Persistence of Vision

Letter to SPO June 25, 2006

June 25, 2006
 Chief Procurement Officer
 State Procurement Office
 P.O. Box 119
 Honolulu, HI 96810

 (via e-mail aaron.fujioka@hawaii.gov)

RE: PE 06-064-J

 Dear Mr. Fujioka,

DCCA has been in violation of State procurement law for many years now with regard to Public, Education and Government (PEG) Cable TV access contracts. According to CPO comments signed June16, 2006, SPO denied DCCA's sole source exemption request PE-06-064-J. According to that document, SPO is allowing DCCA between July 1, 2006 through June 30, 2007 to complete the necessary procurement process in accordance with HRS chapter HR103D.

As a 501c3 nonprofit corporation, the Community Media Producers Association (CMPA) would like to submit a competitive bid for PEG scope of services when offered and is concerned about aspects of the RFP process. CMPA is hopeful that the process would be competitive, but is concerned that the current PEG corporations that have been benefiting from the DCCA violations of State Procurement law would have an advantage that is unwarrantable and unfair.

If a corporation has received monies, property or capital improvements from an illegal process, is there any rule that prohibits that entity from competing on other invitations for bid from the State for a certain period of time after the violation has been found?

CMPA is recommending that any corporation that has benefited from the illegal process, whether from their initiative or not, be pronounced ineligible from the bidding process. These corporations have received funding in violation of the State procurement law for many years and thus have had the benefit of facilities, equipment, and capital improvements obtained in violation of State procurement law .

If SPO does not find these corporations who have directly benefited from or been recipients of the prior sole source designation should be prohibited from or delayed in the upcoming RFP participation, then consider placing the following specification in the scope of services of the bid:

“No state mandated or government funds, equipment or facilities, staff or contracted consultants paid by these funds, or any past state employee or former PEG board director that was directly or indirectly party to the violation(s) of state procurement code, 103d, HRS related to PEG and/or HPTF contracts, may be used to prepare any RFP or portion thereof, or in any way compete via subcontract to another corporation for the purposes of submitting an RFP for any State DCCA funded projects.”

CMPA is willing to comply with the above guideline.

Regards,

Carol Bain, president, bain@kauai.net

Community Media Producers Association

1658 Liholiho Street, #506, Honolulu HI, 96822, PH: 808-246-2111

It's Broke, Fix It!

Testimony of Wendy Arbeit relating to DCCA procurement process for PEGs

Relating to public access television services, whether the department should seek an exemption from the requirement that those services be procured through a competitive bid process and, if not, what requirements the department should include in any request for proposal.

"It's Broke, Fix It!"

Do Not Exempt 'Olelo from the State Procurement Law’s RFP process.

An RFP process for the types of services that 'Olelo provides is practicable, advantageous, and essential to the people of the State of Hawaii BECAUSE:

