[Federal Register Volume 73, Number 111 (Monday, June 9, 2008)]
[Notices]
[Pages 32581-32582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12842]


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FEDERAL COMMUNICATIONS COMMISSION

[DA 08-1180]


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

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: The Enforcement Bureau gives notice of Mr. Earl Nelson's 
suspension from the schools and libraries universal service support 
mechanism (or ``E-Rate Program''). Additionally, the Bureau gives 
notice that debarment proceedings are commencing against him. Mr. 
Nelson, or any person who has an existing contract with or intends to 
contract with him to provide or receive services in matters arising out 
of activities associated with or related to the schools and libraries 
support, may respond by filing an opposition request, supported by 
documentation to Diana Lee.

DATES: Opposition requests must be received by July 9, 2008. However, 
an opposition request by the party to be suspended must be received 30 
days from the receipt of the suspension letter or July 9, 2008, 
whichever comes first. The Enforcement Bureau will decide any 
opposition request for reversal or modification of suspension or 
debarment within 90 days of its receipt of such requests.

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 Ms. Vickie Robinson, 
Assistant Chief, Investigations and Hearings Division, by telephone at 
(202) 418-1420 and by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The Enforcement Bureau has suspension and 
debarment authority pursuant to 47 CFR 54.8 and 47 CFR 0.111. 
Suspension will help to ensure that the party to be suspended cannot 
continue to benefit from the schools and libraries mechanism pending 
resolution of the debarment process. Attached is the suspension letter, 
DA 08-1180, which was mailed to Mr. Nelson and released on May 19, 
2008. The complete text of the notice of debarment is available for 
public inspection 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 inspection and copying 
during regular business hours at the contractor, Best Copy and 
Printing, Inc., Portal II, 445 12th Street, SW., Room CY-B420, 
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.
Hillary Denigro,
Chief, Investigations and Hearings Division, Enforcement Bureau.

The attached is the Suspension and Initiation of Debarment Letter to 
Earl Nelson.

May 19, 2008.
DA 08-1180.

Via Certified Mail Return Receipt Requested and Facsimile (415-621-
4111)

Mr. Earl Nelson, c/o Richard B. Mazer, Esq., Law Offices of Richard 
Mazer, 99 Divisadero Street, San Francisco, CA 94117, 
[email protected].

Re: Notice of Suspension and Initiation of Debarment Proceedings, 
File No. EB-08-IH-1138

