Newhall Telecom, LLC
Docket: ASBCA 57438
Decision date: 2010-07-15

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Newhall Telecom, LLC 
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ASBCA No. 57438 
Under Contract No. W912CJ-06-D-0001 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
Mr. Joseph F. Girard 
President & CEO 
Raymond M. Saunders, Esq. 
Army 
Chief Trial Attorney 
CPT Nicholes Dembinski, JA 
Robert T. Wu, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE HARTMAN 
ON GOVERNMENT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE 
The Department ofthe Army moves to dismiss this appeal for lack of prosecution. 
We grant the motion. 
STATEMENT OF FACTS 
In Apri12006, the Army awarded Contract No. W912CJ-06-D-0001 to appellant, 
Newhall Telecom, LLC (Newhall) to provide cable television service to Fort Hunter 
Liggett, California (R4, tabs 1, 30, 31, 33; Complaint (Compl.) ~~ 15, 21, Answer~~ 15, 
21). On 15 July 2010, the Army's contracting officer (CO) sent Newhall a Demand for 
Assurance and Notice to Cure stating: 
Our office and the Fort Hunter Liggett command have been 
notified by DirecTV and the US Army CID [Criminal 
Investigative Division] Command Field Office in Sacramento 
(In coordination with the 
United States Attorney's Office in 
San Jose) that your company ... is unlawfully retransmitting 
DirecTV's signal to Fort Hunter Liggett for cable TV service 
to the installation .... We have been further informed that 
DirecTV will stop transmitting signals to the accounts and 
equipment located on Fort Hunter Liggett and/or disconnect 
Newhall's accounts signal. ... Therefore, there is a good 
reason to believe that Newhall is not only in violation of 
Section H-4 of the franchise agreement, but [that] Newhall 

will be unable to continue providing ... TV service to Fort 
Hunter Liggett. 
Because of the above allegations, and what the direct 
implications those allegations would mean for continued, 
uninterrupted cable service to this installation, we require 
Newhall to provide adequate assurance of its continued 
performance regardless ofDirecTV or any other satellite TV 
service provider's actions to terminate their service to 
Newhall. 
(R4, tab 82; Compl. ~~ 29, 30, Answer~~ 29, 30) After exchanging correspondence with 
Newhall for several weeks, on 26 August 2010, the CO terminated Newhall's contract for 
default, stating: 
This command has repeatedly over the course of the past forty-five 
days sought assurance ofNewhall's ability to lawfully perform [its] 
obligations under the subject contract. Your letter, dated August 3, 
2010, and your attorney's letters and attachments dated August 20 
and 25, 2010, are non-responsive to our request 
for you to provide 
evidence of Newhall's continued ability to perform under the 
contract, and that the services provided by Newhall have been 
legally obtained and retransmitted. Each non-response constitutes a 
separate basis for this command to terminate the subject contract 
with Newhall for default. 
(R4, tab 98; Compl. ~~ 33, 34, 40, 47, 48, 55, 59, Answer~~ 33, 34, 40, 47, 48, 55, 59) 
On 13 September 2010, a DirecTV representative wrote 4COM, Inc., which is in 
the business of purchasing programming rights from DirecTV and re-selling them to cable 
TV franchises, such as Newhall, that: 
On August 27, 2010, DIRECTV advised you that it was 
investigating account irregularities in connection to a 4COM 
transport account servicing Fort Hunter Liggett in Jolon, 
California (DIRECTV Account No. 19347921). Upon further 
investigation, and after speaking with 4COM affiliate Newhall 
Telecom LLC and its owner Joe Girard, DIRECTV has 
determined that its programming services are being improperly 
received and used at Fort Hunter Liggett and, for that reason, 
will terminate all service to the identified 
transport account 
effective the close ofbusiness on Friday, September 17, 2010. 
[Emphasis in original] 
2 

