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###### Federal Communications Commission

          - [DA 08-1863] 

# AGENCY:

Federal Communications Commission. 

# ACTION:

Notice. 

# SUMMARY:

The Enforcement Bureau (the “Bureau”) debars Mr. Earl Nelson from the schools and libraries universal service support mechanism (or “E-Rate Program”) for a period of three years based on his conviction of collusion and aiding and abetting in connection with his participation in the program. The Bureau takes this action to protect the E-Rate Program from waste, fraud, and abuse. 

# DATES:

Debarment commences on the date Mr. Earl Nelson receives the debarment letter or August 27, 2008, whichever date come first, for a period of three years. 

# FOR FURTHER INFORMATION CONTACT:

                        Rebekah Bina, Federal Communications Commission, Enforcement Bureau, Investigations and Hearings Division, Room 4-C330, 445 12th Street, SW., Washington, DC 20554. Rebekah Bina may be contacted by phone at (202) 418-7931 or e-mail at                         *Rebekah.Bina@fcc.gov.*                         If Ms. Bina is unavailable, you may contact Ms. Vickie Robinson, Assistant Chief, Investigations and Hearings Division, by                               ( print page 50623)                            telephone at (202) 418-1420 and by e-mail at                         *vickie.robinson@fcc.gov.*

# SUPPLEMENTARY INFORMATION:

                    The Bureau debarred Mr. Earl Nelson from the schools and libraries universal service support mechanism for a period of three years pursuant to 47 CFR 54.8 and 47 CFR 0.111. Attached is the debarment letter, DA 08-1863, which was mailed to Mr. Earl Nelson and released on August 7, 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 service 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. 

Vickie Robinson, 

Assistant Chief, Investigations and Hearings Division, Enforcement Bureau. 

The debarment letter, which attached the suspension letter, follows: 

#### August 7, 2008 

#### DA 08-1863 

### 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 

#### 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 

### 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 

*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”).[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] 
      ( print page 50624)    

## 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] 

                    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] 

                    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] 

## 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.                 

                    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] 

                    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] 

                    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, DC 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 email to                           ( print page 50625)    *diana.lee@fcc.gov*                     and 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)

# Footnotes

1.                             See 47 CFR 0.111(a), 54.8.                     
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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).                     
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3.                             73 FR 32581 (June 9, 2008).                     
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4.                             See Notice of Suspension, 23 FCC Rcd at 8216-18.                     
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5.                             See 47 CFR 54.8 (e)(3) and (4). That date occurred no later than July 9, 2008. See supra note 3.                     
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6.                             See Notice of Suspension, 23 FCC Rcd at 8215-16.                     
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7.                             See id. at 8216.                       
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8.                             47 CFR 54.8(c).                       
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9.                             See 47 CFR 54.8(g). See also Notice of Suspension, 23 FCC Rcd at 8217.                       
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10.                             See 47 CFR 54.8(a)(1), 54.8(a)(5), 54.8(d); Notice of Suspension, 23 FCC Rcd at 8217-18.                     
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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”).                     
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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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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).                     
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4.                             VNCI Superseding Indictment at paras. 79-80.                     
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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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6.                             47 CFR 54.8(a)(4). See Second Report and Order, 18 FCC Rcd at 9225-9227, paras. 67-74.                     
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7.                             47 CFR 54.8(a)(1), (d).                     
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8.                             Second Report and Order, 18 FCC Rcd at 9226, para. 69; 47 CFR 54.8(e)(1).                     
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9.                             47 CFR 54.8(e)(4).                     
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10.                             Id.                    
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11.                             47 CFR 54.8(e)(5).                     
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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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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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14.                             See Second Report and Order, 18 FCC Rcd at 9226, para. 70; 47 CFR 54.8(e)(3).                     
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15.                             Second Report and Order, 18 FCC Rcd at 9227, para. 74.                    
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16.                             See id., 18 FCC Rcd at 9226, para. 70; 47 CFR 54.8(e)(5).                     
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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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18.                             Second Report and Order, 18 FCC Rcd at 9225, para. 67; 47 CFR 54.8(d), 54.8(g).                     
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19.                             Id.                     
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[FR Doc. E8-19878 Filed 8-26-08; 8:45 am] 

BILLING CODE 6712-01-P