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Statement of Commissioner Michael J. Copps
Statement of Commissioner Jonathan S. Adelstein
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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
File No. EB-06-IH-1392
NextiraOne, LLC )
)
)
NOTICE OF DEBARMENT AND ORDER DENYING WAIVER PETITION
Adopted: August 24, 2006 Released: January 22, 2007
By the Commission: Commissioners Copps and Adelstein concurring and
issuing separate statements.
I. INtroduction
1. In this Notice of Debarment and Order Denying Waiver Petition
("Notice"), we debar NextiraOne, LLC ("NextiraOne") from all
activities associated with the schools and libraries universal service
support mechanism ("E-Rate program"). NextiraOne pled guilty to and
was convicted of federal wire fraud in violation of 18 U.S.C. S1343
for activities in connection with the E-Rate program. We find
NextiraOne's conduct is egregious and merits debarment. In light of
several important factors, however, we limit the debarment period to
one year from the effective date of this Notice. These factors include
NextiraOne's cooperation with the U.S. Department of Justice ("DOJ")
during the investigation and prosecution of its wrongdoing, explained
in the record of the debarment proceeding; the mitigating steps that
NextiraOne has taken to remedy its past conduct and prevent future
problems with its participation in the E-Rate program; and the fact
that NextiraOne states that it has voluntarily ceased to participate
in the E-Rate program for more than three years already.
II. BackGRound
2. The E-Rate program is one of several federal programs designed to
promote and support the goal of universal service, i.e., making
telecommunications available to all Americans. Each of these programs
is funded by the Universal Service Fund ("USF"), which is administered
by the Universal Service Administrative Company ("USAC"). The
resources for the E-Rate program in particular are designed to fulfill
the principle expressed in section 254(b)(6) of the Communications Act
of 1934 that "[e]lementrary and secondary schools and classrooms, . .
. and libraries should have access to advanced telecommunications
services."
3. As part of an effort to protect the resources of the E-Rate program
from waste, fraud, and abuse, the Commission in 2003 adopted rules for
suspending and debarring persons convicted of, or held civilly liable
for, the commission or attempted commission of fraud and other similar
offenses connected with the E-Rate program. The purpose of suspension
and debarment is to prevent such persons from further participation in
the E-Rate program for a certain period of time, and thereby to
protect the USF.
4. Pursuant to our rules, the Commission "shall suspend and debar"
persons convicted of, or held civilly liable for, certain
fraud-related offenses involving the E-Rate program, "absent
extraordinary circumstances." Such offenses include the "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." Upon learning that a person has been convicted of or found
liable for one of these offenses, our rules contemplate that the
Commission will immediately suspend the person from the E-Rate
program, provide "prompt notice" to that effect, and initiate
debarment proceedings. Thereafter, our rules provide the suspended
person thirty days to contest suspension or the proposed debarment, or
seek to limit its scope, but state that relief from suspension "will
not ordinarily be granted." Once we have debarred a person, our rules
state that the person will be prohibited from involvement with the
E-Rate program for three years, although the rules contemplate that
the Commission might modify the period in particular circumstances.
5. Since the debarment rule became effective, eight individuals and four
corporations have been convicted of fraud-related offenses arising out
of activities associated with the E-Rate program. After each
conviction, the Commission initiated debarment proceedings against the
perpetrators. The Commission has debarred the eight individuals, and
two corporations, and today resolves the debarment proceedings against
two more corporations, NextiraOne in this Order and Premio, Inc. in a
separate notice.
6. NextiraOne is a Delaware limited liability company formed in April
2001 when Platinum Equity, LLC acquired and integrated Williams
Communications Solutions, LLC ("WCS") and another entity. At the time
Platinum acquired WCS, the latter participated in the E-Rate program
by selling internal connections to schools and libraries. After
acquisition, Platinum reorganized WCS and created a new group, the
Strategic Technology Consulting Practice, which included employees who
had been involved in WCS' E-rate business, and provided educational
consulting services for a fee.