(R4, tab 105) On the same date, a representative from DirecTV wrote Newhall's counsel 
that: 
(R4, tab 1 06) 
Thank you and your client, Joe Girard, for making the 
time to speak to DIRECTV earlier today. In consideration of 
the matters discussed, and for the reasons previously outlined, 
DIRECTV has determined to terminate programming service 
to the transport account servicing Fort Hunter Liggett and to 
the six satellite receivers that were relocated from The Forum 
and installed at Fort Hunter Liggett. 
On 23 November 2010, Newhall filed this appeal, alleging the Army wrongfully 
and improperly terminated Newhall's contract for default (Compl. ~~ 5, 7, 67). On 
8 March 2011, the Army filed an answer to the complaint asserting that Newhall was 
providing DirecTV service to Fort Hunter Liggett in excess of and/or in violation of its 
agreement with its broker ( 4COM), Newhall did not provide adequate assurances of its 
ability to continue to perform its contract or cure its licensing problem, and the Army's 
concerns were realized when DirecTV terminated Newhall's authority to retransmit to 
Fort Hunter Liggett (Answer at 23-27). 
On 3 
1 March 2011, the Army served its first discovery request which contained 
requests for document production and interrogatories (Government Motion to Dismiss for 
Failure to Prosecute (Gov't Mot. Dis.) Exhibit (Ex.) 1). The parties agreed that Newhall 
could have until24 June 2011 to respond to the Army's discovery request (id., ex. 2), but 
entered into discussions to amicably resolve the appeal before Newhall responded to the 
Army's discovery requests (id., ex. 3). After about a year of settlement discussions with 
no success, on 3 July 2012, the Army requested that Newhall submit its response to the 
discovery requests on or before 14 August 2012 (id., ex. 4). The Army also advised the 
Board settlement discussions had failed and it had requested Newhall respond to its 
discovery requests (id., ex. 5). 
On 20 July 2012, the Army asked Newhall for dates Joseph F. Girard, Newhall's 
Chief Executive Officer (CEO) and President, would be available for deposition (Gov't 
Mot. Dis., ex. 6), but was never given such information. About three weeks later, on 
10 August 2012, the Army obtained from the Board a subpoena for DirecTV's custodian 
of records (id., ex. 7). The same day, counsel for Newhall notified the Board and the 
Army that they were withdrawing as Newhall's counsel in this appeal. In advising the 
Army and Board of its withdrawal, counsel stated "all future correspondence" regarding 
the appeal should be directed to "Mr. Joseph F. Girard," Newhall's CEO and President, at 
a post office box address in King City, CA. (/d., ex. 8) 
3 

Board Rule 15 provides 45 days for responding to discovery requests and the Army 
was expecting Newhall to respond to its discovery request on or before 14 August 2012, 
but received no responses or any request for additional time to respond (Gov't Mot. Dis. at 
5). While Army counsel attempted to reach Mr. Girard via telephone and left a voicemail 
with information on how to reach counsel, he did not receive any response by 
18 September 2012 (id. at 5-6). On that date, Army counsel sent to Mr. Girard at the King 
City address by certified mail a letter explaining the Army was seeking responses to its 
discovery requests served on Newhall (id., ex. 1 0). While the letter was signed for by Ms. 
Rose Ellen Hughes, the Army received no response to its letter (id. at 6). During October, 
Army counsel again attempted to reach Mr. Girard by telephone and left a voicemail for 
Mr. Girard providing contact information. Counsel, however, received no response to his 
call and voicemail. (!d.) 
By letter dated 27 November 2012, the Board ordered the parties to jointly propose 
three hearing dates, estimate the expected length of a hearing and supply a proposed 
location if a location other than the Board's offices was desired for a hearing. The Army 
subsequently advised the Board it had been unable to reach Mr. Girard to discuss the 
issues that the Board ordered be addressed jointly by the parties. 
On 17 January 2013, the Army filed a Motion to Compel responses from Newhall 
to its discovery requests with this Board and sent the motion to Mr. Girard at the King 
City, CA address by certified mail (Gov't Mot. Dis., ex. 11). The motion, however, was 
returned to the Army by the Postal Service in mid-February (id.). 
During February, Board staff attempted unsuccessfully to reach Mr. Girard by 
telephone at numbers listed for him and Newhall, left a message asking Mr. Girard to 
contact the Board, and furnished information on how Mr. Girard could contact the Board. 
The Board, however, received no response. The Army attempted to reach Mr. Girard by 
telephone in March of2013 but received no answer (Gov't Mot. Dis. at 6). 
In May 2013, after several attempts, a Board paralegal reached Mr. Girard by 
telephone, asked Mr. Girard for emails where he could be contacted, and asked if he could 
participate in a conference call with the assigned administrative judge and opposing 
counsel. Mr. Girard furnished the paralegal two emails for contacting him, said he would 
participate in a conference call at 2 p.m. (EDT) on 21 May 2013, and gave the paralegal a 
telephone number where he could be reached for the call. At the designated time of the 
call, the number furnished by Mr. Girard simply played a recording that the voicemail box 
associated with the number was full. When the Board's paralegal attempted to reach him 
at the first email address he supplied (mark@[ email provider]), she received a return 
message stating "No such user here." When she attempted to reach him at the second 
email address he supplied (sofakingbad@[email provider]), she received 
a return message 
stating "[t]he email account you tried to reach does not exist." 
4 

