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.

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

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

THE RISE AND FALL OF COMMUNITY ACCESS TELEVISION IN MAUI COUNTY

Note: This document has been reformatted to be web accessible. Find the original Word document see http://hpam.hi.net/saveaccess/THE_RISE_N_FALL.doc

THE RISE AND FALL
OF COMMUNITY ACCESS TELEVISION
IN MAUI COUNTY

A TIMELINE OF EVENT

Prepared by
Jay April ,Chairman,
Akaku: Maui Community Television, Inc.
for the
DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS
CABLE ADVISORY COMMITTEE (CAC)
State of Hawaii
January 19, 2005

INTRODUCTION

On February 5, 2005, Governor Lingle issued a proclamation praising Akaku: Maui Community Television as one of the best public access television stations in the nation and acknowledged Maui's non-profit Director of the Year, Sean McLaughlin, as an innovator in the field.

Since that time, Akaku has been under siege by known individuals with special interests who have financed a sophisticated campaign on behalf of members of our state educational establishment and their political allies to gain outright control of this valuable community resource. This siege of Akaku has lasted for more than a year and by the spring of 2005, with the help of some Akaku Board officers, resulted in a hostile takeover of the organization aided in no small measure by the actions of the DCCA cable division.

The political maneuvers of special interests at the legislature were extremely effective resulting in proposed legislation that would split the Maui PEG funding into thirds,

an idea that is contrary to "best practice" anywhere in the United States. It is a practice denounced by the Alliance for Community Media (a national PEG Access trade association) a high profile 1997 report commissioned by the DCCA, and a1995 State of Hawaii Legislative study.

At the crux of the dispute is a thoroughly discredited, forced agreement whereby state educational institutions succeeded in raiding nearly 50% of Akaku's 2005 budget and millions more in perpetuity without any accountability or performance review using the false claim that they were providing "education access" services. This diversion of public funds to state agencies contradicts long standing PEG access policy espoused repeatedly by the DCCA itself.

The Akaku Board moved to correct this situation in late August by closely following its bylaws. A majority of Board members took proper and legal steps to return Board governance to open decision-making, transparency and the rule of law. In so doing they also initiated a fair and impartial investigation into misconduct by board members and third parties.

Instead of applauding the current Board's efforts and assisting in a fair rehabilitation of

this free speech venue, or at least investigating the serious allegations relating to the dispute, the DCCA has refused to recognize the current Board majority and has helped to precipitate a true crisis in the delivery of community communications media. It is ironic that the sector most adversely affected is education access programming and training for all the people and educational institutions of Maui Nui.

This comprehensive TIMELINE OF EVENTS will illuminate many of the issues regarding Akaku's present crisis and brings to the fore the larger issue of the proper role of the state in regulating Public, Education and Government access in the public interest.

AKAKU SUMMARY AND TIMELINE OF EVENTS

1972-1979 - Federal Communications Commission (FCC) requires Public, Educational, Government (PEG) Access channel(s) on most all but the smallest U.S. cable systems. Local franchise authorities are by town, city or county. Four states regulate cable on a statewide basis - NY, CT, RI, and HI. The State of Hawai'i's regulatory framework is administered through the Department of Commerce and Consumer Affairs (DCCA) and it's cable television division.

1984 - Congress passes Cable Communications Policy Act of 1984 whereby franchising authorities were permitted, but not mandated, to require franchisees (i.e. cable companies) to require PEG Access. Franchise authorities can require not more than 5% of gross cable franchise revenue to be assessed for this or any other purpose.

1984 &ndash Maui Community College (MCC) / Department of Education (DOE) begins programming a dedicated institutional education channel, with programs mostly from Oahu and other sources with little or no access by public, government or non UH/DOE educational providers.

1993 - PEG Access organizations are set up on four islands. These PEG Access organizations are intended to be independent. They are not intended to be state or government agencies and they are not affiliated with the cable companies.

The situation with PEG Access on Maui is different from the other islands. Akaku is unique in that, while it serves as a clearinghouse and transmission site for P, E, and G access, it is set up as a public access (only) corporation and produces G programming through its contract with the county of Maui. Akaku, MCC, DOE and the county administration form an unofficial advisory consortium. This informal arrangement creates conflicts of interest, governance and budgeting difficulties. Consortium meetings are confidential and closed to the public. PEG resources are fractured and budget requests unwieldy, resulting in what a state study called, " inappropriate" DCCA involvement as well as unnecessary duplication of facilities among the four entities.

