# August 7, 2008

# **DA 08-1863**

# 

# **[VIA CERTIFIED MAIL]{.underline}** 

## [RETURN RECEIPT REQUESTED AND FACSIMILE (415-621-4111)]{.underline}

Mr. Earl Nelson

c/o Richard B. Mazer, Esq.

Law Offices of Richard Mazer

99 Divisadero Street

San Francisco, CA 94117

> **Re: Notice of Debarment, File No. EB-08-IH-1138**

Dear Mr. Nelson:

Pursuant to section 54.8 of the rules of the Federal Communications
Commission (the "Commission"), by this Notice of Debarment you are
debarred from the schools and libraries universal service support
mechanism (or "E-Rate program") for a period of three years.[^1]

On May 19, 2008, the Enforcement Bureau (the "Bureau") sent you a Notice
of Suspension and Initiation of Debarment Proceedings (the "Notice of
Suspension").[^2] That Notice of Suspension was published in the Federal
Register on June 9, 2008.[^3] The Notice of Suspension suspended you
from the schools and libraries universal service support mechanism and
described the basis for initiation of debarment proceedings against you,
the applicable debarment procedures, and the effect of debarment.[^4]

Pursuant to the Commission's rules, any opposition to your suspension or
its scope or to your proposed debarment or its scope had to be filed
with the Commission no later than thirty (30) calendar days from the
earlier date of your receipt of the Notice of Suspension or publication
of the Notice of Suspension in the Federal Register.[^5] The Commission
did not receive any such opposition.

As discussed in the Notice of Suspension, you pled guilty to and were
convicted 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 E-Rate program.[^6] You admitted to entering into and engaging in a
conspiracy to suppress and restrain competition by submitting collusive,
noncompetitive, and rigged bids for an E-Rate project.[^7] Such conduct
constitutes the basis for your debarment, and your conviction falls
within the categories of causes for debarment under section 54.8(c) of
the Commission's rules.[^8] For the foregoing reasons, you are hereby
debarred for a period of three years from the debarment date, i.e., the
earlier date of your receipt of this Notice of Debarment or its
publication date in the Federal Register.[^9] Debarment excludes you,
for the debarment period, from 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."[^10]

Sincerely,

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
> (via mail)

# 

# May 19, 2008

# **DA 08-1180**

# 

# **[VIA CERTIFIED MAIL]{.underline}** 

## [RETURN RECEIPT REQUESTED AND FACSIMILE (415-621-4111)]{.underline}

Mr. Earl Nelson

c/o Richard B. Mazer, Esq.

Law Offices of Richard Mazer

99 Divisadero Street

San Francisco, CA 94117

richardbmazer@yahoo.com

> **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").[^11] Consequently, pursuant to 47 C.F.R.
§ 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.[^12]

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.[^13] You pled guilty to collusion and aiding and abetting a
scheme to defraud the E-Rate program.[^14] 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.[^15]

Pursuant to section 54.8(a)(4) of the Commission's rules,[^16] 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.[^17] Your suspension becomes effective upon
the earlier of your receipt of this letter or publication of notice in
the Federal Register.[^18]

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.[^19] Such requests, however, will not
ordinarily be granted.[^20] The Bureau may reverse or limit the scope of
suspension only upon a finding of extraordinary circumstances.[^21]
Absent extraordinary circumstances, the Bureau will decide any request
for reversal or modification of suspension within 90 days of its receipt
of such request.[^22]

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.[^23] Therefore, pursuant to section 54.8(a)(4) of
the Commission's rules, your conviction requires the Bureau to commence
debarment proceedings against you.

