Browse: Departments Dates Agencies
DA ID: [DA 08-1417]
SUBJECT CATEGORY: Notice of Debarment; Schools and Libraries Universal Service Support Mechanism
DOCUMENT SUMMARY: The Enforcement Bureau (the ``Bureau'') debars Mr. Rafael G. Adame from the schools and libraries universal service support mechanism (or ``ERate Program'') for a period of three years based on his conviction of wire fraud in connection with his participation in the program. The Bureau takes this action to protect the ERate Program from waste, fraud and abuse.
SUMMARY: Schools and Libraries Universal Service Support Mechanism,
The debarment letter, which attached the suspension letter, follows:
June 13, 2008.
DA 081417
Via Certified Mail; Return Receipt Requested and Facsimile (956664 2703).
Mr. Rafael G. Adame, c/o Eric Samuel Jarvis, Esq., Alvarez & Jarvis,
PC, 6521 N. 10th Street, Suite A, McAllen, TX 78504, EMail:
eric@alvarezandjarvis.com. [[Page 37955]]
Dear Mr. Adame: 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 ``ERate program'') for a period of three years.\1\
On April 2, 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 May 2, 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\
\2\ Letter from Hillary S. DeNigro, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, to Mr. Rafael G. Adame, Notice of Suspension and
Initiation of Debarment Proceedings, 23 FCC Rcd 5518 (Inv. & Hearings Div., Enf. Bur. 2008) (Attachment 1).
\3\ FR 24287 (May 2, 2008).
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. \5\ See 47 CFR 54.8(e)(3) and (4). That date occurred no later than June 2, 2008. See supra note 3.
As discussed in the Notice of Suspension, you pled guilty to and
were convicted of wire fraud, in violation of 18 U.S.C. 1343, for
your participation in the ERate program.\6\ You admitted to submitting fraudulent invoices to the Universal Service
Administrative Company for reimbursement from the Erate program.\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\
\6\ See Notice of Suspension, 23 FCC Rcd at 5519.
\7\ See id.
\8\ Id. at 5519; 47 CFR 54.8(c).
\9\ See Notice of Suspension, 23 FCC Rcd at 5520.
\10\ See 47 CFR 54.8(a)(1), 54.8(a)(5), 54.8(d); Notice of Suspension, 23 FCC Rcd at 552021.
Sincerely,
Hillary S. DeNigro,
Chief, Investigations and Hearings Division, Enforcement Bureau.
cc: Kristy Carroll, Esq., Universal Service Administrative Company (via email);
Duncan S. Currie, Esq., Chief, Dallas Field Office, Antitrust Division, Department of Justice.
April 2, 2008.
DA 08770
Via Certified Mail; Return Receipt Requested and Facsimile (956664 2703).
Mr. Rafael G. Adame, c/o Eric Samuel Jarvis, Esq., Alvarez & Jarvis,
PC, 6521 N. 10th Street, Suite A, McAllen, TX 78504, EMail:
eric@alvarezandjarvis.com.
Re: Notice of Suspension and Initiation of Debarment Proceedings, File No. EB07IH9547
Dear Mr. Adame: The Federal Communications Commission (``FCC''
or ``Commission'') has received notice of your conviction for wire
fraud in violation of 18 U.S.C. 1343 in connection with your
participation in the schools and libraries universal service support
mechanism (``ERate program'').\11\ Consequently, pursuant to 47 CFR
54.8, this letter constitutes official notice of your suspension
from the ERate program. In addition, the Enforcement Bureau
(``Bureau'') hereby notifies you that we are commencing debarment proceedings against you.\12\
\11\ Any further reference in this letter to ``your conviction''
refers to your conviction of seven counts of wire fraud. United
States v. Rafael Gongora Adame, Criminal Docket No. 7:06CR1082,
CRIMINAL NO. M061082, Judgment (S.D. Tex. filed Mar. 3, 2008 and entered Mar. 11, 2008) (``Adame Judgment'').
\12\ 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 Erate
program). In 2007, the Commission extended the debarment rules to
apply to all of the Federal universal service support mechanisms.
See Comprehensive Review of the Universal Service Fund Management,
Administration, and Oversight; FederalState 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, 1641012 (``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)).
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.\13\ On November 19, 2007, the United States District Court
of Texas sentenced you to serve three years in prison following your
conviction on seven counts of wire fraud in connection with your
participation in the ERate program.\14\ As the owner of ATE Tel, a
vendor that provided computerrelated goods and services to various
school districts, including the Weslaco Independent School District
in South Texas, you submitted fraudulent invoices via wire
communications to the Universal Service Administrative Company
(``USAC'') for reimbursement from the ERate program.\15\ By making
false representations on invoices filed with USAC, you fraudulently
obtained more than $106,000 in illegitimate payments from the federal ERate program.\16\
\13\ 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).
