[Federal Register Volume 71, Number 90 (Wednesday, May 10, 2006)]
[Notices]
[Pages 27254-27256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7040]


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FEDERAL COMMUNICATIONS COMMISSION

[DA 06-951]


Notice of Suspension and of Proposed Debarment Proceedings; 
Schools and Libraries Universal Service Support Mechanism

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: The Federal Communications Commission (``FCC'' or 
``Commission'') has received notice of the conviction of NextiraOne, 
LLC (``NextiraOne'') for wire fraud in violation of 18 U.S.C. 1343. 
Consequently, pursuant to 47 CFR 54.521, this letter constitutes 
official notice of NextiraOne suspension from the schools and libraries 
universal service support mechanism (``E-rate program''). In addition, 
the Enforcement Bureau (``Bureau'') hereby notifies NextiraOne that 
were are commencing debarment proceeding against it.

DATES: Within 90 days of receipt of any opposition to NextiraOne's 
suspension and proposed debarment, the Bureau or the Commission, in the 
absence of extraordinary circumstances, will provide NextiraOne with 
notice of its decision to debar. If the Bureau or the Commission 
decides to debar NextiraOne, its decision will become effective upon 
the earlier of NextiraOne's receipt of a debarment notice or 
publication of the decision in the Federal Register. May 10, 2006, 
NextiraOne's request must be received within 30 days after it receives 
this letter or after notice is published in the Federal Register, 
whichever comes first.

FOR FURTHER INFORMATION CONTACT: Diana Lee, Federal Communications 
Commission, Enforcement Bureau, Investigations and Hearings Division, 
Room 4-C330, 445 12th Street, SW., Washington, DC 20554, Diana Lee may 
be contacted by phone at (202) 418-0843 or e-mail at [email protected]. 
If Ms. Lee is unavailable, you may contact Eric Bash by telephone at 
(202) 418-1188 and by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: These actions constitute the conduct or 
transactions upon which this debarment proceeding is based. Moreover, 
NextiraOne conviction on the basis of these acts falls within the 
categories of causes for debarment defined in section 54.521 of the 
Commission rules. The complete text of the suspension letter is 
available for public inspections and copying during regular business 
hours at the FCC Reference Information Center, Portal II, 445 12th 
Street, SW., Room CY-A257, Washington, DC 20554, In addition the 
complete text is available on the FCC's Web site at http://www.fcc.gov. 
The text may also be purchased from the Commission's duplicating 
contractor, Best Copy and Printing, Inc., Portal II, 445 12th Street, 
SW., Room CY-B402, Washington, DC 20554, telephone (202) 488-5300 or 
(800) 378-3160, facsimile (202) 488-5563, or via e-mail http://www.bcpiweb.com.

    Federal Communications Commission.
William H. Davenport,
Chief, Investigations and Hearings Division, Enforcement Bureau.
    The suspension letter follows:

April 28, 2006.
[DA 06-951]

Via Certified Mail

Return Receipt Requested

Robert J. Buhay, Chief Financial Officer,
NextiraOne, LLC.,
c/o Robert A. Salerno, Esq.,
Morrison & Foerster LLP,
2000 Pennsylvania Avenue, NW.,
Washington, DC 20006-1888.

Re: Notice of Suspension and Initiation of Debarment Proceedings, File 
No. EB-06-IH-1392

Dear Mr. Buhay:


[[Page 27255]]


    The Federal Communications Commission (``FCC'' or 
``Commission'') has received notice of the conviction of NextiraOne, 
LLC (``NextiraOne'') for wire fraud in violation of 18 U.S.C. 1343 
in connection with NextiraOne's participation in the schools and 
libraries universal service support mechanism (``E-rate 
program'').\1\ Consequently, pursuant to 47 CFR 54.521, this letter 
constitutes official notice of NextiraOne's suspension from the E-
rate program. In addition, the Enforcement Bureau (``Bureau'') 
hereby notifies NextiraOne that we are commencing debarment 
proceedings against it.\2\
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    \1\ Any further reference in this letter to ``your conviction'' 
refers to NextiraOne's April 20, 2006 guilty plea and conviction of 
this count. United States v. NextiraOne, LLC, Criminal Docket No. 
4:06-cr-40041-LLP, Plea Agreement (D.S.D. April 20, 2006) 
(``NextiraOne Plea Agreement'' or ``Plea Agreement''). Sentence was 
imposed on April 20, 2006 and entered on April 21, 2006.
    \2\ 47 CFR 54.521; 47 CFR 0.111(a)(14) (delegating to the 
Enforcement Bureau authority to resolve universal service suspension 
and debarment proceedings pursuant to 47 CFR 54.521).
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    Although we suspend NextiraOne and initiate debarment 
proceedings, we acknowledge that NextiraOne has submitted a petition 
to waive the debarment rules (``Waiver Petition'').\3\ We further 
note that the Department of Justice submitted a letter in reference 
to that petition. We emphasize that the arguments and evidence 
presented in both submissions will be evaluated and considered 
during the debarment proceeding.\4\
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    \3\ See NextiraOne, LLC Petition for Waiver of Section 54.521 of 
the Commission's Rules, Petition for Waiver (filed April 14, 2006) 
(``Waiver Petition'').
    \4\ See generally, Waiver Petition; Letter from Scott Hammond, 
Assistant Attorney General, Antitrust Division, Department of 
Justice, to Marlene E. Dortch, Secretary, Federal Communications 
(filed April 14, 2006).
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I. Notice of Suspension