7. On April 20, 2006, NextiraOne pled guilty to and was subsequently
convicted of federal wire fraud in violation of 18 U.S.C. S 1343 for
activities in connection with its participation in the E-Rate program
with the Oglala Nation Education Coalition ("ONEC") schools on the
Pine Ridge Reservation in South Dakota. The activities that led to
NextiraOne's conviction took place from at least December 2000 to at
least December 2002, and thus involved both NextiraOne and its
predecessor, WCS. Among other things, NextiraOne or WCS: (1) falsely
promised ONEC schools that they could participate in the E-Rate
program for free; (2) guided ONEC in submitting E-Rate applications to
USAC that contained non-competitive manufacturer "list" prices; (3)
billed USAC for equipment specified that had not been delivered; and
(4) billed USAC for an item not eligible for E-Rate support, and also
made it appear that NextiraOne had billed ONEC for the non-discounted
portion of equipment and services funded by E-Rate when in fact it had
not. As a result of its fraudulent conduct, NextiraOne over-billed the
E-Rate program in excess of $1 million.
8. Shortly before entering its guilty plea, on April 14, 2006, NextiraOne
filed a Petition for Waiver of the Commission's debarment rules. That
same day, as obligated by the Plea Agreement and upon NextiraOne's
request, the United States Department of Justice ("DOJ") filed a
letter explaining NextiraOne's cooperation throughout the government's
investigation into NextiraOne's E-Rate activities.
9. On April 28, 2006, consistent with the Commission's debarment rule,
the Enforcement Bureau issued a notice immediately suspending
NextiraOne from participating in the E-Rate program and initiating
debarment proceedings against the company. In issuing the notice, the
Bureau acknowledged but did not decide the issues raised by the Waiver
Petition and the DOJ letter, and instead stated that it would consider
the arguments and evidence presented in both filings in the debarment
proceeding.
10. Two days later, on April 30, 2006, Black Box Corporation ("Black Box")
acquired NextiraOne. Black Box is "the world's largest technical
services company dedicated to designing, building, and maintaining
data and voice infrastructure systems," and "serves more than 150,000
clients in 141 countries throughout the world." In response to the
suspension notice, on May 26, 2006, Black Box and NextiraOne
(collectively "NextiraOne") submitted additional information to
supplement the Waiver Petition.
III. DISCUSSION
11. In this Notice, we debar NextiraOne from participating in the E-Rate
program because of its conviction on a fraud-related offense involving
its participation in the E-Rate program, finding no extraordinary
circumstances exist to avoid or waive debarment, or reverse
suspension. We find that NextiraOne's conduct merits a debarment of at
least three years, as contemplated by our debarment rule, but in light
of several important factors, we limit the debarment to one year.
12. NextiraOne argues that several factors constitute "extraordinary
circumstances" sufficient to avoid debarment. First, NextiraOne argues
that its cooperation with DOJ was extraordinary, in that upon learning
of the government's investigation, it undertook an "extensive and
costly internal review of its E-Rate activities," involving the review
of voluminous numbers of documents and records, hiring a forensic
consulting firm to evaluate the scope of the fraud involved,
identifying material witnesses, and making a wide variety of materials
and witnesses available to the government. Second, NextiraOne argues
that it assumed full responsibility for its misconduct and took swift
remedial action to correct it by dismantling the affected business
unit, firing or laying off the employees involved, implementing a
corporate code of conduct, and retaining new management. Third,
NextiraOne points out that it has voluntarily elected not to
participate in the E-Rate program for more than three years through
its abandonment of outstanding requests for reimbursement and
submission of no new claims in Funding Year 6 (2003-04), and as well
as its decision not to submit any bids, perform any services, or seek
any funding in connection with the E-Rate program since then. Fourth,
NextiraOne suggests that its acquisition by Black Box further counsels
against debarment, because that company and its personnel were not
involved in NextiraOne's fraud, and its management, oversight, and
philosophy are certain to protect the E-Rate program from waste,
fraud, and abuse.
13. We reject NextiraOne's arguments and find that NextiraOne has not
satisfied the high standards necessary to avoid debarment or reverse
suspension. When it adopted the debarment rule, the Commission
explicitly stated that "[a]lthough the governmentwide rules [for
debarment] provide that agencies `may' debar or suspend persons
convicted or held civilly liable, we conclude that a rule requiring
the Commission to suspend and debar such persons absent extraordinary
circumstances will better serve the Commission's goal of limiting
waste, fraud, and abuse." The text of the Commission's rule expressly
states that the agency "shall suspend and debar" for conviction of any
of the enumerated offenses, "absent extraordinary circumstances." To
give context to "extraordinary circumstances," the Commission gave but
one example: "reversal of the conviction or civil judgment upon which
the debarment was based shall constitute extraordinary circumstances."
