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May 21, 2009
DA 09-1115
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED AND AND FACSIMILE (803) 252-8290
Ms. Cynthia K. Ayer
c/o James Edward Holler
Holler Dennis Corbett Ormond Plante and Garner
P.O. Box 11006
Columbia, SC 29211
Re: Notice of Debarment, File No. EB-09-IH-0002
Dear Ms. Ayer:
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.
On February 26, 2009, the Enforcement Bureau (the "Bureau") sent you a
Notice of Suspension and Initiation of Debarment Proceedings (the "Notice
of Suspension"). That Notice of Suspension was published in the Federal
Register on March 19, 2009. 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.
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. The Commission did not
receive any such opposition.
As discussed in the Notice of Suspension, you pled guilty to mail fraud in
connection with your participation in the E-Rate program. You admitted to,
among other things, submitting applications containing false information
to the E-Rate program and subsequently receiving funds to which you were
not entitled. 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. 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. 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."
Sincerely,
Hillary S. DeNigro
Chief
Investigations and Hearings Division
Enforcement Bureau
cc: Kristy Carroll, Esq., Universal Service Administrative Company (via
e-mail)
Beth Drake , Assistant United States Attorney, United States Department of
Justice (via email)
February 26, 2009
DA 09-476
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED AND E-MAIL
Ms. Cynthia K. Ayer
c/o James Edward Holler
Holler Dennis Corbett Ormond Plante and Garner
P.O. Box 11006
Columbia, SC 29211
Re: Notice of Suspension and Initiation of Debarment Proceedings,
File No. EB-09-IH-0002
Dear Ms. Ayer:
The Federal Communications Commission ("FCC" or "Commission") has received
notice of your conviction of mail fraud, in violation of 18 U.S.C. S:S: 2
and 1341, in connection with your participation in the schools and
libraries universal service support mechanism ("E-Rate program").
Consequently, pursuant to 47 C.F.R. S: 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.
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. On April 30,
2008, you plead guilty to mail fraud in connection with your participation
in the E-Rate program. While employed as a technology director for Bamberg
County School District One in Bamberg, South Carolina, you admitted to
submitting applications containing false information to the E-Rate
program. You subsequently requested funds that you were not entitled to
and caused the Universal Service Administrative Company ("USAC") to send
you a check in the amount of $25,243 made payable to your company, Go
Between Communications a/k/a Go Between Telecommunications. As a result of
your conviction, you have been sentenced to serve two years in prison and
ordered to pay $468,496 in restitution to USAC for using the mail to
submit fraudulent applications for E-Rate funding on behalf of Bamberg
County School District One.
Pursuant to section 54.8(a)(4) of the Commission's rules, 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. Your suspension becomes effective upon the earlier of
your receipt of this letter or publication of notice in the Federal
Register.
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. Such requests, however, will not ordinarily be
granted. The Bureau may reverse or limit the scope of suspension only upon
a finding of extraordinary circumstances. Absent extraordinary
circumstances, the Bureau will decide any request for reversal or
modification of suspension within 90 days of its receipt of such request.
II. Initiation of Debarment Proceedings
Your guilty plea to 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.
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. Absent extraordinary circumstances,
the Bureau will debar you. 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. 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.
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.
The Bureau may, if necessary to protect the public interest, extend the
debarment period.
Please direct any response, if by messenger or hand delivery, to Marlene
H. Dortch, Secretary, Federal Communications Commission, 236 Massachusetts
Avenue, N.E., Suite 110, Washington, D.C. 20002, to the attention of
Rebekah Bina, 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
Rebekah Bina, Attorney Advisor, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445 12th Street,
S.W., 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, S.W., Room 4-C330,
Washington, DC, 20554. You shall also transmit a copy of the response via
email to Rebekah.Bina@fcc.gov and to Vickie.Robinson@fcc.gov.
If you have any questions, please contact Ms. Bina via mail, by telephone
at (202) 418-7931 or by 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 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: Beth Drake, Assistant United States Attorney (via e-mail)
Kristy Carroll, Esq., Universal Service Administrative Company (via
e-mail)
See 47 C.F.R. S:S: 0.111(a), 54.8.