November 1995 &ndash State Legislative Reference Bureau issues report : In 1995, Senate Resolution No.65 directed the Legislative Reference Bureau to study the nonprofit public, education and government cable access organizations in Hawaii. The Bureau issued Report No.4 entitled: Public, Education, and Government Cable Television Access in Hawai'i: Unscrambling the Signals.

In Chapter 2, under the heading, The Access Organizations, the report states:

These access organizations are intended to be independent, they are not intended to be state agencies" and that," the neighbor island access organizations have been operating on a comparative shoestring due to their much smaller subscriber bases...the disparity of resources is marked"

The report questions the legal status of Maui's informal access consortium and recommends that the state consider Akaku as the central responsible entity for all PEG access in Maui County.

The report also questions DCCA franchise fee allocations and criticizes DCCA for allocating approximately 1% of franchise fee revenue to Hawaii Public Television Authority (HPBA). The report states," While the federal act is silent as to the uses of the franchise fee, paying a portion to HPBA (Hawaii Public Broadcasting Authority) is problematic, especially since the rationale for these payments was removed in January of 1995 when the educational component of HPBA, administration of the HITS program, was transferred to the University of Hawaii."

The report goes on to say, "Thus the propriety of continuing to fund HPBA should again be examined by the DCCA, as the funding acts as a barrier to increased funding for public access. This is an issue of great importance to the access organizations, as it appears that the maximum operational funding that can be required from the cable companies is five percent of gross revenues. With three percent of revenues already going to access, one percent going to DCCA, and another percent going to HPBA, there is no room for growth in the allocations for the access organizations."

NOTE: DCCA continues this practice to this day allocating about $1.6 million per year to Hawaii Public Television without requiring any accountability for these public funds or audits of how they are spent. It should be noted that due to this allocation to Hawaii Public Television, the annual loss of revenue to the Maui PEG entity is in excess of $200,000 per year. It should be further noted that no other franchise jurisdiction in the United States allocates cable franchise fee monies to public television.

The report states that " Akaku has over 150 individual access producers, and over 200 non-profit, GOVERNMENT AND EDUCATIONAL groups that have used Akaku's services in the past 19 months" Training programs are robust and equipment is available to any certified user on a first, come, first served, non-discriminatory basis. The report makes no mention of any local programming or training provided by MCC/DOE but does state that MCC/DOE have been given funds for facility and equipment including a television studio at Maui High School for DOE use. There is no reference to any MCC or locally originated education programming other than that provided by Akaku, separate from MCC/DOE.

The Budget section of the report refers to the four entities: MCC, DOE, Akaku and County Government, all requesting limited funds with not enough to go around. It cites frequent conflicts of interests, the inappropriateness of DCCA involvement in the budget process, and calls into question the legality of the Consortium. It criticizes the fracturing of PEG access among the different entities, highlights the unnecessary duplication of facilities, and mentions the comparatively low number of programs generated through the Maui DOE.

The report also refers to the inability of MCC to fulfill its access obligations on outer islands:

Another issue that has arisen is that lack of public access on the islands of Molokai and Lanai. MCC proposed to provide public access on these islands as it has learning centers already established there and has been receiving funds to do so since 1993. In September 1995, an outreach coordinator was hired by MCC for public access provision on Lana'i and Molokai but no equipment or training has been provided."

And in the area of Board Membership:

When asked whether the method of selecting the board should be changed to include the votes of users, subscribers, or both, in the area, Akaku replied in the negative. It was concerned that a membership driven board PEG access board would risk acquiring self serving board members who may not act in the best interests of the organization or the public"

June 1997 - DCCA commissions report: Disputes over PEG Resources, Splitting the Baby is NOT the solution, recommending specifically that DCCA, " Resolve the PEG structure in Maui County" and " use its authority to deter raids on PEGS by other state agencies"

November 1997 &ndash DCCA acts to dissolve Maui PEG access consortium .

Dysfunctional" consortium is dissolved with all assets, operational and decision-making responsibility transferred to non-profit Maui Community Television Corporation a.k.a. Akaku, and it's Board of Directors. There are no written contracts indicating that MCC and/or DOE are owed monies or assets as a result of the state clean up of the unwieldy and "possibly illegal" governance of the Maui PEG entity.

