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DA 03-4089
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Duane Maynard
Howe Electric, Inc.
4682 E. Olive Ave.
Fresno, CA 93702
Re: Notice of Debarment, File No. EB-03-IHD-0387
Dear Mr. Maynard:
Pursuant to section 54.521 of the rules of the Federal
Communications Commission (the ``Commission''), by this Notice of
Debarment you are hereby debarred from the schools and libraries
universal service support mechanism for a period of three years.1
On September 11, 2003, the Enforcement Bureau (the
``Bureau'') sent you a Notice of Suspension and Proposed
Debarment (the ``Notice of Suspension'').2 That Notice of
Suspension was published in the Federal Register on October 2,
2003.3 The Notice of Suspension suspended you from the schools
and libraries universal service support mechanism4 and described
the basis for your proposed debarment,5 the applicable debarment
procedures,6 and the effect of debarment.7
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.8 The Commission did not receive any
such opposition.
As discussed in the Notice of Suspension, on August 26,
2003, you pled guilty 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.
(``Howe''), so that: (1) Howe 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's subcontractors; and (3) any competing bids would
be disqualified as nonresponsive.9 Such conduct constitutes the
basis for your debarment, and your conviction falls within the
categories of causes for debarment under section 54.521(c) of the
Commission's rules.10 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.11
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.''12
Sincerely yours,
William H. Davenport
Deputy Chief
Investigations and Hearings
Division
Enforcement Bureau
cc: Kenneth Alan Reed, Law Office of Kenneth Alan Reed (Via
Certified Mail, Return Receipt Requested)
Kristy Carroll, USAC (Via Email)
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.13
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.14
I. Notice of Suspension
Pursuant to section 54.521(a)(4) of the Commission's
rules,15 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.16 Your suspension becomes effective
upon the earlier of your receipt of this letter or publication of
notice in the Federal Register.17
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.18 Such requests, however, will not ordinarily be
granted.19 The Bureau may reverse or limit the scope of
suspension only upon a finding of extraordinary circumstances.20
Absent extraordinary circumstances, the Bureau will decide any
request for reversal or modification of suspension within 90 days
of its receipt of such request.21
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.22 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.23 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.24 These actions
constitute the conduct or transactions upon which this debarment
proceeding is based.25 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.26
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.27 Absent
extraordinary circumstances, the Bureau will debar you.28 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.29 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.30
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.31 The Bureau may,
if necessary to protect the public interest, extend the debarment
period.32
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 See 47 C.F.R. §§ 0.111(a)(14), 54.521.
2 Letter from Maureen F. Del Duca, Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal
Communications Commission, to Duane Maynard, Notice of
Suspension and Proposed Debarment, 18 FCC Rcd 18684 (2003).
3 68 Fed. Reg. 56839 (Oct. 2, 2003).
4 See Notice of Suspension, 18 FCC Rcd at 18684-85
(imposing suspension pending the Bureau's final debarment
determination) (Attachment 1).
5 See id., 18 FCC Rcd at 18685-86 (describing the basis for
your proposed debarment).
6 See id., 18 FCC Rcd at 18686 (describing procedures to
contest proposed debarment).
7 See id. (describing effect of proposed debarment).
8 See 47 C.F.R. § 54.521(e)(3) and (4). That date occurred
no later than November 1, 2003. See supra note 3.
9 Notice of Suspension, 18 FCC Rcd at 18685.
10 Notice of Suspension, 18 FCC Rcd at 18685-86; 47 C.F.R.
§ 54.521(c).
11 See Notice of Suspension, 18 FCC Rcd at 18686.
12 See 47 C.F.R. §§ 54.521(a)(1), 54.521(a)(5), 54.521(d);
Notice of Suspension, 18 FCC Rcd at 18686.
13Any 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'').
1447 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).
1547 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.
16Second 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).
17Second Report and Order, 18 FCC Rcd at 9226, ¶ 69; 47
C.F.R. § 54.521(e)(1).
18Second Report and Order, 18 FCC Rcd at 9226, ¶ 70; 47
C.F.R. § 54.521(e)(4).
19Second Report and Order, 18 FCC Rcd at 9226, ¶ 70.
2047 C.F.R. § 54.521(f).
21See Second Report and Order, 18 FCC Rcd at 9226, ¶ 70; 47
C.F.R. §§ 54.521(e)(5), 54.521(f).
22Second Report and Order, 18 FCC Rcd at 9225, ¶ 66.
23 See United States v. Maynard, Criminal Docket No.
1:03cr5325, Docket Proceedings (E.D.Cal. filed August 26,
2003).
24See 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.
25Second Report and Order, 18 FCC Rcd at 9226, ¶ 70; 47
C.F.R. § 54.521(e)(2)(i).
26``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).
27See Second Report and Order, 18 FCC Rcd at 9226, ¶ 70; 47
C.F.R. §§ 54.521(e)(2(i), 54.521(e)(3).
28Second Report and Order, 18 FCC Rcd at 9227, ¶ 74.
29See Second Report and Order, 18 FCC Rcd at 9226, ¶ 70; 47
C.F.R. § 54.521(e)(5).
30Id. 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).
31Second Report and Order, 18 FCC Rcd at 9225, ¶ 67; 47
C.F.R. §§ 54.521(d), 54.521(g).
32Id.