    Dear Mr. Nelson: The Federal Communications Commission (``FCC'' 
or ``Commission'') has received notice of your conviction of 
collusion and aiding and abetting, in violation of 15 U.S.C. 1 and 
18 U.S.C. 2, in connection with your participation in the schools 
and libraries universal service support mechanism (``E-Rate 
program'').\1\ Consequently, pursuant to 47 CFR 54.8, this letter 
constitutes official notice of your suspension from the E-Rate 
program. In addition, the Enforcement Bureau (``Bureau'') hereby 
notifies you that we are commencing debarment proceedings against 
you.\2\
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    \1\ Any further reference in this letter to ``your conviction'' 
refers to your guilty plea and subsequent conviction of collusion 
and aiding and abetting. United States v. Earl Nelson, Criminal 
Docket No. 3:05-CR-00208-CRB-011, Judgment (N.D.Cal. filed and 
entered Mar. 21, 2008) (``Earl Nelson Judgment''). See United States 
v. Video Network Communications, Inc. et al., Criminal Docket No. 
3:05-CR-00208-CRB, Superseding Indictment at paras. 79-80 (N.D.Cal. 
filed Dec. 8, 2005 and entered Dec. 12, 2005); http://www.usdoj.gov/atr/cases/f213600/213626.htm (accessed May 1, 2008) (``VNCI 
Superseding Indictment'').
    \2\ 47 CFR 54.8; 47 CFR 0.111 (delegating to the Enforcement 
Bureau authority to resolve universal service suspension and 
debarment proceedings). The Commission adopted debarment rules for 
the schools and libraries universal service support mechanism in 
2003. See Schools and Libraries Universal Service Support Mechanism, 
Second Report and Order and Further Notice of Proposed Rulemaking, 
18 FCC Rcd 9202 (2003) (``Second Report and Order'') (adopting 
section 54.521 to suspend and debar parties from the E-rate 
program). In 2007, the Commission extended the debarment rules to 
apply to all of the Federal universal service support mechanisms. 
Comprehensive Review of the Universal Service Fund Management, 
Administration, and Oversight; Federal-State Joint Board on 
Universal Service; Schools and Libraries Universal Service Support 
Mechanism; Lifeline and Link Up; Changes to the Board of Directors 
for the National Exchange Carrier Association, Inc., Report and 
Order, 22 FCC Rcd 16372, 16410-12 (2007) (Program Management Order) 
(renumbering section 54.521 of the universal service debarment rules 
as section 54.8 and amending subsections (a)(1), (5), (c), (d), 
(e)(2)(i), (3), (e)(4), and (g)).
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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.\3\ You pled guilty to collusion and aiding and abetting a 
scheme to defraud the E-Rate program.\4\ You admitted that, as a 
former branch manager of Inter-Tel Technologies, you entered into 
and engaged in a conspiracy with other defendants and co-
conspirators to suppress and restrain competition by submitting 
collusive, noncompetitive, and rigged bids for an E-Rate project at 
the West Fresno Elementary School District in Fresno, California.\5\
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    \3\ See Second Report and Order, 18 FCC Rcd at 9225, para. 66; 
Program Management Order, 22 FCC Rcd at 16387, para. 32. 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 54.8(a)(6).
    \4\ VNCI Superseding Indictment at paras. 79-80.
    \5\ See id. The Commission debarred Inter-Tel Technologies, Inc. 
in 2006 for the company's conviction for mail fraud and conspiracy 
to suppress and eliminate competition. See Inter-Tel Technologies, 
Inc., Notice to Debarment, 21 FCC Rcd 7506 (2006); 71 FR 42397 
(2006). The following four individuals, who were also charged in the 
VNCI Superseding Indictment, have pled guilty or been found guilty 
and subsequently sentenced: Judy Green, George Marchelos, William 
Holman, and Allan Green. We are sending separate notices of 
suspension and initiation of debarment proceedings to these 
individuals.

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[[Page 32582]]

    Pursuant to section 54.8(a)(4) of the Commission's rules,\6\ 
your conviction requires the Bureau to suspend you from 
participating in any activities associated with or related to the 
schools and libraries fund mechanism, including the receipt of funds 
or discounted services through the schools and libraries fund 
mechanism, or consulting with, assisting, or advising applicants or 
service providers regarding the schools and libraries support 
mechanism.\7\ Your suspension becomes effective upon the earlier of 
your receipt of this letter or publication of notice in the Federal 
Register.\8\
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    \6\ 47 CFR 54.8(a)(4). See Second Report and Order, 18 FCC Rcd 
at 9225-9227, paras. 67-74.
    \7\ 47 CFR 54.8(a)(1), (d).
    \8\ Second Report and Order, 18 FCC Rcd at 9226, para. 69; 47 
CFR 54.8(e)(1).
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    Suspension is immediate pending the Bureau's final debarment 
determination. In accordance with the Commission's debarment rules, 
you may contest this suspension or the scope of this suspension by 
filing arguments in opposition to the suspension, with any relevant 
documentation. Your request must be received within 30 days after 
you receive 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 
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\ 47 CFR 54.8(e)(4).
    \10\ Id.
    \11\ 47 CFR 54.8(e)(5).
    \12\ See Second Report and Order, 18 FCC Rcd at 9226, para. 70; 
47 CFR 54.8(e)(5), 54.8(f).
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II. Initiation of Debarment Proceedings