January 1998 - DCCA enters into sole agreement with Akaku to provide all PEG services for Maui County. Akaku signs six-month agreement with MCC/DOE

June 1998 - Akaku signs twenty-four month agreements with MCC/DOE

November 1997 - July 2003 MCC/DOE receive approximately 14% per year in entitlement funding and some capital funding from Akaku although contractual reporting requirements on the part of MCC/DOE to Akaku and DCCA are spotty. No performance reviews or audits of these state educational agencies are conducted. Problems with MCC/DOE reporting requirements are noted in Akaku annual audit reports prepared by outside accountants.

January 1999 - Akaku: Maui Community Television staff and producers chosen by Maui News among people who made a difference in Maui Countyin 1998.

June 1999 - Akaku Chair, Glenn Yamasaki requests information relating to MCC reporting.

September 2000 -Auditor for Akaku notes, " lack of timely complete reporting by MCC and DOE"

February 2001 -Annual Audit of Akaku reports inadequate financial and program reporting by UH and DOE under educational access agreement.

March 2001 - UH(MCC) makes demand for 33% of funding from Akaku as "entitlement" despite historic problem of little or no accounting for funds or programming.

April 2001 - DCCA Cable Administrator, Clyde Sonobe, tells Maui County cable telecommunications briefing at State Capitol that DCCA does not require access organizations serving rural communities, such as Akaku: Maui Community TV, to directly fund the University of Hawaii, nor the Department of Education.

September 2001 - Auditor for Akaku again notes "lack of timely complete reporting by MCC and DOE"

Summer 2002 - Akaku CEO, Sean McLaughlin meets with Everett Dowling and gets a warning that Dowling would divert Akaku's funds and channels to County and to MCC control and shut down Akaku if he could. Meeting is reported to Akaku Board Chair Lynne Woods (who reported that she discussed it with ML&P CEO, Gary Gifford) and to executive committee. ***

April 2003 - Everett Dowling conversation with Sean McLaughlin is reported in Honolulu Weekly although Dowling is not named. Cover story is entitled, Rotten Deal, alleging that the DCCA cut secret deals with state monopoly cable company, AOL/Time Warner and imperiled the future of public access in Hawaii.

June 2003 - Senator Kalani English letter to Paul Costello VP, UH External Affairs, Akaku CEO, Sean McLaughlin and DCCA Director, Mark Recktenwald affirming state policy and agreement that additional funds sought for UH-Maui should be, " pursued in cooperation and collaboration with Akaku, not at Akaku's expense."

June 2003 - Akaku Programming Committee Report, "Funding the Future" recommendations unanimously adopted by Akaku Board of Directors (including members Myles Inokuma and Sharron Courter.) Board voted unanimously to restrict funding to MCC/DOE until contractual accountability issues required by DCCA could be met in full.

Recommendations included the following:

As a matter of policy, Akaku no longer provides operating funds for state agencies including MCC and DOE unless a complete cost benefit analysis can be provided to; accepted and approved by a 2/3 majority of the Akaku Board with all fiscal and operational management under the auspices of Akaku.

Summer/Fall 2003 - DCCA conducts statewide review of PEG Access and drafts report - UH and DOE submit testimony and comments on the report. Akaku replies to testimony and comments.

January 2004 - DCCA presents State PEG plan document to legislature . One aspect of the plan calls for PEG's to develop strategy for self-sufficiency. Another aspect allows option for counties to assume supervision of PEG's in exchange for $30,000 annual payment from DCCA

February 5, 2004 - At February 25, 2003 Akaku Board of Director's Meeting, the Akaku 2003 Fiscal Year Audit Report includes a management letter by the auditor that he has reviewed all contracts and determined there is no basis for the ongoing claim that MCC is owed money by Akaku and that the MCC claim is not considered a liability for Akaku.. Sharron Courter requested a motion to accept FY 2003 Audit Report as submitted

January 2004 - March 2004 - Makena Video Contest winners and merit finalists' videotapes appear on Akaku channels 52 and 54 and sell out two performances at Maui Arts and Cultural Center. Initiated by a private citizen, the popular contest attracts scores of video entries about the Makena region. Some entries highlight development issues. Everett Dowling and Charles Jencks are developers with substantial financial interest in Makena area development and when County Council defers final vote on Dowling's project, many observers credit public access airing of the Makena video contest as a factor in that decision.