The Commission thus described suspension and debarment as "automatic
actions" that are "an appropriate and prudent means of maintaining the
integrity of the schools and libraries support mechanism." As a
result, since the debarment rules became effective, the Commission has
been presented with the convictions of eight individuals and
(excluding NextiraOne and Premio, Inc.) two corporations for fraud in
connection with their participation in the E-Rate program, and the
Commission has debarred all of them - notwithstanding that each of the
corporations argued that facts similar to those presented by
NextiraOne justified avoidance of debarment. As we have previously
stated, we do not consider the actions like those taken by NextiraOne
- cooperating with DOJ, accepting full responsibility for the fraud,
implementing protective remedial measures - to be extraordinary
circumstances in our decision to debar.
14. The simple fact remains that NextiraOne has pled guilty to and was
convicted of wire fraud, and that fraud resulted in overcharging the
E-Rate program more than $1 million. The conduct for which NextiraOne
was convicted is a serious offense against the E-Rate program and one
of the express "causes for suspension and debarment" listed in section
54.521(c) of our rules. NextiraOne has not shown that extraordinary
circumstances exist to deviate from the "automatic action" of
debarment. Strict application of the debarment rule to remove bad
actors from the program for a period of time is necessary to protect
the integrity of the program, and to guard against the possibility of
additional waste, fraud, and abuse. Accordingly, we debar NextiraOne.
15. We also deny NextiraOne's request to waive the debarment rule in this
case. Those who seek to avoid debarment by requesting waiver of the
rule must meet a similarly high burden. Section 1.3 of the
Commission's rules governs petitions for waiver generally, and
provides that a waiver may be granted upon "good cause shown." Because
Commission rules are presumed valid, the petitioner bears a heavy
burden. The Commission may exercise its discretion to waive a rule
"only if special circumstances warrant a deviation from the general
rule and such a deviation will serve the public interest." We find
that the requisite special circumstances are not present here. For the
reasons explained below, however, we limit NextiraOne's debarment
period to one year. We find, based on the unique circumstances of this
case, imposing a one-year debarment period, with additional
precautionary measures, is in the public interest.
16. Although we deny NextiraOne's request for waiver of the debarment rule
and find that NextiraOne's actions do not constitute the extraordinary
circumstances necessary to avoid debarment, we do find that its
actions justify a reduction of our standard debarment period of three
years. In our recent NEC Debarment Order and Inter-Tel Debarment
Notice, we relied on the following facts to reduce the debarment
period to six months and one year, respectively: (1) DOJ submitted
letters indicating that the corporations had cooperated with the
government during its investigation, and that such cooperation was
valuable in the detection and prosecution of E-Rate fraud; (2) the
corporations accepted full responsibility for their actions by
compensating the USF for their wrongdoing, and implemented extensive
remedial measures to protect the fund in the future; and (3) the
corporations had not participated in the E-Rate program for some
length of time already. Each of these facts exists here as well, and
we therefore limit NextiraOne's debarment period to one year.
17. First, DOJ submitted a letter to the Commission documenting
NextiraOne's cooperation with the investigation of NextiraOne. DOJ
characterized NextiraOne's cooperation as "extensive," and "helpful in
understanding the events that occurred at Pine Ridge and at other
school districts." DOJ explained that the company not only produced an
extensive number of documents and encouraged employees to come forward
for interviews, but also took the unusual and helpful step of waiving
its work product privilege to make its own interview notes available
to the government. In addition, NextiraOne has committed in its plea
and settlement agreements with DOJ to ongoing cooperation in this and
other current federal investigations of E-Rate matters and related
litigation.
18. Second, as DOJ also observed in its letter, NextiraOne has accepted
full responsibility for its past actions, and implemented remedial
measures to protect the fund in the future. As DOJ explained,
"[t]hrough the payment of almost $5 million in a criminal fine, civil
settlement, and restitution to the Pine Ridge schools, NextiraOne has
provided full reimbursement to the Universal Service Fund and to the
schools that were victimized by the fraud." In addition, NextiraOne
terminated all of the employees involved in the fraud, implemented a
code of conduct, and established a compliance hotline with a
no-retaliation policy. Moreover, NextiraOne is now part of Black Box,
which has additional ethical standards, to which NextiraOne is
subject. Finally, should NextiraOne participate in the E-Rate program
within five years of executing its plea agreement, it has agreed to do
so only under the following circumstances: (1) appointing a compliance
officer; (2) undertaking internal monitoring and conducting audits to
ensure compliance with E-Rate application and bidding requirements and
procedures; (3) implementing a continuing education and training
program for E-Rate rules, regulations, and procedures; (4)
coordinating with key executives in the company's various functional
units; (5) disclosing any program violations to higher level
management; and (6) periodically reporting to the Commission's Office
of Inspector General.
