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Federal Communications Commission
Washington, D.C. 20554
September 11, 2003
DA 03-2882
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Duane Maynard
Howe Electric, Inc.
4682 E. Olive Ave.
Fresno, CA 93702
Re: Notice of Suspension and of Proposed Debarment,
File No. EB-03-IHD-0387.
Dear Mr. Maynard:
The Federal Communications Commission (``FCC'' or
``Commission'') has received notice of your August 26, 2003
conviction pursuant to 15 U.S.C. § 1 for bid rigging.1
Consequently, pursuant to 47 C.F.R. § 54.521, this letter
constitutes official notice of your suspension from the schools
and libraries universal service support mechanism. In addition,
the Enforcement Bureau (``Bureau'') hereby notifies you that we
are commencing debarment proceedings against you.2
I. Notice of Suspension
Pursuant to section 54.521(a)(4) of the Commission's rules,3
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.4 Your suspension becomes effective
upon the earlier of your receipt of this letter or publication of
notice in the Federal Register.5
Suspension is immediate pending the Bureau's final debarment
determination. 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.6 Such requests, however, will not ordinarily be granted.7
The Bureau may reverse or limit the scope of suspension only upon
a finding of extraordinary circumstances.8 Absent extraordinary
circumstances, the Bureau will decide any request for reversal or
modification of suspension within 90 days of its receipt of such
request.9
II. Notice of Proposed Debarment
II.A. Reasons for and Cause of Debarment
The Commission's rules establish 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.10 On August 26, 2003, you admitted
to participating in a combination and conspiracy with West Fresno
Elementary School District representatives, a consultant and
others representing potential competitors, on behalf of your
employer, Howe Electric, Inc.11 Specifically, you admitted that
you and the other co-conspirators combined, conspired, and agreed
that: (1) Howe Electric, Inc. would be the successful bidder to
provide goods and services for the schools and libraries E-Rate
project in the district, while no other co-conspirator companies
would bid for the project; (2) certain co-conspirator companies
would be Howe Electric's subcontractors; and (3) any competing
bids would be disqualified as nonresponsive.12 These actions
constitute the conduct or transactions upon which this debarment
proceeding is based.13 Moreover, your conviction on the basis of
these acts falls within the categories of causes for debarment
defined in section 54.521(c) of the Commission's rules.14
Therefore, pursuant to section 54.521(a)(4) of the Commission's
rules, your conviction requires the Bureau to commence debarment
proceedings against you.
II.B. Debarment Procedures
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.15 Absent
extraordinary circumstances, the Bureau will debar you.16 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.17 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 its decision in the Federal Register.18
II.C. Effect of Debarment
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 at
least three years from the date of debarment.19 The Bureau may,
if necessary to protect the public interest, extend the debarment
period.20
Please direct any responses to the following address:
Diana Lee
Federal Communications Commission
Enforcement Bureau
Investigations and Hearings Division
Room 6-C326
445 12th Street, S.W.
Washington, D.C. 20554
If you submit your response via hand-delivery or non-United
States Postal Service delivery (e.g., Federal Express, DHL,
etc.), please send your response to Ms. Lee at the following
address:
Federal Communications Commission
9300 East Hampton Drive
Capitol Heights, MD 20743
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 William Davenport by telephone at (202) 418-1420 and
by e-mail at william.davenport@fcc.gov.
Sincerely yours,
Maureen F. Del Duca
Chief
Investigations and Hearings
Division
Enforcement Bureau
cc: Kenneth Alan Reed, Law Office of Kenneth Alan Reed
Kristy Carroll, USAC
_________________________
1 Any further reference in this letter to ``your conviction''
refers to your August 26, 2003 guilty plea and conviction of this
count based on your participation, on behalf of your employer,
Howe Electric, Inc., in a ``combination and conspiracy to
suppress bidding for the West Fresno Elementary School District
E-Rate project and to allocate among conspirators the
responsibility for supplying goods and services for that
project.'' See United States v. Maynard, Criminal Docket No.
1:03cr5325, Information at 2-3 (E.D.Cal. filed August 19, 2003)
(``Maynard Felony Information''); United States v. Maynard,
Criminal Docket No. 1:03cr5325, Plea Agreement at 6-7 (E.D.Cal.
filed August 26, 2003) (``Maynard Plea Agreement'').
2 47 C.F.R. § 54.521; 47 C.F.R. § 0.111(a)(14) (delegating to
the Enforcement Bureau authority to resolve universal service
suspension and debarment proceedings pursuant to 47 C.F.R. §
54.521).
3 47 C.F.R. § 54.521(a)(4); Schools and Libraries Universal
Service Support Mechanism, Second Report and Order and Further
Notice of Proposed Rulemaking, 18 FCC Rcd 9202, 9225-27, ¶¶ 67-74
(2003) (``Second Report and Order''); id. at Appendix B, 18 FCC
Rcd at 9263-65.
4 Second Report and Order, 18 FCC Rcd at 9225, ¶ 67; 47 U.S.C. §
254; 47 C.F.R §§ 54.502-54.503; 47 C.F.R. § 54.521(a)(4).
5 Second Report and Order, 18 FCC Rcd at 9226, ¶ 69; 47 C.F.R. §
54.521(e)(1).
6 Second Report and Order, 18 FCC Rcd at 9226, ¶ 70; 47 C.F.R. §
54.521(e)(4).
7 Second Report and Order, 18 FCC Rcd at 9226, ¶ 70.
8 47 C.F.R. § 54.521(f).
9 See Second Report and Order, 18 FCC Rcd at 9226, ¶ 70; 47
C.F.R. §§ 54.521(e)(5), 54.521(f).
10Second Report and Order, 18 FCC Rcd at 9225, ¶ 66.
11 See United States v. Maynard, Criminal Docket No.
1:03cr5325, Docket Proceedings (E.D.Cal. filed August 26, 2003).
12See Maynard Felony Information at 3; Maynard Plea Agreement at
6-7. The conspiracy violated the Commission's competitive bid
requirements for telecommunications services supported by the
schools and libraries E-Rate program. 47 C.F.R. § 54.504.
13Second Report and Order, 18 FCC Rcd at 9226, ¶ 70; 47 C.F.R. §
54.521(e)(2)(i).
14``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 C.F.R. § 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 C.F. R.] §
54.500 et seq.).'' 47 C.F.R. § 54.521(a)(1).
15See Second Report and Order, 18 FCC Rcd at 9226, ¶ 70; 47
C.F.R. §§ 54.521(e)(2(i), 54.521(e)(3).
16Second Report and Order, 18 FCC Rcd at 9227, ¶ 74.
17See Second Report and Order, 18 FCC Rcd at 9226, ¶ 70; 47
C.F.R. § 54.521(e)(5).
18Id. 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. §
54.521(f).
19Second Report and Order, 18 FCC Rcd at 9225, ¶ 67; 47 C.F.R.
§§ 54.521(d), 54.521(g).
20Id.