    The Commission has established procedures to prevent persons who 
have ``defrauded the government or engaged in similar acts through 
activities associated with or related to the schools and libraries 
support mechanism'' from receiving the benefits associated with that 
program.\5\ NextiraOne pled guilty to wire fraud for activities in 
connection with its participation in the E-rate program with the 
Oglala Nation Education Coalition (``ONEC'') schools in the District 
of South Dakota.
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    \5\ Second Report and Order, 18 FCC Rcd at 9225, ] 66. The 
Commission's debarment rules define a ``person'' as ``[a]ny 
individual, group of individuals, corporation, partnership, 
association, unit of government or legal entity, however, 
organized.'' 47 CFR 54.521(a)(6).
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    According to the plea, in December 2000, NextiraOne (known as 
Williams Communications Services, Inc. at that time) falsely 
promised ONEC schools that they could participate in the E-rate 
program for free; in January 2001, a member of the Oglala tribe, 
under Williams' guidance, submitted to the administrator of the E-
rate program, the Universal Service Administrative Company 
(``USAC''), E-rate applications that contained non-competitive 
manufacturer ``list'' prices; in December 2001, NextiraOne filed an 
invoice with USAC even though no equipment had been delivered to 
ONEC schools; and beginning in December 2001, NextiraOne re-
engineered the ONEC networks such that the costs decreased, but 
failed to notify ONEC. In January 2002, a billing employee at 
NextiraOne submitted an invoice by facsimile to USAC that made it 
falsely appear that ONEC had been billed for non-discounted portions 
of the equipment and services funded by E-rate, as well as certain 
ineligible items, and as a result, NextiraOne over-billed the E-rate 
program in excess of $1 million.
    Pursuant to section 54.521(a)(4) of the Commission's rules \6\, 
NextiraOne's conviction requires the Bureau to suspend it from 
participating in any activities associated with or related to the 
schools and libraries support mechanism, including the receipt of 
funds or discounted services through the schools and libraries 
support mechanism, or consulting with, assisting, or advising 
applicants or service providers regarding the schools and libraries 
support mechanism.\7\ NextiraOne's suspension becomes effective upon 
the earlier of its receipt of this letter or publication of notice 
in the Federal Register.\8\
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    \6\ 47 CFR 54.521(a)(4). See Schools and Libraries Universal 
Service Support Mechanism, Second Report and Order and Further 
Notice of Proposed Rulemaking, 18 FCC Rcd 9202, 9225-9227, ]] 67-74 
(2003) (``Second Report and Order'').
    \7\ Second Report and Order, 18 FCC Rcd at 9225, ] 67; 47 U.S.C. 
254; 47 CFR 54.502-54.503; 47 CFR 54.521(a)(4).
    \8\ Second Report and Order, 18 FCC Rcd at 9226, ] 69; 47 CFR 
54.521(e)(1).
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    Suspension is immediate pending the Bureau's final debarment 
determination. In accordance with the Commission's debarment rules, 
NextiraOne may contest this suspension or the scope of this 
suspension by filing arguments in opposition to the suspension, with 
any relevant documentation. NextiraOne's request must be received 
within 30 days after it receives this letter or after notice is 
published in the Federal Register, whichever comes first.\9\ Such 
requests, however, will not ordinarily be granted.\10\ The Bureau 
may reverse or limit the scope of suspension only upon a finding of 
extraordinary circumstances.\11\ Absent extraordinary circumstances, 
the Bureau or the Commission will decide any request for reversal or 
modification of suspension within 90 days of its receipt of such 
request.\12\
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    \9\ Second Report and Order, 18 FCC Rcd at 9226, ] 70; 47 CFR 
54.521(e)(4).
    \10\ Second Report and Order, 18 FCC Rcd at 9226, ] 70.
    \11\ 47 CFR 54.521(e)(5).
    \12\ See Second Report and Order, 18 FCC Rcd at 9226, ] 70; 47 
CFR 54.521(e)(5), 54.521(f).
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    NextiraOne asks us to toll its mandated suspension from the E-
rate program. NextiraOne offers no justification, however, for its 
request that we depart from our mandated suspension procedure. We 
will consider NextiraOne's arguments regarding the appropriateness 
of debarment at the debarment stage of the proceeding. Accordingly, 
we deny NextiraOne's request that we toll the suspension.