19. In considering the appropriate debarment period, we also note that
NextiraOne has not participated in the E-Rate program for at least
three years. NextiraOne has explained that in Funding Year 6
(2003-04), it abandoned pending requests for reimbursement and did not
submit any invoices, and in Funding Years 7, 8, and 9 (2004-05,
2005-06, 2006-07), it has not submitted any bids to perform E-Rate
services, has not performed any E-Rate services, and has not requested
or received any E-Rate funds.
20. Under these circumstances, where DOJ has recognized and valued the
company's extensive and early cooperation, the company has remedied
fully its past misconduct and implemented extensive remedial measures
designed to protect the USF in the future, and the company has not
participated in the E-Rate program for more than three years, we limit
NextiraOne's debarment period to one year. This is the same debarment
period we imposed in our recent Inter-Tel Debarment Notice. We decline
to reduce the debarment period to six months as we did in the NEC
Debarment Order, because we do not find that NextiraOne's cooperation
with DOJ, extensive as it was, to be of the same character or value to
the government in terms of eliminating waste, fraud, and abuse in the
E-Rate program, which is the purpose of our debarment rule. As we
explained in both the Inter-Tel and NEC debarment decisions, DOJ gave
special weight to NEC's cooperation as the first cooperator in an
antitrust conspiracy, which led to the discovery of additional
misconduct that might not have been detected absent the company's
cooperation.
21. As part of our decision to limit the debarment periods of NEC and
Inter-Tel, we imposed additional precautionary measures to protect the
E-Rate program. NextiraOne states that it has no current intention to
participate in the E-Rate program. In the event that NextiraOne
re-enters the E-Rate program within five years of executing the plea
agreement, however, we impose those same additional precautionary
measures to protect the program. First, we order USAC to review with
heightened scrutiny NextiraOne's applications submitted during the
first two funding years after re-entry. Second, we order USAC to
conduct automatic annual audits regarding NextiraOne's compliance with
applicable laws and Commission rules governing the E-Rate program, for
each of the first two funding periods upon NextiraOne's re-entry.
22. Finally, we address whether the debarment of NextiraOne, LLC extends
to NextiraOne Federal, LLC ("NXOF"). At the time of NextiraOne's
conviction, which triggered the Commission's debarment rule, NXOF was
a subsidiary of NextiraOne. Our debarment rule states that "suspension
and debarment of a person other than an individual constitutes
suspension and debarment of all divisions and/or other organizational
elements from participation in the program for the suspension and
debarment period, unless the notice of suspension and proposed
debarment is limited by its terms to one or more specifically
identified individuals, divisions or other organizational elements or
specific types of transactions." Thus, absent any contrary limitation,
today's debarment action would be applicable to NXOF.
23. In support of the contention that the debarment should not include
NXOF, NXOF submitted information explaining in detail how the two
companies are managed and operate independently. Specifically, at the
time of NextiraOne's conviction, Platinum Equity, LLC ("Platinum"),
owned NextiraOne, which owned 100% of Timeplex, LLC, which in turn
owned 100% of NXOF. Beginning no later than the third quarter of 2004,
NXOF reported directly to Platinum, both in terms of financial
information and management, and NXOF had a sole manager (director) who
was not a NextiraOne employee. In addition, as of NextiraOne's
conviction date, the two companies performed certain services for one
another only through arms-length transactions at pre-determined
commercial rates, and pursuant to purchase orders for services and
invoices for payment. In sum, "as of April 20, 2006, the date of
NextiraOne's conviction, NXOF did not report in any form to
NextiraOne, NXOF and NextiraOne had separate managers (directors),
NXOF was not controlled managerially or financially by NextiraOne, and
none of NXOF's officers were employees of NextiraOne. . . . All
business dealings between NXOF and NextiraOne were done pursuant to
arms-length written agreement at commercial rates." Since the date of
NextiraOne's conviction, the two companies have continued to operate
independently and separately, and NXOF has ceased to be a subsidiary
of NextiraOne. In addition, NextiraOne points out that DOJ expressly
acknowledged in the Plea Agreement that NXOF operated as a separate
company at the time of the Plea and was not involved in any of the
events that led to NextiraOne's conviction.