\14\ See generally Adame Judgment at 1.
\15\ United States v. Rafael Gongora Adame, Criminal Docket No.
7:06CR1082, CRIMINAL NO. M061082, Indictment, 3 (S.D. Tex. filed
Dec. 6, 2006 and entered Dec. 12, 2006) (``Adame Indictment''). See
United States v. Rafael Gongora Adame, Criminal Docket No. 7:06CR
1082, CRIMINAL NO. M061082, Verdict (S.D. Tex. filed Feb. 9, 2007
and entered Mar. 20, 2007) (``Adame Verdict''); Adame Judgment;
Department of Justice Press Release: Former Telecom Owner Sentenced
to Three Years in Prison for Scheme to Defraud Federal ERate Program, 1 (``DOJ November 20 Press Release'').
\16\ See Adame Judgment; see also DOJ November 20 Press Release at 1.
Pursuant to section 54.8(a)(4) of the Commission's rules,\17\ 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.\18\ Your suspension becomes effective upon the earlier of
your receipt of this letter or publication of notice in the Federal Register.\19\
\17\ 47 CFR 54.8(a)(4). See Second Report and Order, 18 FCC Rcd at 92259227, paras. 6774.
\18\ 47 CFR 54.8(a)(1), (d).
\19\ Second Report and Order, 18 FCC Rcd at 9226, para. 69; 47 CFR 54.8(e)(1).
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.\20\ Such requests, however, will
not ordinarily be granted.\21\ The Bureau may reverse or limit the scope of suspension only upon a finding of extraordinary
circumstances.\22\
[[Page 37956]]
Absent extraordinary circumstances, the Bureau will decide any
request for reversal or modification of suspension within 90 days of its receipt of such request.\23\
\20\ 47 CFR 54.8(e)(4).
\21\ Id.
\22\ 47 CFR 54.8(f).
\23\ See Second Report and Order, 18 FCC Rcd at 9226, para. 70; 47 CFR 54.8(e)(5), 54.8(f).
Your conviction in connection with the ERate 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.\24\ Therefore, pursuant to section 54.8(a)(4) of
the Commission's rules, your conviction requires the Bureau to commence debarment proceedings against you.
\24\ ``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 lowincome 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).
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.\25\ Absent
extraordinary circumstances, the Bureau will debar you.\26\ 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.\27\ 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.\28\
\25\ See Second Report and Order, 18 FCC Rcd at 9226, para. 70; 47 CFR 54.8(e)(3).
\26\ Second Report and Order, 18 FCC Rcd at 9227, para. 74.
\27\ See id., 18 FCC Rcd at 9226, para. 70; 47 CFR 54.8(e)(5).
\28\ 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).
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.\29\ The Bureau may, if necessary to protect the public interest, extend the debarment period.\30\ \29\ Second Report and Order, 18 FCC Rcd at 9225, para. 67; 47 CFR 54.8(d), 54.8(g).
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 4C330, with a copy to Vickie Robinson, Assistant Chief, Investigations and Hearings Division, Enforcement Bureau, Room 4C330, 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 firstclass, 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 4C330, 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 4C330, Washington, DC 20554. You shall also transmit a copy of the response via email to 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) 4181420 or by email 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) 4181420 and by email at vickie.robinson@fcc.gov.
Sincerely yours,
Trent Harkrader,
Deputy Chief, Investigations and Hearings Division, Enforcement Bureau.
cc: Kristy Carroll, Esq., Universal Service Administrative Company (via email);
Duncan S. Currie, Esq., Chief, Dallas Field Office, Antitrust Division, Department of Justice.
[FR Doc. E815033 Filed 7108; 8:45 am]
BILLING CODE 671201P
FOR FURTHER INFORMATION CONTACT Diana Lee, Federal Communications Commission, Enforcement Bureau, Investigations and Hearings Division, Room 4C330, 445 12th Street, SW., Washington, DC 20554. Diana Lee may be contacted by phone at (202) 4180843 or email 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) 4181420 and by email at vickie.robinson@fcc.gov.
14 CFR Part 39 40 CFR Part 52 14 CFR Part 71 33 CFR Part 165 50 CFR Part 679 26 CFR Part 1 40 CFR Part 180 47 CFR Part 73 50 CFR Part 17 33 CFR Part 117 44 CFR Part 67 50 CFR Part 648 14 CFR Part 97 33 CFR Part 100 40 CFR Part 63 26 CFR Part 301 50 CFR Part 622 39 CFR Part 111 40 CFR Part 300 44 CFR Part 65 50 CFR Part 660 40 CFR Part 271 40 CFR Parts 52 and 81 47 CFR Part 64 50 CFR Part 665 49 CFR Part 571 44 CFR Part 64 21 CFR Part 522 14 CFR Part 23 47 CFR Part 76