• 'Olelo is an organization that knowledgeable people do not trust, and have not trusted since shortly after its inception. Even specially facilitated producers (those that receive free production services by ‘Olelo staff with no guidelines or open process) are afraid to speak out for fear of the retaliation they have seen used against others. ‘Olelo is highly recognized in the community for providing services well below what is expected -- this is reflected in the steady, high turnover of individual producers and staff. It is widely agreed that it is one of the worst PEG access organizations in the United States even though it has one of the largest budgets. It has resisted all attempts by the community to improve it and make it less dysfunctional, dissolving all client mechanisms for this as soon as it found it could not control them.
• 'Olelo is unsurpassed in delivering discriminatory PEG access that favors government (including education) and large non-profits. It constantly violates its mission statement: "The specific and primary purpose of the corporation is to promote the creation, production and cablecasting of programs by, for and about Hawaii." Not only has it failed to adequately promote the services listed, but it has co-opted many of them for itself, thus reducing services to the clients it was created to serve and becoming an unfair competitor for production projects, equipment, and airtime.
• Since Olelo has set the bar so low, any replacement entity could easily match the knowledge, experience, and skill that Olelo has so dismally exhibited.
• For over a decade, 'Olelo has failed to and, in fact steadfastly, resisted accounting for monies received (and codified this in its bylaws). It has consistently delivered required reports incomplete and late. (Documentation for this and other assertions in this document can be found on hpam.hi.net)
• DCCA-mandated self-sufficiency objectives have never been adequately met by 'Olelo, which apparently has chosen to remain dependent on the public dole.
• 'Olelo's poor track record has resulted in its securing no grants; Its only partnerships are also dependent on what is essentially a tax on cable subscribers.
• 'Olelo has developed long-term and strong partnerships with government (including education) and favored large non-profits in training, facilitation, and grants to the detriment of the individual producers. This organization needs to be replaced by one that will rectify this imbalance. The exact, non-negotiable proportions of its budget going to government, education (HENC and non-HENC), and public projects need to be made clear.
• 'Olelo has been built with a tax mandated by the State Legislature on cable access subscribers. It has expended these public funds in an inefficient and wasteful manner, resisting making the details of these expenditures clear to the public. It has enshrined this absence of transparency in its bylaws and has sued the State to protect that status.
• State-mandated cable franchise fees that support PEG access are overseen (without great diligence, which can be construed as lazy at best and collusion at worst) by the State Department of Commerce and Consumer Affairs, Cable Television Division, which also names the majority of board members. Due to this high level of government involvement, 'Olelo should be required to go through a competitive bid process (RFP) as per state law to insure that the public is getting the highest value of non-discriminatory service for its money -- including responsiveness to its clients and transparency in its management and finances.
• The DCCA's task of designing the requirements and scope of services for the RFP is part of their job: what the public is paying them for. Over the years DCCA directors and the Cable TV Division's administrator have received many suggestions regarding the requirements and scope of services that would adequately serve the public. They have chosen to ignore these and allowed the PEGs to deliver minimal service. It is now time for them to use this input, read the many studies gathering dust, and do their jobs to make it finally possible for the citizens of this state to have media access that is non-discriminatory, balanced among PE and G, transparent, accountable, and fiscally responsible with well-maintained quality equipment and associated training and training media.
• PEG Access services are uniquely local in character for each island community. In order to fully meet community needs these services must be provided with the guidance of members (now lacking) and a board comprised of fairly elected members of the community (also lacking). A state-run RFP process mandating this would rectify the present closed-door dysfunction and favoritism.
• An RFP process for the services that 'Olelo provides is practical and advantageous to the State of Hawaii and its citizens because it would result in far better services for the same amount of money -- assuming that DCCA's CATV prepared the RFP properly and thoroughly (as opposed to the way it did its recent call for a "review" of 'Olelo), and assuming CATV diligently reflected and acted on the results (again opposed to the recent "review").
• An RFP-awarded contract would result in an access organization with increased flexibility in developing new programs to meet new community needs. 'Olelo has been especially recalcitrant in responding to individual clients' desires, complaints, and suggestions. Changes to contract terms and services, though time consuming, will result in a more nimble, responsive, honest, and non-discriminatory access organization so long as these are mandated by the state (now not done by CATV.)
• 'Olelo has repeatedly violated its own bylaws and policies, and has skirted county and state laws for years. It has sued the state in order be released from its obligation to observe the open records law and has resisted observing the open meeting law as well. With appropriate penalty provisions in the RFP these anti-public actions can be eliminated (assuming CATV finally provides the diligent input and oversight now absent).
• In the event that the DCCA is obligated to use an RFP process, national experts in the area of PEG services and knowledgeable, longtime contributing local producers should be consulted to draft its details. These experts must be selected with the full input, participation, and approval of knowledgeable members of the community. Before final approval of the resulting RFP, public hearings must be held and the public's input incorporated.

• Clearly delineate the percentage of funding to go to each category: P, E, G (no more stealth raiding of the Public-sector’s funds by double-dipping by Education through such means as satellite centers at schools and colleges or by Government through PEG productions relating to legislation or elections, for example.)
• Compliance with all open records and sunshine laws
• strict compliance with first-come, nondiscriminatory access
• public membership in PEGs with fair and open elections of board members
• detailed annual reports with penalties for late or non-compliant reports
• penalties for bylaws and operating policy violations
• prohibition of PEGs from doing their own productions
• require all grants and facilitations to be awarded in an open manner
• require a full annual management and financial audit by a third party not designated by the PEG and made available to all
• encourage flexibility in the use of other kinds of media
• encourage responsiveness to the needs of the individual speaker (as opposed to organizations)
• make it clear that the mission of the PEGs is to provide a “soapbox” for those who do not have access to commercial media; it is NOT to build community

Testimony in support of DCCA abiding by state procurement law

Aloha,

Since our last email, some of you have asked for more information about
the upcoming DCCA Public Comment Meeting regarding PEG Access services
and a possible RFP process.  We welcome all perspectives on these issues
and we encourage you to attend the Public Comment Meeting this
Wednesday, February 22 to testify in person or to submit your written
testimony by this Friday, February 24 to cabletv@dcca.hawaii.gov. 

We are providing the following information to help explain and clarify
some of the issues created by the proposed RFP suggestion. 

An Exemption to the Procurement Process
'Olelo does not believe that PEG (i.e. community) access is a
commodity that should be bought, sold or put up for bid. It involves
community building, partnering with governmental and educational
entities, statewide collaboration to leverage limited resources with
other community access organizations, and nurturing local programming
and a long-term commitment to the community. 'Olelo encourages the
DCCA to request an Exemption from the procurement process for all of
Hawai'i's access organizations.  

Risk to Current Services
To 'win' an RFP, a new operator will essentially have to provide a
plan that is substantially different from existing providers. All
current 'Olelo services, such as Satellite Community Media Centers,
that are enjoyed and appreciated by the community and our clients will
be at risk. In addition, training, production services and
airtime/playback may be more limited and restricted or, at minimum,
different than the services currently provided.

Lack of Qualified Pool of Operators
Hawaii currently enjoys a relatively stable environment of community
access providers.  DCCA's regular performance evaluation of these
operators has ensured a consistent progression of services delivered on
all islands. An RFP process will invite participation from a pool of
untested and unqualified providers. Respondents can include individuals
with narrow-focused objectives, business entities with limited community
focus, providers from the mainland without local roots, or
newly-established providers with little community access experience.
'Olelo is the only provider that has any consistent length of
experience and track record of delivering the range of services and
managing significant resources currently available to the communities of
O'ahu.