    Your guilty plea and conviction of 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 you. Your 
conviction falls within the categories of causes for debarment 
defined in section 54.8(c) of the Commission's rules.\13\ Therefore, 
pursuant to section 54.8(a)(4) of the Commission's rules, your 
conviction requires the Bureau to commence debarment proceedings 
against you.
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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, the high-
cost support mechanism, the rural healthcare support mechanism, and 
the low-income support mechanism.'' 47 CFR 54.8(c). Such activities 
``include the receipt of funds or discounted services through [the 
Federal universal service] support mechanisms, or consulting with, 
assisting, or advising applicants or service providers regarding 
[the Federal universal service] support mechanisms.'' 47 CFR 
54.8(a)(1).
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    As with your suspension, you 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\ Absent 
extraordinary circumstances, the Bureau will debar you.\15 \Within 
90 days of receipt of any opposition to your suspension and proposed 
debarment, the Bureau, in the absence of extraordinary 
circumstances, will provide you with notice of its decision to 
debar.\16\ If the Bureau decides to debar you, its decision will 
become effective upon the earlier of your receipt of a debarment 
notice or publication of the decision in the Federal Register.\17\
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    \14\ See Second Report and Order, 18 FCC Rcd at 9226, para. 70; 
47 CFR 54.8(e)(3).
    \15\ Second Report and Order, 18 FCC Rcd at 9227, para. 74.
    \16\ See id., 18 FCC Rcd at 9226, para. 70; 47 CFR 54.8(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 54.8(f).
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    If and when your debarment becomes effective, you will be 
prohibited from participating in activities associated with or 
related to the schools and libraries support mechanism for three 
years from the date of debarment.\18\ The Bureau may, if necessary 
to protect the public interest, extend the debarment period.\19\
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    \18\ Second Report and Order, 18 FCC Rcd at 9225, para. 67; 47 
CFR 54.8(d), 54.8(g).
    \19\ Id.
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    Please direct any response, if by messenger or hand delivery, to 
Marlene H. Dortch, Secretary, Federal Communications Commission, 236 
Massachusetts Avenue, NE., Suite 110, Washington, D.C. 20002, to the 
attention of Diana Lee, Attorney Advisor, Investigations and 
Hearings Division, Enforcement Bureau, Room 4-C330, with a copy to 
Vickie Robinson, Assistant Chief, Investigations and Hearings 
Division, Enforcement Bureau, Room 4-C330, Federal Communications 
Commission. If sent by commercial overnight mail (other than U.S. 
Postal Service Express Mail and Priority Mail), the response should 
be sent to the Federal Communications Commission, 9300 East Hampton 
Drive, Capitol Heights, Maryland 20743. If sent by first-class, 
Express, or Priority mail, the response should be sent to Diana Lee, 
Attorney Advisor, Investigations and Hearings Division, Enforcement 
Bureau, Federal Communications Commission, 445 12th Street, SW., 
Room 4-C330, Washington, DC, 20554, with a copy to Vickie Robinson, 
Assistant Chief, Investigations and Hearings Division, Enforcement 
Bureau, Federal Communications Commission, 445 12th Street, SW., 
Room 4-C330, Washington, DC, 20554. You shall also transmit a copy 
of the response via e-mail to [email protected] and to 
[email protected].
    If you have 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 Ms. Vickie Robinson, 
Assistant Chief, Investigations and Hearings Division, by telephone 
at (202) 418-1420 and by e-mail at [email protected].

 Sincerely yours,

Hillary S. DeNigro,
Chief,
Investigations and Hearings Division,
Enforcement Bureau.

cc: Kristy Carroll, Esq., Universal Service Administrative Company (via 
e-mail); Michael Wood, Antitrust Division, United States Department of 
Justice (vial mail).

[FR Doc. E8-12842 Filed 6-6-08; 8:45 am]
BILLING CODE 6712-01-P