II. Initiation of Debarment Proceedings

    NextiraOne's guilty plea to criminal conduct in connection with 
the E-rate program, in addition to serving as a basis for immediate 
suspension from the program, also serves as a basis for the 
initiation of debarment proceedings against the company. 
NextiraOne's conviction falls within the categories of causes for 
debarment expressly contained in section 54.521(c) of the 
Commission's rules.\13\ Therefore, pursuant to section 54.521(a)(4) 
of the Commission's rules, we initiate debarment proceedings against 
NextiraOne.
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    \13\ ``Causes for suspension and debarment are the conviction of 
or civil judgment for attempt or commission of criminal fraud, 
theft, embezzlement, forgery, bribery, falsification or destruction 
of records, making false statements, receiving stolen property, 
making false claims, obstruction of justice and other fraud or 
criminal offense arising out of activities associated with or 
related to the schools and libraries support mechanism.'' 47 CFR 
54.521(c). Such activities ``include the receipt of funds or 
discounted services through the schools and libraries support 
mechanism, or consulting with, assisting, or advising applicants or 
service providers regarding schools and libraries support mechanism 
described in this section ([47 CFR] 54.500 et seq.).'' 47 CFR 
54.521(a)(1).
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    As with its suspension, NextiraOne may contest debarment or the 
scope of the proposed debarment by filing arguments and any relevant 
documentation within 30 calendar days of the earlier of the receipt 
of this letter or of publication in the Federal Register.\14\ During 
this debarment phase of the proceeding, we will consider the 
arguments NextiraOne presents in its Waiver Petition. We will also 
weigh the views of the Department of Justice in considering 
NextiraOne's debarment.
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    \14\ See Second Report and Order, 18 FCC Rcd at 9226, ] 70; 47 
CFR 54.521(e)(2)(i), 54.521(e)(3).
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    Absent extraordinary circumstances, the Bureau or the Commission 
will debar NextiraOne.\15\ Within 90 days of receipt of any 
opposition to NextiraOne's suspension and proposed debarment, the 
Bureau or the Commission, in the absence of extraordinary 
circumstances, will provide NextiraOne with notice of its decision 
to debar.\16\ If the Bureau or the Commission decides to debar 
NextiraOne, its decision will become effective upon the earlier of 
NextiraOne's receipt of a debarment notice or publication of the 
decision in the Federal Register.\17\
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    \15\ Second Report and Order, 18 FCC Rcd at 9227, ] 74.
    \16\ See id., 18 FCC Rcd at 9226, ] 70; 47 CFR 54.521(e)(5).
    \17\ Id. The Commission may reverse a debarment, or may limit 
the scope or period of debarment upon a finding of extraordinary 
circumstances, following the filing of a petition by you or an 
interested party or upon motion by the Commission. 47 CFR 54.521(f).
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    If and when NextiraOne's debarment becomes effective, it will be 
prohibited from participating in activities associated with or 
related to the schools and libraries support mechanism for some 
period of time.\18\
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    \18\ Second Report and Order, 18 FCC Rcd at 9225, ] 67; 47 CFR 
54.521(d), 54.521(g).
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    Please direct any responses to the following address: Diana Lee, 
Esq., Federal Communications Commission, Enforcement

[[Page 27256]]

Bureau, Investigations and Hearings Division, Room 4-C443, 445 12th 
Street, SW., Washington, DC 20554.
    If NextiraOne submits its response via hand-delivery or non-
United States Postal Service delivery (e.g., Federal Express, DHL, 
etc.), please send the response to Ms. Lee at the following address: 
Federal Communications Commission, 9300 East Hampton Drive, Capitol 
Heights, MD 20743.
    If NextiraOne has any questions, please contact Ms. Lee via 
mail, by telephone at (202) 418-1420 or by e-mail at 
[email protected]. If Ms. Lee is unavailable, you may contact Eric 
Bash by telephone at (202) 418-1188 and by e-mail at 
[email protected].
Sincerely yours,
Kris A. Monteith, Chief, Enforcement Bureau.
cc: James J. Regan, Esq., Crowell and Moring LLP (via E-Mail).
E. Ashton Johnston, Esq., DLA Piper Rudnick Gray Cary, U.S. LLP (via 
E-Mail).
Eric C. Hoffmann, Esq., United States Department of Justice, 
Antitrust Division (via E-Mail).
Alicia Bentley, Esq., United States Department of Justice, Civil 
Division (via E-Mail).
[FR Doc. E6-7040 Filed 5-9-06; 8:45 am]
BILLING CODE 6712-01-P