Stability and Sustainability
Serving the community requires the flexibility to address short-, mid-
and long-term objectives. If community access is subject to frequent
contract bidding, it will be likely that long-term objectives will be
sacrificed in place of short-term victories to maintain the contract.
This is inconsistent with the long-term sustainability focus in the
DCCA's 2004 PEG Access Plan for Hawaii.  This also impacts the ability
of the community access provider to develop long-term relationships and
commitments to communities.

Accountability
'Olelo's request for an exemption to the RFP process must not be
misconstrued as a lack of accountability. On the contrary, there is
already adequate oversight from government and community stakeholders on
the performance of any community access system in Hawaii. The current
system works and does not need to be unnecessarily tampered with. An RFP
process does not add more accountability but, in fact, will disrupt
continuous and reliable service.

'Olelo Community Television Has a Proven 16-Year Track Record
Over the past 16 years, 'Olelo has enjoyed stable management that is
better than the average non-profit organization and has expanded
services and programming to reflect the increasing diversity of voices
in our island community.  No other community access provider in the
country has the kind of experience 'Olelo has in managing a
significant number of satellite Community Media Centers.  Additionally,
'Olelo is one of very few community access providers that have had the
stewardship responsibility for the sizable equipment inventory and
financial resources available on O'ahu.   Our committed, highly
trained staff has a combined total of more than 250 years of community
access experience and has worked hard to earn your trust.

The addition of our sixth channel is the latest evidence of
'Olelo's ability to assess community needs and deliver the
capacity to meet those needs. In the last five years alone, 'Olelo has
developed ground-breaking programs to promote media literacy and social
issues among our youth (e.g.,Youth Xchange video competition) and
address voter apathy (e.g., Vote! 2002 & 2004) in our state while
providing consistent service to our independent producers and
volunteers.

'Olelo's success has been built on the understanding of community
needs and how community access can make a difference. These
relationships with a variety of community groups, youth groups, schools,
non-profits and government institutions were established over the years
and all this inherent social and community equity will be lost with a
new provider.

The DCCA has stated that even if the RFP process were to bring about a
change in management, that community access would continue to be
provided to all communities (public, educational and governmental). 
However there is NO guarantee what services would be offered, if current
services would be maintained, and to what level of quality and
commitment.  

How You Can Help
'Olelo Community Television has always supported the voice of the
people through community access.  Now we need you to voice your support
for 'Olelo.  We urge you to speak out now.  If you have benefited from
the types and quality of services you have received and want them to
continue, please testify in person at the Public Comment Meeting this
Wednesday, February 22, or provide written testimony by this Friday,
February 24, to: cabletv@dcca.hawaii.gov.  Your support is greatly
appreciated.

If you would like to know the airdates and times for the Public Comment
Meetings held on Maui, Molokai and shortly on O'ahu, and for
additional information about the DCCA Public Comment Meeting, sample
testimony for Akaku Molokai, and a map and parking information to the
DCCA building, please visit our website:
http://www.olelo.org/news/dcca06/dcca06mtg.html 

Again, we sincerely appreciate your interest in community access,

Gerry Silva
COO, 'Olelo Community Television


                                    

----- Original Message -----
From: "Sparky Rodrigues" <srodrigues@olelo.org>
Sent: Saturday, February 11, 2006 1:19 AM
Subject: Urgent need to protect and defend PEG TV. I need your help.

                                    

PEG Access --Recommendations for DCCA

Testimony Submitted 2/20/06

TO: DCCA via* Email to cabletv@dcca.hawaii.gov
Cable Television Division; Department of Commerce and Consumer Affairs
335 Merchant Street, Room 101
Honolulu, Hawaii 96813

From: Carol Bain, president, Kauai Worldwide Communications, PO Box 662320, Lihue HI 96766; email: bain@kauai.net
808-246-2111

DCCA PUBLIC MEETINGS- Relating to public access television services, whether the department should seek an exemption from the requirement that those services be procured through a competitive bid process and, if not, what requirements the department should include in any request for proposal.

THE HISTORY:

For over a decade, the DCCA has been requesting and obtaining sole source designation from the State Procurement Office for reasons that included that the four Public Education and Government(PEG) organizations in Hawaii, `Olelo, Na Leo, Akaku and Hoike Community Television, Inc., were providing essential government services.

In 2005, the well funded (with state mandated funds of over $3 million annually) PEG organization, `Olelo, took the Office of Information Practices to court to fight compliance with the Uniform Information Practices Act. The court ruled that 'Olelo and other PEGs do not have to follow open records requests (HRS92F) because, among other things, the organization is not providing a government function.

Looks like `Olelo got what it asked for.

One cannot have the state courts decide an organization is not providing a government service and have a state agency turn around and request for sole source designation for that same organization to provide a government service.

State Procurement Office grants sole source designations to organizations that provide essential government services, allowing the state to bypass the Invitation to Bid (or Request for Proposal) process. So, if the PEG organizations are not providing government services, these organizations should not receive sole source designation.