On 24 May 2013, this Board issued a Show Cause Order directing Mr. Girard to 
file with the Board a response to the Army's Motion to Compel and a document setting 
forth cause why its appeal should not be dismissed for failure to prosecute. The Board 
sent its order to Mr. Girard at the King City, CA post office box address by certified mail. 
The Order was returned to the Board by the Postal Service on 15 July 2013 as 
"UNCLAIMED" and "UNABLE TO FORWARD." The Postal Service did NOT indicate 
the Post Office Box to which the letter was sent had been closed by Mr. Girard or anyone 
else. 
On 29 May 2013, the Army filed a motion to dismiss this appeal for failure to 
prosecute, which it served on Mr. Girard at the King City, CA post office box address. To 
date, Newhall has not responded to the Army's discovery request, the Board's order 
regarding scheduling of a hearing, the Army's Motion to Compel, the Board's Show 
Cause Order, or the Army's Motion to Dismiss for Failure to Prosecute. Further, the 
Board has received no communication from Mr. Girard or Newhall by mail, phone, or 
email in response to various efforts to contact Newhall and its representative. 
DECISION 
Board Rule 31 provides: 
Whenever a record discloses the failure of either party 
to file documents required by these Rules, respond to notices 
or correspondence from the Board, comply with orders of the 
Board, or otherwise indicates an intention not to continue the 
prosecution or defense of an appeal, the Board may, in the 
case of a default by the appellant, issue an order to show cause 
why the appeal should not be dismissed .... If good cause is 
not shown, the Board may take appropriate action. 
A Board Order to Show Cause is intended to give a party the opportunity to 
explain the 
circumstances surrounding its failure to move its appeal forward before action is taken by 
this Board with respect to the failures. Government Therapy Servs., Inc., ASBCA 
No. 53972, 04-2 BCA ,-r 32,774 at 162,063; Scorpio Piping Co., ASBCA No. 34073, 
89-2 BCA ,-r 21,813 at 109,764. A dismissal with prejudice for failure to prosecute 
pursuant to Rule 31 "is a harsh measure operating as an adjudication on the merits, and we 
employ it sparingly." Sykes Commc'ns, Inc., ASBCA Nos. 53842,54077,05-1 BCA 
,-r 32,864 at 162,853; Government Therapy Servs., 04-2 BCA ,-r 32,774 at 162,063; 
Generator Techs., Inc., ASBCA No. 53206, 03-1 BCA ,-r 32,058 at 158,461; David's 
Econo-Move, Inc., ASBCA Nos. 49105,49562, 00-1 BCA ,-r 30,621 at 151,156; Ellis 
Constr. Co., ASBCA No. 50091, 98-1 BCA ,-r 29,552 at 146,501. 
5 

