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April 2, 2008
DA 08-770
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED AND FACSIMILE (956-664-2703)
Mr. Rafael G. Adame
c/o Eric Samuel Jarvis, Esq.
Alvarez & Jarvis, PC
6521 N. 10th Street, Suite A
McAllen, TX 78504
E-Mail: eric@alvarezandjarvis.com
Re: Notice of Suspension and Initiation of Debarment Proceedings,
File No. EB-07-IH-9547
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. S: 1343
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 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 E-Rate program. As the
owner of ATE Tel, a vendor that provided computer-related 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 E-Rate program. By making false representations
on invoices filed with USAC, you fraudulently obtained more than $106,000
in illegitimate payments from the federal E-Rate program.
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 conviction 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 Diana
Lee, 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
Diana Lee, 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 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) 418-1420 or by e-mail 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) 418-1420 and
by e-mail 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
e-mail)
Duncan S. Currie, Esq., Chief, Dallas Field Office, Antitrust Division,
Department of Justice
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. 7:06-CR-1082, CRIMINAL NO. M-06-1082, Judgment
(S.D. Tex. filed Mar. 3, 2008 and entered Mar. 11, 2008) ("Adame
Judgment").
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.
See 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 ("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)).
See Second Report and Order, 18 FCC Rcd at 9225, P: 66; Program Management
Order 22 FCC Rcd at 16387, P: 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 C.F.R. S: 54.8(a)(6).
See generally Adame Judgment at 1.
United States v. Rafael Gongora Adame, Criminal Docket No. 7:06-CR-1082,
CRIMINAL NO. M-06-1082, 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. 7:06-CR-1082, CRIMINAL NO. M-06-1082,
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 E-Rate Program, 1 ("DOJ November 20 Press Release") .
See Adame Judgment; see also DOJ November 20 Press Release at 1.
47 C.F.R. S: 54.8(a)(4). See Second Report and Order, 18 FCC Rcd at
9225-9227, 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(f).
See Second Report and Order, 18 FCC Rcd at 9226, P: 70; 47 C.F.R. S:S:
54.8(e)(5), 54.8(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,
the high-cost support mechanism, the rural healthcare support mechanism,
and the low-income 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 mechanisms." 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).
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 C.F.R. S: 54.8(f).
Second Report and Order, 18 FCC Rcd at 9225, P: 67; 47 C.F.R. S:S:
54.8(d), 54.8(g).
Id.
Mr. Rafael G. Adame
April 2, 2008
Page 2 of 4
Federal Communications Commission
Enforcement Bureau
Investigations and Hearings Division
445 12th Street, SW, Suite 4-C330
Washington, D.C. 20554