THE PRESENT: UNFAIR COMPETITION AND LACK OF SERVICES =CORRUPTED MISSION:

I attended the Feb. 8 meeting on Kauai (Oahu's is Feb.22) and provided verbal input. I am now including my written comments.

The original mission statement of PEGs supported first come, non-discriminatory practices. The current mission as stated by Hoike is not even close to what the federal mandate requires.

The entire purpose of a PEG acc ess organization is to empower the users &ndash to encourage them to make their own messages. From what I have seen at Hoike, for instance, Hoike is not empowering anyone or any organization but themselves.

DCCA has pro vided sole source agreements with Hoike Kauai Community Television and delivered hundreds of thousands of dollars each year for over ten years with very little oversight, other than board member appointments. Hoike refused to allow other non-profits to use &ldquotheir&rdquo equipment, even though it was purchased with state-mandated funding, when offering Government Access services.

In September 2003, I was on the board of The Benefit Network, a nonprofit organization that bid against Hoike to provide County government scope of services to document government meetings. The Benefit Network was the successful bidder, was awarded the Kauai County contract and performed government video services for government access between October 1, 2003 and September 30, 2004. The Benefit Network competed by quoting personnel time at competitive rates but did not include the equipment costs. One would think Hoike would be encouraging of independent producers to provide access services and allow the use of government subsided equipment for such purposes as well. When I asked for equipment support for government access purposes I was told &ldquono&rdquo. Hoike used their designation as PEG access provider to interfere with The Benefit Network's scope of services. Around mid-way through the contract, Hoike refused to accept SVHS tapes recorded in the two hour SP mode, and required The Benefit Network provide SVHS tapes in the lower quality, six-hour EP mode. This dramatically reduced the quality of the end product delivered by the Benefit Network. Hoike also refused to use an updated playback system purchased and installed in October, 2003, until after the Benefit Network's year long contract expired, and could never cite a clear reason for the delay.

During the past two years, I have found the Hoike executive director to not be forthcoming on this topic or other policies, including their use of volunteer services and criteria for providing free services to some groups but not others. I also do not believe he makes full disclosure to the Ho`ike board about policy issues or other complaints.

One of the reasons I worked to offer government access services, is that I have an exp ressed opinion that information aids citizens in participating with government decision making. In 2005, I personally offered my time as a volunteer to provide video documentation services for the Kauai County Charter Commission. Hoike is well aware of my professionalism and experience. However, Ho`ike's executive director, J Robertson flatly turned me down and could not offer a reason. True non-profit organizations rely on volunteers, but not Hoike.

Regarding government video production services, it is my understanding that the purpose of Hoike is to empower others. Instead of providing service for the County, why not train two county workers and allow the county to document their own meetings? In the long run this would save government tax dollars.

Now that Ho'ike is not getting their annual full funding, is Hoike going to implement their &ldquoHoike 2005 -2010 Self Sufficiency Plan&rdquo in order to make enough profit to replace the portion of the $300,000 they are no longer getting from the DCCA? Please answer this question: when this plan will kick in? If you read the plan, Hoike intends to use the subsidized equipment and TV studio to compete with private enterprise.

THE CREATION OF A PREDATORY NONPROFIT:

So, what the state has done is created a well-established production entity that has all the video production equipment and subsidized overhead in place to compete with private business and independent producers. I would like all of you to think how difficult it would be for an independent producer or another nonprofit to possibly compete with an organization that has received these large state-subsidized sums.

Now, these organizations will submit that they are best suited to provide future PEG services. If they had been doing a good job that may be true, but the opposite is true. These organizations have not been fulfilling their mission of first come nondiscriminatory access and empowering individuals to make their messages.

The fair thing to do is to prevent the current four PEG organizations that have benefited from years of sole source designation should be prohibited from competing for at least the same number of years they have benefited unduly. (I doubt if the state will do the fair thing, for there is probably a law against it.)

The rest of us in the business world had to apply for loans to buy equipment during the past 10 years, and pay them off in addition to completing work for hire.

My private company, Kauai Worldwide Communications, Inc. is paying off a federal Small Business loan now. My production company is already suffering because of Hoike. Hoike provides preferential treatment to other well-funded non-profit organizations instead of to disenfranchised individuals. I spoke to the Chamber of Commerce in early 2005 and learned Hoike is providing video production staff and equipment to that organization for free. Hoike videotapes their quarterly meetings and puts these programs on their public access channel 52 at prime time. My company cannot compete with free, or even a rock-bottom state-subsidized fee. Hoike bids against me for contracts, and underbid my company by $20,000 in 2004 because they have the advantage of all their overhead and equipment paid for by state-subsidy.

In 2004 I asked the Hoike manager, J Robertson, if Hoike would document the League of Women Voters of Kauai quarterly meetings similar to the services provided to Kauai Chamber of Commerce. Initially I was told yes but later was told no. When I asked their criteria, I was told that the Chamber offered free membership to Hoike. I then offered free membership in the League of Women Voters, but J Robertson still said no. No criteria has ever been provided as to their policy of what Hoike tapes for free with their own staff versus what they refuse to produce.

For many years, at least one Hoike employee used Hoike job contacts and the Hoike equipment for personal gain. This employee eventually left Ho`ike. I personally saw this employee, during and after leaving employment, use Hoike equipment to fulfill private video production jobs. I do not know if money changed hands for the use of this equipment, or just provision of special privileges.

The policy appears to be some are more equal than others, and the policies change and shift with the wind.

This is what happens when the state government creates these entities and then tries to distance themselves from oversight and accountability. If DCCA just wants to create an entity to slush cable franchise fees for education and government purposes, then do so. But do not drape this process as some public access service, because it is a dangerous practice that confuses the public and damages private enterprise.

Recommendation: NO SOLE SOURCE FOR PEG ORGANIZATIONS:

Whether DCCA listens to this plea to halt the bad practice of sole source subsidy to PEG entities or not, if DCCA is going to continue to appoint these boards and give them these large contracts, here is what should be in the scope of services:

1. Require the PEG entities comply with open records and open meetings laws (Open Meetings Laws/Uniform Information Practices Act). Provide these boards with the training on the Uniform Information Practices Act, including how to properly agenda meetings.

2. All board members should be required to participate in annual board training on Sunshine laws and complaince. Explain that our sunshine laws help citizens participate in the decision making process. The open records laws protect private records while allowing access to the public records.

3. Some PEG's, such as Hoike should be required to return its bylaws to what they were originally in 1992, that would be a step in the right direction because they rescinded, out of ignorance and arrogance, many good aspects of their bylaws in the late 1990's. with regard to Sunshine compliance and other good practices.

4. Provide service to individuals, not just to organizations

5. Return to the mission to provide first-come, non-descriminatory access (These organizations pick who they want to service and give preferential treatment. Such as taping Chamber of Commerce quarterly meetings for free with Hoike staff and equipment but turning down other groups. No clear criteria set or policies followed)

6. Clear and fair policies that support the mission (IE: no preferential treatment to most favored)

7. If clear and fair policies are not followed, then the organization should lose its funding or at least be fined a significant sum for each infraction (IE: $10,000)

8. Require Board to Hire paid staff with experience in community development (not just marketing and advertising). Annual evaluation of paid staff for all aspects of their job description.

9. Require the Annual report to be a public record with accountability enforced by DCCA

10. Annual financial audit by 3 ^rd party hired by DCCA (NOT PEG entity- as accountant will have conflict of interest)

11. All executory contracts for over $10,000 should be public record.

12. Sub-contracts over $10,000 should be let for open bid process and publicly advertised as a Request for Proposal

13. Annual elections by membership, with voter lists a public record, and elections must follow standard, fair elections practices.

14. A recommendation offered by DCCA consultants was once suggested at at least half of the board be elected. This is a good recommendation.

15. Each PEG entity should have an active producer group that meets regularly, (IE: Production Committee,) made up the local active producers that does not discriminate and has at least one board member on the committee. The role of this committee is to advise and made recommendations to the board on production policies and procedures.

16. Equipment purchased from state-mandated franchise fees or cable company CIP funds must be made available to all bidders on equal basis. A list of equipment available should be provided in the invitation to bid.

Finally, I support the recommendations of the Community Television Producers Association: DCCA should comply with state procurement law and use the competitive bid process to procure public access television services.

DCCA bias favoring MCC + special interests

Esther.Zukeran@dcca.hawaii.gov wrote:

Sean:

Below is Mark's response to your 1/27/2006 email. Please accept my profuse apologies for the delay in sending it to you. Mark drafted the response two weeks ago, but I inadvertently failed to send it until now. I hope that my delay does not cause you any great inconvenience.

Aloha,

Esther

---

Ironically, I received your e-mail late last night after returning from Maui, where I attended the "public" comment meeting at Maui Community College (MCC). Although I arrived early and attended the entire meeting, I was one of a majority of attendees who were not allowed to offer testimony. I hope you will review the unedited videotape record of that meeting.

As an observer in the room, the entire proceeding appeared biased against the public and in favor of special interests represented by Maui Community College with support of Everett Dowling and the Building Imbalance Gang (Dowling B.I.G.). At the entrance to the meeting room I was harshly "greeted" by Clyde Sonobe and Clyde Sakamoto who were in close private conversation between screening (ie "greeting") entrants. The message of their body language and demeanor was clear that opposing views to theirs were not welcome in that room. Some attendees were warmly greeted upon arrival and shown the sign up list, others were ignored or shunned. Many local people expressed to me that they felt intimidated by the venue and the deference DCCA provided to their "host" and so they chose to remain silent, while many others avoided the meeting altogether.

It also appeared that MCC used their State funded cameras in the room to monitor participants, yet they did not disclose if they were recording the meeting or for what purpose they might use such recording.

Further, the proceeding was conducted in an unprofessional and biased manner that favored special interest views, disadvantaged community voices, and effectively silenced the majority of members of the public who attended. Please pay special attention to the testimony offered by DCCA's appointed Akaku Board member, DeGray Vanderbilt who discussed the bias of the "public"hearing venue arrangements in his verbal comments at the meeting.

As orchestrated, MCC and DCCA managed to serve special interests who wanted to curb public participation - by silencing many voices last night in Kahului. When confronted with the poor choice of venue, Clyde Sonobe passed the blame to Governor Lingle's Maui liaison, and Sonobe did not disclose that prior concerns had been raised.

Notably, after special treatment was given to Clyde Sakamoto who spoke first and at length, I asked Glenn Chock if all speakers would be given equal time and he indicated that he believed so. It wasn't until some time later that Clyde Sonobe announced that he would cut off the hearing at 6:00pm regardless of the number of public testifiers waiting. In the end, most testifiers were turned away without opportunity to speak.

Also, please note as you review the program that Clyde Sonobe interrupted members of the public and asked them to limit their remarks several times, yet while remarks of MCC staff were also extended, he never asked any MCC speaker to limit their remarks.

Thank you for your thoughtful consideration of these concerns.

Sincerely,

Sean McLaughlin
Hawaii Consumers
e: sean808@earthlink.net

Hawaii Access Model - Pushing the public speaker to the back of the access bus

"From CTPA's perspective government actors (including education) have pushed the public speaker to the back of the access bus as predicted in a variety of DCCA commissioned reports which evidently are gathering dust on a shelf somewhere. CTPA has exhumed these document to discovered a history of what our members have experienced first hand. DCCA has created a PEG model which has institutionalized discrimination against the public speaker."

Read the Hawaii Community Producers Association's (CTPA) in depth report Hawaii Access Model - Pushing the public speaker to the back of the access bus, and listen to CTPA President's oral testimony at the DCCA Public Comment meeting on Feb 8, 2005 Kauai Hawaii

Squeezing Facts from DCCA: What did DCCA know, and when did DCCA know it?

In response to your questions or requests in your email dated January 13, 2006:

1. When did DCCA first become aware that the PEG contracts could have to comply with state procurement code (exact date)?

Reply: The Department submitted a written request for an opinion to the Department of the Attorney General on August 25, 2005. Beyond that, your question is too unclear (i.e., asking for an entity's knowledge of when something "could" be subject to a complex body of law) and accordingly cannot fairly by answered. The Department consulted with the Department of the Attorney General during the period we were negotiating the new contracts with the PEG entities. Procurement issues were discussed during those consultations, although the substance of those discussions is confidential under the attorney-client privilege.

2. When did DCCA, or whomever asked, first ask the AG for an opinion (exact date)?

Reply: See response above.

3. I respectfully request that past directors and DCCA appointed board directors be deposed, under oath. Reply: Your contentions concerning collusion, cover up, anti-competitive practices, and your request for an investigation, including the depositions of past DCCA directors and appointed PEG directors, have been referred to the Attorney General.

4. Please provide a page count immediately (not in 10 days!) to avoid further delay.

Reply: The page count is one.

Glen.WY.Chock wrote:

Mr. Garland: In response to your three questions:

1) On October 12, 2005, DCCA received an opinion from the Departm ent of the Attorney General which concluded that the PEG contracts we re subject to the State's Procurement Code. We consulted with the S tate Procurement Office on November 1, 2005, which informed us that it concurred with the Attorney General's opinion. Based on these opinions from SPO and the AG, the Department concluded that the S tate Procurement Code was applicable.

Mark, this response does not indicate when DCCA (or whomever) requested an opinion from the Attorney General, or whether it was the first time. It does not answer the intent of my question which is to establish the exa ct date DCCA became aware that the PEG contracts COULD have to be by bid? My emailed question to the DCCA Director in May of 2001, "Is DCCA required to post a public notice or Request for Proposal?", should have required her or Mr. Sonobe to request an opinion over 4 years ago!!

When did DCCA first become aware that the PEG contracts could have to comply with state procurement code (exact date)? When did DCCA, or whomever asked, first ask the AG for an opinion (exact date)?

2) The Department did not depose prior directors or CATV administrators. Since current Department personnel do not have personal knowledge of events that preceded their tenure, we quali fied the statement by noting that it was "to the best of our knowledge." This is a most troubling response seeing as how many responses to quest ions to DCCA regarding PEGs were responded to with "I don't recall", and "we do not maintain that record".

For DCCA, "to the best of our knowledge" appears to have been a stock answer to provide for their plausible deniability, not the public's best interests. When I asked past DCCA Director Alm if he had asked for a formal opinion of the AG regarding PEG access corporations' status as agencies, he said "NO", when asked if he had asked for an informal opinion he responded "I don't recall".

'Olelo's DCCA majority appointed board, their staff, and their attorney have expressed concerns prior to August 2002 to date that their status as an agency could have implications beyond compliance to HRS 92 & 92f, including being required to go through state procurement procedures. Did the DCCA appointed board director's keep their knowledge that they should be going through an RFP process in order to get the franchise moneys from DCCA?

Your responses give the appearance that until October 12. 2005 DCCA had not even asked the question regarding PEG contracts having to follow state procurement code, which I highly doubt. It appears there is an intentional attempt to cover up the whole truth of possible collusion or other anticompetitive practices, or at least, the ineptness of the Cable Television Division and the Attorney General's office.