In response to the Board's Show Cause Order and inquiries, Newhall has furnished 
the Board no information regarding its failure to move this appeal forward since Joseph F. 
Girard became its representative one year ago. We understand that the appellant is now 
proceeding prose. However, we have held previously that legal counsel, although 
desirable, is not necessary to answer discovery or otherwise prosecute a Board appeal. 
Ellis Constr., 98-1 BCA ~ 29,552 at 146,501; Airborne Indus., Inc., ASBCA No. 45491 et 
al., 95-1 BCA ~ 27,496 at 137,032, aff'd on recon., 95-1 BCA ~ 27,411. Under Board 
Rule 26, a Board appellant may prosecute its appeal by a company officer, such as Mr. 
Girard. Moreover, the less stringent standard accorded pro se litigants does not allow a 
Board appellant, such as Newhall, to "disregard" the deadlines set by Board Rules or 
Orders, communication attempts by Board personnel, or a Show Cause Order. See, e.g., 
Brown v. United States, 22 Cl. Ct. 211,213 (1990) (more lenient standard for a prose 
does not allow setting of own deadlines and fabricating own rules; "latitude" does not 
equal "free rein"), aff'd, 935 F.2d 280 (Fed. Cir. 1991) (table). 
We have examined the entire record here and there is no evidence that Newhall has 
been "unable" to comply with the Board's Orders or Rules. Rather, there simply exists an 
unexplained refusal by Newhall to do anything to advance the appeal since Mr. Girard 
became its representative. The record here demonstrates the appellant's intent to abandon 
prosecution of this appeal through its failure to respond to the Army's requests for 
discovery, file a status report, respond to Army motions, and comply with the Board's 
orders discussed above. See, e.g., Ellis Constr., 98-1 BCA ~ 29,552 at 146,500-01. 
Mr. Girard's furnishing to a Board paralegal of"non-existent" email addresses and a 
telephone number that promptly went to a full voicemail message box precluding conduct 
of a conference call set by the Board shows Newhall does not plan to pursue its challenge 
to the contract default termination. See Batalas Indus., Inc., ASBCA No. 44071, 98-1 
BCA ~ 29,456 (appeal dismissed for failure to prosecute where no address for appellant, 
representative failed to communicate with Board, and appellant did not respond to order to 
show cause); Antonio Iglesias Mateos, ASBCA No. 42967, 95-2 BCA ~ 27,681 (appeal 
dismissed for failure to prosecute where appellant failed to respond to motion to dismiss 
and show cause order, and Board correspondence returned unopened); All South Supply, 
Inc., ASBCA Nos. 38996, 39275, 90-2 BCA ~ 22,931 (appeals dismissed for failure to 
prosecute where the appellant failed to respond to motion to dismiss, mail was returned, 
and the appellant failed to notify Board of its whereabouts); Mac-In-Erny, Inc., ASBCA 
No. 28689, 88-1 BCA ~ 20,359 (appeal dismissed for failure to prosecute because the 
appellant disregarded Board correspondence and 
orders and failed to notify Board of its 
whereabouts), aff'd, 862 F.2d 321 (Fed. Cir. 1988) (table). 
In sum, during the past year, the appellant has evidenced a lack of"meaningful 
effort" to advance resolution of this appeal establishing "a pattern of conduct constituting 
a failure to prosecute" the appeal. See Sykes Commc 'ns, 05-1 BCA ~ 32,864 at 162,853; 
Government Therapy Servs., 04-2 BCA ~ 32,774 at 162,063; Tech-Tron Constructors, 
6 

ASBCA No. 46367, 97-1 BCA ~ 28,746 at 143,478; Scorpio Piping, 89-2 BCA ~ 21,813 
at 109,764. Under the circumstances here, a dismissal with prejudice is appropriate. 
CONCLUSION 
The government's motion to dismiss for failure to prosecute is granted. The appeal 
is dismissed with prejudice under Board Rule 31. 
Dated: 15 August 20 13 
---­/~.a 
TERRENCE S. HARTMAN 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur . I concur 
~M-
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
amini rative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the Armed 
Services Board of Contract Appeals in ASBCA No. 57438, Appeal ofNewhall Telecom, 
LLC, rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals