Persistence of Vision

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

Akaku chairman: This is a state takeover

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

DCCA Letter to PEGs re cutting funds for 2006

Read the letter at http://hpam.hi.net/RFP4PEG/012306%20DCCA%20to%20PEG%27s%20re%202006%20PEG%20Payments.pdf

Statewide meetings regarding RFPs for PEGs

"HENC and its representatives shall not initiate any activity intended to or that will result in HENC or its members receiving additional funding from cable franchise fees not otherwise committed to Hawaii educational institutions or other purposes, outside of the funds provided in this Agreement."

Hawaii PEGs funding withheld

More bad news today for community media in Hawaii -

Correspondence with Time Warner released today reveals that Hawaii's State cable regulator (with ties to Time Warner) is withholding half the cable franchise funds from Hawaii PEG operators serving five counties on six islands. Affected PEGs are 'Olelo: Community TV, Akaku: Maui Community TV, Na Leo O Hawaii and Ho'ike: Kauai Community TV.

After assaults by private land developer Everett Dowling and State "education" bureaucrats, Maui and Kalawao Counties which are served by Akaku: Maui Community TV, were singled out for special additional reductions totaling seventy-five percent of cable franchise funds withheld and another eight percent given directly to State "education" agencies.

The attached letter to the editor was sent last week to Maui News and printed today, predicting today's action by the State.

http://mauinews.com/story.aspx?id=16320

-------- Original Message --------

Subject: letter to editor
Date: Sun, 22 Jan 2006 13:11:28 -1000
From: Sean McLaughlin <sean808@earthlink.net>
Organization: community+media
To: Editor <editor@mauinews.com>

State pulling the plug on Akaku?

Dear Editor -

State cable regulators at DCCA are talking with Time Warner about diverting public funds intended for Akaku: Maui Community TV. Under current State contracts payment of nearly one million dollars of cable access fees by Time Warner to Akaku is due January 31, 2006.

Private commercial interests who are "Building Imbalance" with State bureaucrats want the Maui funds diverted. Local community members who support free speech and open media access for all are backing Akaku.

Watch closely Maui Nui - you are almost speechless.

Truly,

Sean McLaughlin
e: sean808@earthlink.net
t: 808-447-9610 (O'ahu)
c: 808-283-3174 (Maui)

DCCA - NOTICE OF PUBLIC COMMENT MEETINGS - STATEWIDE PUBLIC. EDUCATION & GOVERNMENT (“PEG”) ACCESS SERVICES

Note: CTPA VP Jeff Garland printed, scanned, OCR'd, spell checked, and then reformat into HTML for greater accessibility (and commenters can now cut and paste questions they address). The DCCA "official" (PDF) document is located at URL: http://www.hawaii.gov/dcca/areas/catv/main/press_releases/public_comment_meetings.pdf/download

DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS

NOTICE OF PUBLIC COMMENT MEETINGS

STATEWIDE PUBLIC. EDUCATION & GOVERNMENT (“PEG”) ACCESS SERVICES

East Hawaii — Hilo
DATE: Wednesday, February 1, 2006
TIME: 4:00 p.m. to 6:00 p.m.
LOCATION: State Office Building-Hilo
Conference Rooms A, B, C
75 Aupuni Street

Kahului, Maui
DATE: Wednesday, February 15, 2006
TIME: 4:00 p.m. to 6:00 p.m.
LOCATION: Maui Community College
Ka'a'ike Building, Room 105 B/C/D
310 West Kaahumanu Avenue

Lihue, Kauai
DATE: Wednesday, February 8, 2006
TIME: 4:00 p.m. to 6:00 p.m.
LOCATION: State Office Building
2nd Floor, Rooms A, B, C
3060 Eiwa Street

Honolulu, Oahu
DATE: Wednesday, February 22, 2006
TIME: 4:00 p.m. to 6:00 p.m.
LOCATION: King Kalakaua Building-DCCA
Queen Lili’uokalani Conference Rm
335 Merchant Street

Purpose:

The Department of Commerce and Consumer Affairs ("DCCA") Cable Television Division (“CATV”) I. seeking to obtain the public's general input and comments on issues 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.

1. Please comment on the services that are provided by the Public, Education, and Government (“PEG’) organization in your respective county: Akaku (Maui), Ho’ike (Kauai), Na Leo (Hawaii) and ‘Olelo (Oahu). Examples would include but not be limited to the following:

A. Do their hours of operation satisfy your needs?
B. The availability and quality of their equipment?
C. The quality of training provided.
D. How knowledgeable is their staff?
B. Overall quality of services provided to their clients.

2. If a Request for Proposal (RFP”), which is a competitive bid process, for PEG services was

issued by the DCCA, what requirements do you think should be included? Please comment on these as well as other items that should be considered. Examples would indclude but not be limited to the following:

-1-

A. Operational Management and Administration

1. Operation of Access Channels
2. Provision and Care of Facilities and Equipment
3. Programming policies and practices
4. Provide additional Media Services
5. Training for equipment utilization
6. Support Services
7. Train and Organize Producers/Volunteers
8. Outreach, Ascertainment and Promotion
9. Customer Service and Complaints
10. Operating Policies and Procedures
11. Reporting Requirements
12. Strategic and Operational Planning
13. Facilitated Production

B. Financial Management

1. Budgeting
2. Financial Statements and Auditing
3. Policies and Procedures, Training Manual
4. Insurance
5. Reporting requirements
6. Funding

All interested persons will be afforded the opportunity to submit their comments, both orally and in writing, at the time of the public comment meetings. Whether interested persons wish to present oral testimony or not, all testimony should be written and submitted to the CATV Division via the following:

* Email to cabletv@dcca.hawaii.gov
* Fax: (808) 586-2825
* U.S. Mail to: Cable Television Division

Department of Commerce and Consumer Affairs
P.O. Box 541
Honolulu, Hawaii 96809
Deadline to submit written comments to DCCA is Friday, February 24.2006
Copies of this notice may be obtained at:

* DCCA’s website at http://www.hawaii.gov/dcca/areas/catv/main/press_releases/ (Internet access is available at State Public Libraries)

* DCCA’s office:

Cable Television Division
335 Merchant Street, Room 101
Honolulu, Hawaii 96813

-2-

Individuals who require special needs accommodations may request assistance by writing or contacting Ms. Patti Kodama at the address above or at (808) 588-2620 at least seven (7) working days prior to the scheduled public comment meeting.

HISTORY OF DCCA PROCUREMENT LAW VIOLATIONS ALLEGED

COMMUNITY TELEVISION
PRODUCERS ASSOCIATION
1658 Liholiho St #506 - Honolulu HI, 96822

MEDIA RELEASE

CONTACT: ED COLL @ 808-246-2111 (Kauai)
coll@kauai.net

HISTORY OF DCCA PROCUREMENT LAW VIOLATIONS ALLEGED
Over $50 Million In Sole-source Contracts Involved

HONOLULU: MONDAY, DECEMBER 19, 2005 - The actions of the Community Television Producers Association (CTPA) have stopped the Department of Commerce and Consumer Affairs (DCCA) from obtaining an exemption from Hawaii State procurement law. At least eleven years of illegal contracts between the DCCA and the Public, Education, and Government (PEGs) access entities have been uncovered. Aaron S. Fujioka, Chief Procurement Officer for the State of Hawaii disapproved the DCCA exemption request saying these contracts were subject to the procurement code. The State Procurement Office (SPO) serves as the central coordinator of procurement statutes and rules for all governmental bodies of the State and its counties. Each County in the state has a PEG entity created by the DCCA over a decade ago, which include `Olelo on Oahu, Ho`ike on Kauai, Naleo on Hawaii, and Akaku on Maui. CTPA is an organization that was instrumental in establishing PEG access in the state.