If past DCCA Directors were guilty of collusion or other anticompetitive practices, should they be able to just get off the hook for illegally dispersing millions of dollars to organizations they helped create and then controlled by continually threatening to hold back funds? I think not and respectfully request th at past directors and DCCA appointed board directors be deposed, under oath.

Why would a "private nonprofit" continue to give majority board appointment power to state government if they weren't colluding with them?

Why did a past DCCA Director threaten to cut off Akaku's funds if they didn't put the majority appointment clause back into their bylaws, if not to continue collusion or state control?

Why are DCCA meetings with their appointed PEG access corporation board directors held with no minutes available to the public? That fact alone creates suspicion of collusion!

3) A copy of my directive to the Cable Television Division that contracts for PEG type services should be subject to competitive bidding is not available nor maintained in electronic format.

You are, however, welcome to view a hardcopy at CATV's office during normal business hours or a hardcopy may be reproduced for you at $ 0.25 per page. Please provide a page count immediately (not in 10 days!) to avoid furt her delay.

Even though we have a phone conversation scheduled for today, and you m y answer these questions verbally, I respectfully request a written response.

Sincerely, Jeff Garland

Aloha Director Recktenwald and Deputy Attorney General Rodney Tam,

As usual regarding PEG matters, DCCA's responses are full of apparently intentional ambiguities.

In your SPO Form-16 Procurement Violation, you state "Until recently, DCCA was not aware that the PEG access contracts were subject to the State's Procurement Code" (emphasis added). Could you please provide me with a more precise date for when DCCA &/or the Attorney General's office became aware?

DCCA also states "To the best of our knowledge, this appears t o be the first occurrence of this type" (emphasis added). Can DCCA &/o r the Attorney General's office unequivocally state this is absolut ely the first occurrence? Did you take a deposition from past directo rs &/or Cable Television Division Administrators they were also unaw are they were required to follow Procurement Laws regarding PEG contracts? If so, may I obtain a copy?

Under the assurance and safeguards section DCCA states "the Director has provided written direction to the Cable Television Division that contracts for PEG-type services should be subject t o competitive bidding pursuant to HRS A7103D, unless exempted." May I please have a copy of that document in the electronic format in w hich it was created to disseminate widely?.

Your promptest possible response will be greatly appreciated a s it will facilitate the public's continued involvement in this democr atic process, before it is too late. Your response will also help clar ify whether suspicion of collusion or other anticompetitive practices is warranted.

[A7103D-319] Reporting of anticompetitive practices. When for any reason collusion or other anticompetitive practices are suspected among any bidders or offerors, a notice of the relevant facts shall be transmitted to the attorney general. [L Sp 1993, c 8, pt of A7 2]

Former Na Leo Planning Committee member advocates RFP process for PEG contracts

Subject: RFP for PEG
From: "John Morales" <jonvideoguy@lycos.com>
Date: Thu, 26 Jan 2006 20:56:22 -1000
To: aaron.fujioka@hawaii.gov
CC: mrecktenwald@dcca.hawaii.gov, "Governor Linda Lingle" <gov@hawaii.gov>

Chief Procurement Officer/State Procurement Office Administrator Fujioka,

Please reject the DCCA's request for exemption from state procurement law request (06-20-J) for the following reasons:

It is time that the DCCA be mandated to follow Hawaii State law regarding the awarding of a 'FREE SPEECH" activity to a private non-profit agency.

I had been a long time Producer of programming on the Big Island's Na Leo O Hawaii PEG access center. DCCA's designation of PEG centers as 'private non-profit' agencies essentially shuts the public out of many important decisions regarding content programming, rules, ownership of copy rights and more importantly FREE SPEECH violations by these DCCA created PEGS.

I had filed a Federal lawsuit ( Pro Se) in early 2004 to address the consistant Free Speech violations by Na Leo O Hawaii and DCCA's duplicity in this manner. I argued that PEG agencies are 'State Actors' I even cited State Office of Information Practices opinion that PEGS are indeed 'State Actors'. They are 'publicly funded, are supposed to provide training and equipment to the public for the production and cable casting of programs FREE OF CENSORSHIP

Na Leo O Hawaii, through its support and duplicity by DCCA, has created its own by laws(without public input) and agency rules that essentially provide them with carte blanche to violate the publics FREE SPEECH rights and control of Program content.

Public access programming is supposed to be free of editorial control and censorship. Yet I have a copy of a letter from Na Leo's Executive Director , in response to a viewer complaint, that this viewer send in more letters collected from other like minded viewers and the Executive Director can take my program off the air. Which they did, citing that I violated 'their rules' on copyright violations.

HOW CAN AN AGENCY THAT DOESNT OWN THE COPYRIGHTS TO MUSIC OR PROGRAM CONTENT BE ALLOWED TO PRACTICE EDITORIAL CONTROL, CENSORSHIP AND CITE THE PRODUCER FOR TRESPASSING WHEN SAME PRODUCER IS ON THE PROPERTY AQUIRING COPIES OF DOCUMENTS, PER O.I.P.(Office of informaiton Act) ACT, FOR EVIDENCE AS PART OF A LAWSUIT??

Na Leo just doesnt like Pesky Producers and members of the Public asking legitimate questions regarding HOW MUCH POWER DCCA HAS GRANTED THEM.

