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Friday, January 31, 2014

The reform of the US Communications Act – my position

Hon. Fred Upton
Energy and Commerce Committee
US House of Representatives
2125 Rayburn House Office Building
Washington, DC 20515

Hon. Greg Walden
Communications and Technology Subcommittee
Energy and Commerce Committee
US House of Representatives
2125 Rayburn House Office Building
Washington, DC 20515

Re:  Communications Act Update

Dear Representatives Upton and Walden,
With regard to the update of the US Communications Act, in course before the Congress, I would like to share a professional perspective. I am a telecom competition attorney based in Romania.  Until October 2013 I was the Vice-President of the Romanian Competition Council and I was involved mostly in the cases and the debates surrounding the communications.
There is no doubt that communications law is global as communications themselves are truly global, more than any other economic activity.  Especially, legislation from the United States can have an impact in Europe, both positive and negative.  Europe is still struggling to find its way and to fill the digital and technology divide that separates it from the United States and Japan/South Korea.  There are hot ongoing debates about a legislative package at the EU level,  which aim is to accelerate the integration of the EU members states market (a feature which is specific to the EU, with serious effects on development and innovation) and, in the same time, solve all the issues pertaining to the digital economy, such as the rather false topic of the ”Net neutrality”.
As you move through the process, please keep in mind that the following
.       1. Both the U.S. and the E.U. need a “Digital Age” Communications Act.  Laws come to create frameworks for aspects which are the reality of the times in which they are enacted.  But the communications and the technology evolve at such a high pace that legislation must not impede such an evolution and the innovation coming with it.  It’s time to retire outdated classifications that apply to obsolete networks. My hope is that the U.S. will retire these classifications for telephone, cable, radio and so on.  Its leadership will be an important example for Europe and other regions to modernize their laws. 
2. Innovators and consumers deserve a level playing field in the marketplace.  The point of competition law is not to protect competitors, nor is it to give some parties preferential operating conditions. In Europe a number of American internet companies avoid paying tax and complying with data protection laws.  Furthermore the profits these companies make in Europe is not taxed in the USA. Meanwhile the local versions of the services stick to the rules and their development is affected.  It is difficult to win a race when you have to press the brakes too much and when your competitors are allowed to use lighter cars (i.e. less money paid as taxes).  This cannot be tolerated because competition in technology is global and such imbalances affect the consumers and the progress of technology everywhere. 
3. I believe that modernized laws will facilitate dynamic competition. This market competition – not old phone-era regulations – is the best driver of pro-consumer behavior, investment and new innovation.
We are where we are in terms of technology because of the competition and the innovation it facilitated this evolution. Please, do anything you can to preserve this in the future.
Remember of what the late Ronald Reagan used to say: ”If it moves, tax it. If it keeps moving, regulate it. If it stops moving, subsidize it”.
Thank you for your leadership and I wish God gives you wisdom on your update process.

Yours sincerely,
Valentin Mircea         
Telecoms and Competition Lawyer


Monday, January 20, 2014

A credo for a next-generation business lawyer

Dear Friends,
I keep my promise and I am back. Back to business. Back to what I like to do - business legal assistance.
I am coming back with more expertise in the competition law (antitrust, unfair competition, state aid).  I completed my formation as a business lawyer at the Competition Council and I am grateful for the many and interesting things I could learn there. I am able to see now the business and its challenges from both perspectives - private and public.  As truth is often in the middle, I may say that am able now to see the middle ground. 
This blog will continue to exist and will continue to reflect my personal views on the economy and the law, not the views of the law firm I head since 1 January 2014 - Mircea and Partners. 
Speaking of Mircea and Partners, we will do lot of competition law assistance (antitrust, unfair trade and state aid matters) but we will handle also matters in telecommunications, media, internet, energy, pharma and the retail industry. We will be different in our way of providing legal services and this is not happening just because we want to stand apart from the rest of the Bucharest Bar.  We will be different because the business and its attitude towards lawyers is changing rapidly.  The lawyers are much too conservative and afraid of making changes, at least as long as the fee continue to flow.
The pace of changes which will hit soon the lawyers is accelerated by the rapid evolution of technology. More and more tasks became automated in so many industries and activities such as the manual review of legal documents look like an oddity in a world where so many jobs disappeared since decades even if they were through to stay indefinitely.  The situation is even stranger or abnormal when clients realize that such activities are charged by lawyers with a few hundreds of Lei or Euro per hour. 
The regulations of the Bar clearly play a role - unfortunately, a negative one - in keeping this profession in the XIX-th century (not even XX-th!).  Certain decision-making people in the Bar believe (genuinely) that providing legal services is not a business and lawyers should not consider themselves businessmen. This is a big mistake, perhaps even a capital mistake.   The rigid attitude of the Bar and of many lawyers, (such as the interdiction to work on a ”no-success, no fee basis”) determined the major clients to develop large internal legal departments, staffed not with simple legal clerks but with specialists.
Together with my colleagues intend to make the step forward and align our interests with those of the clients, thus eliminating one nasty feature of the client-lawyer relationship - that of the moral hazard (lawyers should be agents of their clients, not simple service providers).  We will respect, of course, all the regulations applicable to our profession, provided that they do not come in flagrant contradiction with fundamental economic and legal principles.  For instance, we agree with the Bar that lawyers should not use the name of their clients in public in order to get attention nor should they announce publicly in which private transactions were involved.  But this is a matter of good sense and a private matter between a client and its lawyers. It is not for the Bar to impose rules in this respect. If a client wants to thank publicly to its lawyers, it should be able to do this.  Censorship was long abolished and the Bar should refrain from reinstating it. It will be against the interest of the lawyers themselves and against the basic principles in a market economy.
Although we at Mircea and Partners like to be lawyers, we will not be ashamed to be called also ”entrepreneurs”.  On the contrary. We will share such a title with so many others who are the pillars of the market economy.  We are part of the market economy, with its good and bad things, and we intend to respect primarily the laws of the market economy.
Yes, we will partner with our clients, sharing their risks and success alike. We will not float in calm waters whilst a client is facing the storm and we will not content to provide remote and cold advice to the clients on how to steer out of the danger. We will stay alongside the clients.  
In the same line of thinking we will innovate - new services, new approaches. We will offer our clients what they want, not what we have in the shelves and was not sold to others.  
The reference for our assistance to the clients will be”value-added”, so that the VAT is not just a number in our invoices.  Added-value is sometimes a vague concept but we consider that it must mean our client's success and our client's satisfaction, to which we had a direct and significant contribution.  
In terms of human resources, at Mircea and Partners we will rely on experts - persons with expertise and very good understanding of the industries in which they assist clients. Good legal knowledge will not be enough.  
There will be many more differences. But I prefer to show our approach directly to our clients.  
We will speak less but we will do more.