November 2004 - Clyde Sakamoto requests meeting with Maui Mayor Alan Arakawa and Akaku CEO Sean McLaughlin to address MCC funding claims. DCCA Director Mark Recktenwald and Cable Administrator, Clyde Sonobe attend as do DOE representatives and Akaku board members, Myles Inokuma and Jay April. This is a non-public meeting and no minutes are taken. Mayor announces intention to form task force to look at the problem. Sakamoto asserts that he will not participate in any task force until

McLaughlin pays MCC $100,000. No task force is ever formed. ***

January 2005 - Akaku BOD directs Executive Committee to purchase building at 333 Dairy Road to help satisfy DCCA self sufficiency directive provided that all due diligence is complete. At board meeting, Sean McLaughlin publicly announces Charlie Jencks and Everett Dowling verbal threats to Akaku.

January 2005 - Everett Dowling placed on Akaku Finance Committee by Finance Chair, Sharron Courter without Board knowledge and approval as required by Akaku bylaws. Finance Committee meets with Board Chairman, Myles Inokuma, Sharron Courter and Secretary, Sarajean Tokunaga in attendance. Dowling states his views that Akaku needs to cut back services and channels and divert funding to county and state

Immediately following Finance Committee meeting, Akaku Board Chair, Myles Inokuma informs Akaku CEO, Sean McLaughlin that Dowling has threatened a barrage of legal actions against Akaku. The next day, Inokuma informs McLaughlin that legal threats would be removed if McLaughlin were removed as Akaku CEO, which Inokuma does not agree to do. ***

January 2005 -Everett Dowling arranges for SB 959 and HB784 to be introduced into the Hawaii State Legislature. "Everett's Bills" drafted by his attorney, Sandra Wong would split the funding of Akaku into thirds - 1/3 to Education, 1/3 to Government and 1/3 to Akaku, reducing Akaku's funding by 2/3.

NOTE: It is noteworthy that Akaku has historically provided unrestricted access to users from all three programming service areas: public, government, and all forms of formal and informal education. It also should be noted that the P, E, and G divisions are programming categories - not funding areas. There is no " best practice" anywhere in the nation where these categories are funded in thirds. As a matter of fact, examination of the record in the State of Hawaii reveals that every major report and study commissioned by the legislature and the DCCA, advises precisely against this funding mechanism.

February 5, 2005 - Governor Linda Lingle issues a Proclamation praising Akaku as one of the best public access television stations in the nation and acknowledges Maui's non-profit Director of the Year, Sean McLaughlin as an innovator in the field

February 2005 - Inokuma makes verbal statements to Vice Chair that he has met with Clyde Sakamoto and Everett Dowling to " work something out with education" He reports that he has been "threatened with lawsuits" during these meetings, and that he was told that if Sean McLaughlin were fired, "the problem would go away", and, if Akaku consents to giving 1/3 ownership and revenue of the new building purchase to MCC/DOE, Mr. Dowling will provide an endowment of $100,000 or more to help Akaku. ***

February 14, 2005 - Akaku Board Chair, Myles Inokuma testifies before the Hawaii State Legislature and submits vigorous and robust testimony on Akaku letterhead strongly in favor of Akaku and AGAINST " Everett's Bills." MCC and DOE representatives including Clyde Sakamoto and Sadao Yanagi testify in favor of the bills, as do developers, Everett Dowling and Charles Jencks.

February 18 2005 -Akaku Board Chair, Myles Inokuma and Treasurer, Sharron Courter conduct clandestine, ex-parte " negotiations" of " Draft 8" of an "Education Agreement" with Everett Dowling's attorney, Sandra Wong, Clyde Sakamoto and Flo Wiger of MCC, Ken Nomura, Oscar Matsui and Sadao Yanagi of DOE without Akaku counsel present and without Board authority and approval. In this one of several known meetings, Inokuma and Courter , according to Wong, agree to help keep the bills alive in the legislature.

February 22, 2005 - At Akaku Board meeting, Inokuma distributes" Draft 8" of "Educational Agreement" to Akaku BOD for comment at next meeting. Board member, Steve Edwards questions Board officer conduct and due diligence in purchase of building.