24. NXOF further states that, because it operates independently of
NextiraOne, debarment of NXOF is not necessary to protect the E-Rate
program, and in fact would be punitive. NXOF explains that because
100% of its business is to provide goods and services to the federal
government, "debarment of NXOF would have devastating business
consequences for the company." NXOF has a number of outstanding
contracts and proposals that it states would be jeopardized by its
debarment, with the result that "[t]he reputational harm to NXOF would
be irreparable" and "NXOF's 162 highly skilled employees would be in
jeopardy of losing their jobs."
25. Under these specific circumstances, we clarify that NXOF is not
subject to the NextiraOne debarment. Although NOXF appeared to be a
division and/or other organizational unit of NextiraOne as of the date
of NextiraOne's conviction, we conclude that NextiraOne did not and
does not control NXOF. In addition, NXOF was not involved in the
conduct that led to NextiraOne's conviction, and, in fact, has never
participated in the E-Rate program. As a result, extending
NextiraOne's debarment to encompass NXOF is not necessary to protect
the integrity of the E-Rate program; rather, debarment of NXOF would
interfere with its legitimate business, completely unrelated to
E-Rate. Accordingly, we clarify that NextiraOne's debarment does not
include NXOF.
IV. CONCLUSION
26. Based on the foregoing and to protect the integrity of the E-Rate
program, including the investments made by American consumers to
benefit this nation's deserving school children, NextiraOne, including
its successors and assigns, is hereby debarred from the E-Rate program
for one year, effective August 24, 2006, the day NextiraOne received
notice of the decision to debar. During the period in which NextiraOne
will serve its debarment, NextiraOne, including its successors and
assigns, is prohibited from all activities "associated with or related
to the schools and libraries support mechanism," or E-Rate program,
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." We will continue to take
appropriate actions in future cases as warranted by the particular
circumstances to protect the integrity of the program.
V. ORDERING CLAUSES
27. Accordingly, IT IS ORDERED, pursuant to section 54.521 of the
Commission's rules, 47 C.F.R. S 54.521, that NextiraOne, LLC.,
including its successors and assigns, IS DEBARRED from the schools and
libraries universal service support mechanism for one year, effective
August 24, 2006.
28. IT IS FURTHER ORDERED that, in the event that NextiraOne re-enters the
E-Rate program within five years after executing the plea agreement,
USAC shall review with heightened scrutiny NextiraOne's applications
submitted during the first two funding years upon its re-entry into
the E-Rate program.
29. IT IS FURTHER ORDERED that, in the event NextiraOne re-enters the
E-Rate program within five years after executing the plea agreement,
USAC shall conduct automatic annual audits on NextiraOne's E-Rate
activities during the first two funding years upon its re-entry into
the E-Rate program.
30. IT IS FURTHER ORDERED, pursuant to sections 1 and 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. SS 151 and 154(i),
and section 1.3 of the Commission's rules, 47 C.F.R. S 1.3, that the
Petition for Waiver filed by NextiraOne, LLC on April 14, 2006, is
DENIED, as described herein.
31. IT IS FURTHER ORDERED that the Enforcement Bureau staff shall send, by
certified mail/return receipt requested, a copy of this Notice of
Debarment and Order Denying Waiver Petition to James J. Regan, Crowell
and Moring, LLP, Counsel for NextiraOne, LLC, 1001 Pennsylvania
Avenue, N.W., Washington, DC 20004-2595.
32. IT IS FURTHER ORDERED, pursuant to section 54.521 of the Commission's
rules, 47 C.F.R. S 54.521, that this Notice of Debarment and Order
Denying Waiver Petition SHALL BE PUBLISHED in the Federal Register.