Letter from Hillary S. DeNigro, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, to Ms.
Cynthia K. Ayer, Notice of Suspension and Initiation of Debarment
Proceedings, 24 FCC Rcd 2470 (Inv. & Hearings Div., Enf. Bur. 2009)
(Attachment 1).
74 Fed. Reg. 11726-01 (Mar. 19, 2009).
See Notice of Suspension, 24 FCC Rcd at 2470-71.
See 47 C.F.R. S:S: 54.8 (e)(3) and (4). That date occurred no later than
April 20, 2009. See supra note 3.
See Notice of Suspension, 24 FCC Rcd at 2470.
See id.
47 C.F.R. S: 54.8(c).
See 47 C.F.R. S:54.8(g) See also Notice of Suspension, 24 FCC Rcd at 2471.
See 47 C.F.R. S:S: 54.8(a)(1), 54.8(a)(5), 54.8(d); Notice of Suspension,
24 FCC Rcd at 2470.
Any further reference in this letter to "your conviction" refers to your
guilty plea and subsequent conviction of one count of mail fraud. United
States v. Cynthia K. Ayer, Criminal Docket No. 5:06-453 (001 MBS), Plea
Agreement (D. S.C. filed and entered Apr. 30, 2008) ("Ayer Plea
Agreement"); United States v. Cynthia K. Ayer, 5:06-453 (001 MBS),
Judgment (D. S.C. filed and entered Dec. 11, 2008) ("Ayer Judgment"). See
also United States v. Cynthia K. Ayer, Criminal Docket No. 5:06-453 (001
MBS), Indictment (D. S.C. filed Apr. 19, 2006 and entered Apr. 20, 2006)
("Ayer Indictment").
47 C.F.R. S: 54.8; 47 C.F.R. S: 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)).
Second Report and Order, 18 FCC Rcd at 9225, P: 66. 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 C.F.R. S: 54.8(a)(6).
See Ayer Plea Agreement. See also Department of Justice Press Release
(Dec. 11, 2008), available at
http://www.usdoj.gov/atr/public/press_releases/2008/240283.pdf (DOJ Press
Release).
DOJ Press Release at 1.
See Ayer Indictment at 13-15; DOJ Press Release at 1.
Ayer Judgment at 2-4; DOJ Press Release at 1.
47 C.F.R. S: 54.8(a)(4). See Second Report and Order, 18 FCC Rcd at
9225-27, P:P: 67-74.
47 C.F.R. S: 54.8(a)(1)(d).
Second Report and Order, 18 FCC Rcd at 9226, P: 69; 47 C.F.R. S:
54.8(e)(1).
47 C.F.R. S: 54.8(e)(4).
Id.
47 C.F.R. S: 54.8(e)(5).
See Second Report and Order, 18 FCC Rcd at 9226, P: 70; 47 C.F.R. S:
54.8(e)(5),(f).
"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. S: 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
mechanism." 47 C.F.R. S: 54.8(a)(1).
See Second Report and Order, 18 FCC Rcd at 9226, P: 70; 47 C.F.R. S:
54.8(e)(3).
Second Report and Order, 18 FCC Rcd at 9227, P: 74.
See id., 18 FCC Rcd at 9226, P: 70; 47 C.F.R. S: 54.8(e)(5).
47 C.F.R. S: 54.8(e)(5). 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. S: 54.8(f).
Second Report and Order, 18 FCC Rcd at 9225, P: 67; 47 C.F.R. S:
54.8(d),(g).
47 C.F.R. S: 54.8(g).
Ms. Cynthia K. Ayer
May 21, 2009
Page 2 of 2
Federal Communications Commission
Enforcement Bureau
Investigations and Hearings Division
445 12th Street, SW, Suite 4-C330
Washington, D.C. 20554
Ms. Cynthia K. Ayer
February 26, 2009
Page 4 of 6
Attachment 1
Federal Communications Commission
Enforcement Bureau
Investigations and Hearings Division
445 12th Street, SW, Suite 4-C330
Washington, D.C. 20554