February 22, 2005 - Board member, Steve Edwards sends letter of resignation citing irresponsible board management and stating his belief that the Board does not practice fiduciary responsibility. In subsequent conversations, Mr. Edwards directed his comments in severe criticism of Ms. Courter and Inokuma with respect to their dealings with First Hawaiian Bank and the building purchase. He questioned the fact that the loan for the purchase had never been put out to bid and stated that he was able to secure better terms with American Savings Bank. When Akaku Treasurer, Sharron Courter was informed of this by Mr. Edwards, she reportedly entered into a tirade and hung up the phone leading Mr. Edwards to conclude that," Sharron Courter is a dangerous woman."

February 25, 2005 - Inokuma submits new and substantially different testimony before the legislature from that submitted on behalf of the Board on February 14, 2005. Inokuma submits this substantially different testimony on HB 784 (Everett's Bills) before the House Committee on Finance without Board knowledge or approval. Inokuma's written testimony IN FAVOR of the anti Akaku legislation is nearly exact as to form and content as the testimony of MCC/DOE representatives Sakamoto and Yanagi. Inokuma's testimony does not reflect Akaku Board policy and is extremely damaging to Akaku.

February 2005 - March 2005 - Chamber of Commerce head, Lynne Woods, and Chamber Board members, Charlie Jencks, Everett Dowling, MCC representatives and others submit testimony IN FAVOR of "Everett's Bills." DOE's, Sadao Yanagi represents to the legislature that Akaku leadership has approved an " educational agreement." and submits a misleading draft agreement to committee. The League of Woman Voters, Hawaii Society of Professional Journalists and the national PEG nonprofit trade group, Alliance for Community Media are among those testifying against the bills. Sharron Courter and Myles Inokuma continue to lobby on behalf of the MCC/DOE/Dowling position.

February - March 2005 -Board meeting minutes reveal that Akaku officers, Inokuma, Courter, and Tokunaga continue to champion the same unsubstantiated position of Sakamoto/Dowling/DOE which is that MCC/DOE are entitled to up to a million dollars of Akaku reserve funds being used to purchase the building. Clyde Sakamoto also testifies for the record, regarding the question of shared liability, that any agreements need to be justified to the Board of Regents and the Board of Education.

February-March 2005 - Everett Dowling is still a member of the Akaku Finance Committee. Witnesses and public testimony before the Akaku Board of Directors by Mr. Clyde Sakamoto, reveal that Dowling/Sakamoto have been given proprietary financial and operational information about Akaku by Treasurer, Sharron Courter in direct violation of Section 12 of Akaku bylaws.

February - March 2005 - Two ex-parte, non posted, secret Executive Board meetings are held at Kahului IHOP where Inokuma, Courter and Tokunaga attempt to persuade Vice Chair, Jay April to go along with the terms of the so called" educational agreement" drafted by Dowling attorney, Sandra Wong and to convince Mr. April of the need to " get rid" of Akaku CEO, Sean McLaughlin. A second meeting is attended by Inokuma, Courter, Tokunaga, April, former treasurer Lloyd Kimura and former mayor, Kimo Apana. Apana announces attempts to broker a deal with MCC Chancellor, Clyde Sakamoto regarding the agreement" and asserts that Sakamoto has told him he would use the money from Akaku to pay for police and fire training. ***

March 2005 - At the end of a Finance Committee meeting held on March 2, 2005, Dowling orders Inokuma and Courter to get the " agreement" approved at next Board meeting. ***

March 2005 - Vice Chair April notifies the Akaku Board of Directors via email of possible conflicts of interest, malfeasance, by law violations and wrongdoing on the part of Executive Committee members, Inokuma and Courter and demands Dowling's immediate dismissal from the Finance Committee.

In exchange for a retraction of the most serious accusations, which Vice Chair does by email to Board members, Inokuma and Courter agree to kick Dowling off Finance Committee. Inokuma and Courter allow Dowling to remain on Finance Committee until August of 2005.***

March 2005 - Akaku President/CEO, Sean McLaughlin informs Akaku counsel,Chair Inokuma and Treasurer Courter and others of Sandra Wong (Dowling's attorney) testimony before the legislature against Akaku building purchase and recommends separating the building purchase issue from the education agreement issue and recommends taking immediate action to conclude building purchase.

March 2005 -Presented with analysis by Board members who are expert in the real estate business and by Akaku's President and CEO, strongly in favor of the Board recommended purchase, and in view of the fact that Akaku's Dairy Road purchase is projected to make a profit in year one (even with a 2/3 reduct