FEDERAL COMMUNICATIONS COMMISSION
Marlene Dortch
Secretary
CONCURRING STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: NextiraOne, LLC, File No. EB-06-IH-1392
By ensuring that schools and libraries are connected with the Internet,
the E-Rate program continues to perform the critical function of helping
to prepare our nation's children to succeed in the Digital Age. Nowhere is
this truer than on tribal lands where technology plays a vital role in
overcoming geographic, economic, and historical hardships. There are many
people in the Schools and Libraries Division, at the FCC and Justice
Department, and elsewhere, to be commended for their ongoing oversight of
the program to ensure that limited resources go to those who need them
most. The conviction and one year debarment of NextiraOne from the E-Rate
program are evidence of the ongoing effort to root out waste, fraud, and
abuse. While there were mitigating circumstances in this case to support
the one year debarment period, I believe that a longer period may have
been warranted given the severity of the company's actions and the
opportunity to send a message to E-Rate participants that violations of
the program will not by tolerated by the FCC. I therefore concur in this
Order.
SEPARATE STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
CONCURRING
Re: NextiraOne, LLC, File No. EB-06-IH-1392
Since its inception, the universal service support mechanism for schools
and libraries (commonly referred to as the E-rate program) has opened up a
new world of learning and opportunity for millions of school children and
library patrons. To ensure the continued success of the E-Rate program, we
must remain committed to monitoring, auditing, reviewing and reinforcing
the program. A critical part of our Commission oversight is the use of
debarment, which prohibits bad actors from participating in the program.
Accordingly, I support our decision in this Order to debar NextiraOne from
all involvement in the E-Rate program.
I concur in, rather than approve, this Order because I would have
supported a longer debarment period. The Commission's rules provide for a
debarment period of three years, which may be extended to protect the
public interest or reduced upon a finding of extraordinary circumstances.
I note that the Department of Justice has encouraged the Commission to
exercise our debarment policy in a way that encourages early and complete
cooperation from defendants, and I recognize that the Commission may take
into account payment of fines and restitution, the length of time that a
provider has not participated, and most importantly a high degree of
cooperation with law enforcement. Even weighing these factors, the
one-year debarment period adopted in this Order falls short, given the
scope and seriousness of the fraud-related activities in this case.
Schools do not have unlimited resources, and I am concerned about the
effect that fraudulent activity like that perpetrated by NextiraOne can
have for school systems like the Oglala Nation Education Coalition and
their students. In this case, a longer debarment period would have sent a
stronger and clearer message that fraud will not be tolerated.
See 47 C.F.R. S 54.521.
18 U.S.C. S 1343.
47 U.S.C. S 254(b)(6).
47 C.F.R. S 54.521; 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").
Second Report and Order, 18 FCC Rcd at 9225, P 66.
47 C.F.R. S 54.521(b). The rule defines a "person" as "any individual,
group of individuals, corporation, partnership, association, unit of
government or legal entity, however organized." 47 C.F.R. S 54.521(a)(6).
Opting for a stringent debarment rule, the Commission explicitly rejected
a government-wide standard providing that an entity "may" be debarred
based on a conviction or civil judgment. See Second Report and Order, 18
FCC Rcd at 9227, P 74.
47 C.F.R. S 54.521(c).
Id. S 54.521(e).
Id. S 54.521(e)(4).
Id. S 54.521(f) (reverse or limit the period of suspension or debarment
"upon a finding of extraordinary circumstances"); id. S 54.521(g)
(lengthen or extend the period "if necessary to protect the public
interest").
Letter from Maureen F. Del Duca, Chief, Investigations and Hearings
Division, Enforcement Bureau, to Oscar Alvarez, Connect2 Internet Network,
Inc., 18 FCC Rcd 26716, Notice of Debarment, December 23, 2003; Letter
from Maureen F. Del Duca, Chief, Investigations and Hearings Division,
Enforcement Bureau, to John Angelides, Connect2 Internet Network, Inc., 18
FCC Rcd 26722, Notice of Debarment, December 23, 2003; Letter from Maureen
F. Del Duca, Chief, Investigations and Hearings Division, Enforcement
Bureau, to Duane Maynard, Howe Electric, Inc., 18 FCC 26729, Notice of
Debarment, December 23, 2003; Letter from William H. Davenport, Chief,
Investigations and Hearings Division, Enforcement Bureau, to John Dotson,
19 FCC Rcd 23636, Notice of Debarment, December 6, 2004; Letter from
William H. Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, to John Henry Weaver, FCC Rcd 10925, Notice of
Debarment, June 23, 2005; Letter from William H. Davenport, Chief,
Investigations and Hearings Division, Enforcement Bureau, to Haider
Bokhari, 20 FCC Rcd 10941, Notice Debarment, June 23, 2005; Letter from
William H. Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, to Qasim Bokhari, 20 FCC Rcd 10931, Notice of
Debarment, June 23, 2005; Letter from William H. Davenport, Chief,
Investigations and Hearings Division, Enforcement Bureau, to Ronald R.