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.[^24] Absent extraordinary
circumstances, the Bureau will debar you.[^25] 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.[^26] 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.[^27]

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.[^28] The Bureau may, if necessary to protect the public
interest, extend the debarment period.[^29]

Please direct any response, if by messenger or hand delivery, to Marlene
H. Dortch, Secretary, Federal Communications Commission, 236
Massachusetts Avenue, N.E., 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 12^th^ Street, S.W., Room 4-C330,
Washington, DC, 20554, with a copy to Vickie Robinson, Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12^th^ Street, S.W., Room 4-C330,
Washington, DC, 20554. You shall also transmit a copy of the response
via email to diana.lee@fcc.govand to vickie.robinson@fcc.gov.

If you have any questions, please contact Ms. Lee via mail, by telephone
at (202) 418-1420 or by e-mail at diana.lee@fcc.gov. 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 vickie.robinson@fcc.gov.

> 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)

# 

[^1]: *See* 47 C.F.R. §§ 0.111(a), 54.8.

[^2]: Letter from Hillary S. DeNigro, Chief, Investigations and Hearings
    Division, Enforcement Bureau, Federal Communications Commission, to
    Mr. Earl Nelson, Notice of Suspension and Initiation of Debarment
    Proceedings, 23 FCC Rcd 8215 (Inv. & Hearings Div., Enf. Bur. 2008)
    (Attachment 1).

[^3]: 73 Fed. Reg. 32581 (June 9, 2008).

[^4]: *See* Notice of Suspension, 23 FCC Rcd at 8216-18.

[^5]: *See* 47 C.F.R. §§ 54.8 (e)(3) and (4). That date occurred no
    later than July 9, 2008. *See supra* note 3.

[^6]: *See* Notice of Suspension, 23 FCC Rcd at 8215-16.

[^7]: *See id*. at 8216.

[^8]: 47 C.F.R. § 54.8(c).

[^9]: *See* 47 C.F.R. §54.8(g) *See also* Notice of Suspension, 23 FCC
    Rcd at 8217.

[^10]: *See* 47 C.F.R. §§ 54.8(a)(1), 54.8(a)(5), 54.8(d); Notice of
    Suspension, 23 FCC Rcd at 8217-18.

[^11]: 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 ¶¶ 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*").

[^12]: 47 C.F.R. § 54.8; 47 C.F.R. § 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)).

[^13]: *See* *Second Report and Order*, 18 FCC Rcd at 9225, ¶ 66;
    *Program Management Order*, 22 FCC Rcd at 16387, ¶ 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 C.F.R. § 54.8(a)(6).

[^14]: *VNCI Superseding Indictment at* ¶¶ 79-80.

[^15]: *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 Fed.
    Reg. 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.

[^16]: 47 C.F.R. § 54.8(a)(4). *See* *Second Report and Order*, 18 FCC
    Rcd at 9225-9227, ¶¶ 67-74.

[^17]: 47 C.F.R. §§ 54.8(a)(1), (d).

[^18]: *Second Report and Order*, 18 FCC Rcd at 9226, ¶ 69; 47 C.F.R. §
    54.8(e)(1).

[^19]: 47 C.F.R. § 54.8(e)(4).

[^20]: *Id*.

[^21]: 47 C.F.R. § 54.8(e)(5).

[^22]: *See Second Report and Order*, 18 FCC Rcd at 9226, ¶ 70; 47
    C.F.R. §§ 54.8(e)(5), 54.8(f).

[^23]: "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 C.F.R. § 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 C.F.R.
    § 54.8(a)(1).

[^24]: *See Second Report and Order,* 18 FCC Rcd at 9226, ¶ 70; 47
    C.F.R. § 54.8(e)(3).

[^25]: *Second Report and Order,* 18 FCC Rcd at 9227, ¶ 74.

[^26]: *See id.,* 18 FCC Rcd at 9226, ¶ 70; 47 C.F.R. § 54.8(e)(5).

[^27]: *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 C.F.R. §
    54.8(f).

[^28]: *Second Report and Order*, 18 FCC Rcd at 9225, ¶ 67; 47 C.F.R. §§
    54.8(d), 54.8(g).

[^29]: *Id*.