This has got to stop NOW. All Peg agencies should be disbanded and the process begun anew with RFP going out and granted to credible, trustworthy PUBLICLY designated agencies that will allow Hawaii's public to produce programming free of censorship and editorial control.

THE DCCA HAS DONE NOTHING ON THE PUBLICS BEHALF WHEN THESE VIOLATIONS HAVE OCCURED AND HAVE BEEN POINTED OUT TO THEM.

I was on the planning committee for the creation of PEG agencies in Hawaii,and was a member of the Na Leo planning committee on Hawaii Island way back in 1992 when Former DCCA Director Robert Alm appointed me to represent the public. The State hired an outside mainland 'consultant" to help set up the PEG centers for each island.

I ARGUED THEN, AND NOW THAT HAWAII SHOULD NOT CREATE PRIVATE NON PROFITS FOR PEG AGENCIES!. I saw the writing on the wall, but my concerns were not heeded by the rest of the planning committee which included state, county and University of Hawaii Hilo-Kona interests.

The PUBLIC of Public Access Television should be included in this process, and be empowered to create and manage a facility that has the PUBLIC'S interest in mind,and not the greedy, self centered staff, Executive Directors and Board of Directors that dont give a rip about the public.

Mahalo, respectfully

John Morales

CTPA VP Garland provides additional info on "Akaku chairman: This is a state takeover" article

Aloha Iilima,

Thanks for keeping up on access issues in Hawai'i. Here's some corrections to your story " Akaku chairman: This is a state takeover" that will hopefully help you, as you have ben a big help to me.

You wrote:

"An opinion by the state's chief procurement officer issued last month..."

FYI The legal, informal opinion was given by the Attorney General's office and State Procurement officers agreed.

"...found that the Department of Commerce and Consumer Affairs violated state procurement laws by awarding contracts to Akaku and other public-access providers without going through a competitive request-for-proposals process. It also denied a DCCA request for exemption to the laws."

FYI The Attorney General is also guilty! After 8 years of automatically renewing PEG contracts, in 1997 & 1998 DCCA wrote brand new (weaker) contracts for all the PEGs. Here's 'Olelo's http://hpam.hi.net/olelo/contract/ Note at the very bottom of the contract is the signature of Deputy Attorney General Shari Wong (who has been representing OIP in their suit with 'Olelo, god help us!) approving the "FORM", which according to the Attorney General's office includes the content!

"DCCA Public Information Officer Christine Hirasa said the first PEG contracts were issued in 1990, before the procurement code existed, and continued to be issued in the same way year after year until the chief procurement officer said in October that it was violating the law."

Obviously you were misinformed seeing as all state PEG corporations got new contracts with DCCA in 1997-1998!. Ineptness or intentional? With my long history with DCCA, I know it was intentional, but excused as always as ineptness.

here is my ongoing archive of this whole lousy shibai" http://hpam.hi.net/RFP4PEG/ starting with my Halloween 2001 letter to then DCCA Director Matayoshi asking what was the process for designating a nonprofit to manage a PEG Corporation, "Is DCCA required to post a public notice or Request for Proposal?". I have posted the documents in chronological order showing how it appears that DCCA tried through intentional stealth tactics to cover up the violation. I have one to add to show CATV went the extra mile to hide their violation by posting the required Exemption request on an unidentified-to-the-public bulletin board outside CATV's office, rather than in the newspaper or on their website. The State Procurement office requires an exemption requester to post the notice "in a place accessible to the public", DCCA CATV sought and chose the least!

I also archive all the articles I can find around the state (mostly yours, Thanks!) about the government takeover of Akaku: http://hpam.hi.net/saveaccess/

My website contains the historical documents of PEG in Hawai'i: http://hpam.hi.net/

this agreement http://hpam.hi.net/KHET_HITS/ has been violated ever since it was signed, thus the continued raid by "E" & "G" on PEG funds, while they should have the funds HPTF up to now still gets.

see also http://hpam.hi.net/98bills/sb3136.txt which is analogous to the Akaku legislation, and was started by David Lassner , who I'm almost sure id behind what's happening on Maui, along with Sens. Fukunaga & Ige, all members of HENC!. The result of SB 3136 was that there was such a public outcry, it died. Soon after, 'Olelo's board became heavily weighted with UH, DOE & ex DCCA & DCCA CATV employees, who negotiated an agreement with 'Olelo to voluntarily provide them (the questionably formed HENC) with 25% of 'Olelo's percent of the franchise fees.

Obviously the Public's portion is dwindling at the hands of government, which essentially means less public voices able to use the soapbox intended for them to speak out against government! Take from the underserved to facilitate the already served. Hawai'i has effectively turned the mission of PEG access on its head!

Look at the bylaws and note the only provision in them DCCA refuses to allow the PEGs to amend i the DCCA majority board director appointment power, then ask yourself what "private nonprofit corporation" in their right mind would voluntarily put such a provision in their own bylaws? here's why... http://hpam.hi.net/akaku/

Thanks for the assistance in documenting it! It will be helpful with the inevitable federal lawsuit.

jg

Akaku chairman: This is a state takeover

From the Maui News - Akaku chairman: This is a state takeover