Morrett, 20 FCC Rcd 14321, Notice of Debarment, August 30, 2005.
See NEC-Business Network Solutions, Inc., Notice of Debarment and Order
Denying Waiver Petition, FCC 06-91 (rel. June 30, 2006) ("NEC Debarment
Order"); Inter-Tel Technologies, Inc., Notice of Debarment, FCC 06-92
(rel. June 30, 2006) ("Inter-Tel Debarment Notice).
See Letter from Kris A. Monteith, Chief, Enforcement Bureau, to Robert J.
Buhay, Chief Financial Officer, NextiraOne, LLC, 21 FCC Rcd 4435, Notice
of Suspension and Initiation of Debarment Proceedings, April 28, 2006
("NextiraOne Suspension Notice"), 71 Fed. Reg. 27254-56 (May 10, 2006).
Our rules contemplate that notice of debarment will be provided within 90
days of receipt of information submitted by the respondent in response to
a suspension notice. 47 C.F.R. S 54.521(e)(5). NextiraOne filed its
Opposition Petition on May 26, 2006; 90 days thereafter is August 24,
2006. See also infra, note 67.
See Premio, Inc., Notice of Debarment, FCC 06-177 (rel. Jan. 22, 2007);
Letter from William H. Davenport, Chief, Investigations and Hearings
Division, Enforcement Bureau, to Mr. Tom Tsao, Vice President, Premio,
Inc., 21 FCC Rcd 2128, Notice of Suspension and of Proposed Debarment,
February 28, 2006.
NextiraOne, LLC, Petition for Waiver of Section 54.521 of the Commission's
Rules, April 14, 2006, 2 ("Waiver Petition"). When formed, the company was
named Nextira, LLC, which changed to NextiraOne in October 2001. See id.
Id.
Id.
United States v. NextiraOne, LLC, Criminal Docket No. CR-40041-LLP, Plea
Agreement (D.S.D. April 20, 2006) ("NextiraOne Plea Agreement" or "Plea
Agreement"). At approximately the same time, NextiraOne also entered into
a civil settlement with the United States. See Plea Agreement, Exhibit B.
NextiraOne Plea Agreement at 3.
NextiraOne Suspension Notice at 2; See generally NextiraOne Plea
Agreement.
NextiraOne Suspension Notice at 2; See generally NextiraOne Plea
Agreement.
See generally Waiver Petition.
Letter from Scott Hammond, Deputy Assistant Attorney General, Antitrust
Division, Department Of Justice, to Marlene H. Dortch, Secretary, Federal
Communications Commission (filed April 14, 2006).
See NextiraOne Suspension Notice, 71 Fed. Reg. 27254-56 (May 10, 2006).
Id.
Letter from James J. Regan, Counsel for Black Box Corporation and
NextiraOne, LLC, to Diana Lee, Esq., Federal Communications Commission at
2 (filed May 26, 2006) ("Opposition Petition").
Id. at 11.
See generally Opposition Petition.
Waiver Petition at 5-7; Opposition Petition at 6.
Waiver Petition at 8-9; Opposition Petition at 6.
Waiver Petition at 10-11; Opposition Petition at 13.
Waiver Petition at 11-12; Opposition Petition at 8-12.
Second Report & Order, 18 FCC Rcd. at 9227. Because the Commission
rejected a more "permissive" debarment standard, NextiraOne's reliance on
mitigating factors related to those more permissive rules is unpersuasive.
Waiver Petition at 13-15; Opposition Petition at 18-20. While the
Commission explained that its debarment rule would be "informed" by the
governmentwide rules, clearly the Commission's unambiguous rejection of a
more discretionary standard cannot mean that the factors associated with
exercising that discretion are among those rules that "inform" the
Commission's application of its stricter rule. Likewise, given that Puerto
Rico Department of Education was not convicted of any crime in connection
with the E-Rate program, NextiraOne's suggestion that our decision not to
debar that entity should be followed here is unavailing. Waiver Petition
at 8-9; Opposition Petition at 16-18. But see Federal-State Joint Board on
Universal Service, Petition of the Puerto Rico Department of Education to
Release Funds Associated with the Schools and Libraries Universal Service
Support Mechanism for Years 2001 and 2002, Order, 18 FCC Rcd 25417 (2003).
