conduct independent reviews. The third lesson is that minority shareholdings raise substantial antitrust concerns. The fourth lesson is that there is enhanced skepticism towards the role of economics in minority shareholdings cases. In chapter 5, Gesner Oliveira and Wagner Heibel provide an interesting view on changes in the global telecommunication market and its implications in Brazil. In chapter 6, Lorne Salzman looks at the mergers in the Canadian communications sector, which is an increasingly curious situation.

The second part of the book examines new markets and competitive hurdles in the offering of globalized services. In chapter 7, Jeffrey A. Eisenach and Ilene Knable Gotts search competition doctrine for information technology markets in recent antitrust developments in the online sector. They highlight the IT challenge to traditional antitrust doctrine while looking at the dynamism, modularity and demand-side effects of IT Trifecta. Moreover, they analyze the horizontal and vertical theories in transactions involving content providers, database software, hardware, platforms or networks, and potential competition and future markets. They also look at some issues for the future such as the net neutrality. In chapter 8, Anna Blume Huttenlauch and Thoralf Knuth underline that digitalization of convergence is a result of industry trends and they look at approaches of antitrust authorities, namely the European Commission and the German Federal Cartel Office. In chapter 9, Bernardo Macedo and Sílvia Fagá De Almeida explain more about dynamic markets and competition policy while highlighting elements that pose challenges to competitors and elements that intensify competition. Also, they look at antitrust enforcement with the relevant market, market power and the competitive environment and efficiencies. In chapter 10, Federico Marini-Balestra analyzes recent antitrust developments in the online sector. In chapter 11, Márcio Issao Nakane, Camila Yumy Saito and Mariana Oliveira e Silva examine mobile payments and mobile banking in Brazil. In chapter 12, Kurt Tiam and Andy Huang look at manufacturing companies industry and the use of “White Spectrum” and, more specifically, the allocation of frequency spectrum in China, development of IPV6, foreign investment challenges in the M2M industry, data protection and data transfer concerns, restrictions on types of data transferred and encryption requirements in China.

The third part of the book analyzes intellectual property and competition in electronic environments. In chapter 13, Fabrizio Cugia di Sant’Orsola and Silvia Giampaolo explain competitive aspects of cloud-based services. In chapter 14, Leon B. Greenfield, Hartmut Schneider and Perry A. Lange question whether there is light at the end of the tunnel for the standard-essential patents and U.S. antitrust law. They look at injunctions based on standard-essential patents, antitrust violations based on abuse of standard-essential patents and determination of FRAND rates. They also assess the ability to challenge standard-essential patents (validity, infringement and enforceability). In chapter 15, Miguel Rato and Mark English present recent developments on IP and antitrust with factual context (standards, SEPs and FRAND commitments) and theoretical context (“hold-up” and “reverse hold-up”). They also provide a critical assessment of the Samsung and Motorola decisions. In chapter 16, Barbara Rosenberg, Luis Bernardo Cascão and Vivian Terng give an overview of antitrust cases involving intellectual property rights in the communication and media sector in Brazil. In chapter 17, Wolrad Prinz zu Waldeck und Pyrmont talks about standardization and FRAND licensing declarations, peculiarities of the German patent litigation system and the Orange-Book-Standard decision.

The fourth part of the book gives an overview of power over data. In chapter 18, Chris Boam looks at the role of privacy in a changing world. In chapter 19, Pamela Jones Harbour analyzes the Transatlantic perspective of data protection and competition law. In chapter 20, Loriano de Azevedo Marques Neto, Milene Louise Renée Coscione and Juliana Deguirmendjian examine Brazil in times of digital uncertainty. They analyze intimacy, private life, honor and image as persons’ fundamental rights and the legislation of the telecommunications sector in Brazil. In chapter 21, Lyda Mastrantonio and Natalia Porto question whether privacy and security threat mass digital surveillance.

The fifth part of the book examines open Internet and net neutrality. In chapter 22, Alfonso Silva and Sebastian Squella analyze net neutrality regulation with a worldwide overview and the Chilean pioneer’s experience. They talk about the net neutrality concept and its pros and cons. They also look at regulatory perspective of net neutrality. They approach Chilean experience with the content of the net neutrality law. In chapter 23, Chung Nian Lam explains net neutrality in Singapore, looks at the telecoms regulatory approach and licensing regulation and the TCC’s interconnection and non-discrimination obligations in this country. In chapter 24, Lauro Celidonio Gomes dos Reis Neto, Fabio Ferreira Kujawski and Thays Castaldi Gentil speak about the network neutrality issue in the context of Internet regulation in Brazil. In chapter 25, João Moura gives an interesting analysis of the new Brazilian Internet Constitution and the Netmundial Forum. In chapter 26, Regina Ribeiro do Valle points out the Brazilian telecom regulatory scenario and the proposals of the Internet law. For instance, she looks at neutrality of network vis-à-vis the right to charge for quality services.

The sixth part of the book highlights a Brazilian case study. In chapter 27, Maximiliano Martinhão, Guido Lorencini Schuina, Haitam Laboissiere Naser and Leonardo Fernandez Zagonn stress competition in the Brazilian telecommunications market. They look at institutional aspects for telecommunications in Brazil, the Brazilian telecommunications sector as well as the telecommunications market, fixed telephony, mobile telephony and broadband, fixed broadband, pay TV, indicators for the telecommunications sector, indicator for companies’ performance, competition indicators and service indicators. They recommend several actions for the telecommunications sector in Brazil to be undertaken such as general plan of competition (PGMC), wholesale products broker system (SNOA), regulation of industrial exploitation of dedicated lines (EILD), Anatel’s competition office, law of conditioned access service and infrastructure sharing. In chapter 28, Adriano Augusto do Couto Costa, Marcelo de Matos Ramos and Roberto Domingos Taufick see a new horizon for competition advocacy in Brazil. They speak about completion of universal access, digital TV and end of the term of the PSTN concession. In chapter 29, Marcelo Bechara de Souza Hobaika and Carlos M. Baigorri point out overlaps and synergies between regulators in the Brazilian telecommunications market and necessity of regulation. In chapter 30, Carlos Emmanuel Joppert Ragazzo and Cristiane Landerdahl de Albuquerque look at the new competition law in Brazil and the new framework for merger analysis in telecom. They highlight the importance of the telecommunications sector in the Brazilian economy. In chapter 31, Denis Alves Guimarães debates on dialogue between telecommunications and antitrust authorities.

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David Leys, Communications and Competition Law. Key issues in the Telecoms, Media and Technology Sectors, Fabrizio CUGIA DI SANT’ORSOLA, Rehman NOORMOHAMED and Denis ALVES GUIMÃRAES, January 2015, Concurrences Review N° 1-2015, Art. N° 70681, pp. 256-257

Editor Wolters Kluwer Law & Business

Date 1 December 2014

Number of pages 486

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