47 C.F.R. S 54.521(b) (emphasis added).
Second Report & Order, 18 FCC Rcd. at 9226.
Id. at 9227.
NEC Debarment Order at P 22.
47 C.F.R. S 54.521(c).
NEC Debarment Order at P 22.
47 C.F.R. S 1.3.
See WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969), cert. denied,
409 U.S. 1027 (1972) ("WAIT Radio"). See also Orange Park Florida T.V.,
Inc. v. FCC, 811 F.2d 664, 669 (D.C. Cir. 1987).
Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir.
1990).
See NEC Debarment Order at PP 23-27; Inter-Tel Debarment Notice at PP
16-18.
DOJ Letter at 2.
DOJ Letter at 1-2.
Plea Agreement at PP 13-16. The cooperation provisions in the Plea
Agreement are limited to one year from the date the court accepts the Plea
Agreement. See Plea Agreement at P 13.
See DOJ Letter at 2.
See Waiver Petition at 8.
Opposition Petition at 9-12. NextiraOne notes that it will remain a
separate legal entity under Black Box. See id. at note 6.
See Plea Agreement at P 17. These requirements apply to NextiraOne, its
successors and assigns. Id.
Waiver Petition at 10-11. USAC records confirm that no payments have been
made to NextiraOne for Funding Year 6 and thereafter.
NEC Debarment Order at P 24; Inter-Tel Debarment Notice at P 17.
NEC Debarment Order at PP 19-20; Inter-Tel Debarment Notice at P 28.
Plea Agreement at P 17; Waiver Petition at 11; Opposition Petition at 6-7.
See Waiver Petition at 12; Opposition Petition at 3, note 4.
47 C.F.R. S 54.521(d).
Affidavit of Stephen L. Snyder, President of NextiraOne Federal, LLC, at P
5 (appended to NXOF Letter) ("Snyder Aff."). NXOF was originally created
in 2000 under the name Timeplex Federal Systems, LLC. Id. at 2. NextiraOne
was originally created in 1997 under the name WilTel Communications, LLC.
Id. at P 3. Platinum acquired the Timeplex companies in 1999, and
NextiraOne and related companies in 2001. Id. at P 4. Because of
Timeplex's ownership and work at U.S. government secured sites, it
maintained a separate board and management after the acquisition by
Platinum. Id. at P 6.
Id. at P 7.
Id. at P 8.
Id. at P 9.
In anticipation of Black Box's acquisition of Platinum, Platinum created a
holding company into which the owners of NextiraOne transferred their
interests in that company, and Timeplex, LLC transferred its interest in
NXOF on April 25, 2006. Id. at P 10. At that time, NXOF ceased to be a
subsidiary of NextiraOne; the two became sister companies. Id. at P 11. On
April 30, 2006, Black Box acquired Platinum, and its organizational
structure maintains the sister relationship between NextiraOne and NXOF.
Id. at P 12.
Waiver Petition at 12; Plea Agreement at 7 (stating that "NextiraOne
Federal, LLC, a subsidiary of NextiraOne which operates as a separate
company, was not involved in the events" that led to NextiraOne's
conviction).
Letter from James J. Regan, Esq., Counsel to NextiraOne Federal, LLC, to
Diana Lee, Esq., Investigations & Hearings Division, Enforcement Bureau,
Federal Communications Commission (filed Aug. 30, 2006) ("NXOF Letter").
Snyder Aff. at P 15.
Id.
See 47 C.F.R. S 54.521(d).
See 47 C.F.R. S 54.521(e)(5); Letter from William H. Davenport, Chief,
Investigations and Hearings Division, Enforcement Bureau, to NextiraOne,
LLC, c/o James Regan, Esq., Crowell and Moring, LLP, Notice of Debarment
(August 24, 2006). On September 1, 2006, the Enforcement Bureau stayed the
effect of the debarment notice solely with respect to NXOF. See Letter
from William Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, to NextiraOne, LLC, c/o James Regan, Esq., Crowell and
Moring, LLP (September 1, 2006). Today's decision effectively ends the
stay and excludes NXOF from E-Rate debarment.
See 47 C.F.R. SS 54.521(a)(1), 54.521(a)(5), 54.521(d).
Federal Communications Commission FCC 06-126
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Federal Communications Commission FCC 06-126