Almost four weeks ago, CTPA members began pointing out several discrepancies found on a DCCA request for exemption from Chapter 103D, seeking to allow a sole-source designation for each PEG entity. Incorrect dates appeared on one application, where the closing date occurred chronologically prior to the opening date.

The exempted dollar amount DCCA was asking for was not half-a-million dollars as previously posted, but almost ten times that amount ($5,941,000).

The SPO will consider the period of violation to be from 1997-1999 contracts to June 30, 2006. During this time period, over $50 million worth of sole-source contracts have been issued in violation of procurement law by the DCCA and the Attorney General's office to these private entities, while no other non-profit or for-profit organizations were allowed to compete.

For years CTPA has questioned sole-source contracts with the DCCA-created 501c3 non-profits that are funded through state mandated cable subscriber fees. A CTPA member discovered several discrepancies in the DCCA request for exemption notice published on the State Procurement Office (SPO) website and reported the discrepancies to that office. Upon being made aware of these discrepancies, SPO rescinded the fast-track approval, reposted the request for exemption notice, and required a 7-day public comment period to begin from that date. This public comment period was extended an additional week after CTPA pointed out discrepancies in dollar amounts and dates. CTPA members immediately submitted comments. This time, SPO disapproved the exemption and directed that DCCA complete a procurement violation form explaining why the state agency violated state procurement law from 1997 until June 2006.

Apparently DCCA and the PEGs signed a new supplemental agreement prior to SPO disapproving the exemption extending the violations through the June 2006 date. The DCCA contract violations continue unabated. CTPA president, Ed Coll said, "This disapproval of exemption by the SPO may require DCCA to finally comply with state procurement law and use the Invitation for Bid (IFB) process, known as open bidding. If so, there are certainly competitors in Hawaii who will jump at the chance to bid on these contracts."

Currently, these PEG organizations have been funded to manage cable TV access channels, play back programs from users, and train the public to produce video programs. These funds are state mandated cable subscriber fees collected by the cable companies derived from 3% of their gross revenue. The entire cost is passed onto the cable TV subscribers as a franchise fee.

CTPA notes that `Olelo (Oahu's PEG) which receives millions in state mandated public dollars by the DCCA, disagrees with both the State Office of Information Practices (OIP) and Attorney General opinions that `Olelo must comply with the Hawaii Uniform Information Practices Act (UIPA) open records laws. Using their multi-million dollar budget obtained through DCCA's procurement law violations, `Olelo filed a lawsuit against OIP seeking exemption from UIPA open records provisions. "Although ironic, CTPA is not amused that `Olelo is using the public largess gained from DCCA contract violations to challenge the jurisdiction of OIP and exempt themselves from UIPA", Coll said.

• Read the original DCCA Request for Exemption and 12/12/05 SPO comment: http://hpam.hi.net/RFP4PEG/form07256.pdf
• For a complete chronology and archived original documents on this topic see: http://hpam.hi.net/RFP4PEG/
• Visit CTPA blog Persistence of Vision http://www.kauai.net/ctpa/

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Has DCCA PEG contracting procedures violated Hawaii state procurment laws?

Has the Hawaii State Department of Consumer Affairs (DCCA) practice of engaging in noncompetitive sole source contracts with nonprofit corporations the DCCA created (`Olelo, Akaku, Ho`ike and Naleo) a violation of Hawaii state procurement laws?

The possible violation came to light when the Community Television Producers Association (CTPA) discovered that DCCA was requesting an exemption from state procurement law, but had improperly noticed the exemption (in violation of state open records law) by not posting a copy of the notice of exemption request in an area accessible to the public, at least 7 calendar days prior to any approval. CTPA suspects the violation by DCCA was an intentional and covert attempt by DCCA to obtain this exemption, while not drawing public attention to past ongoing violations of the state procurement laws. The fast-track approval by the procurement office has been rescinded but DCCA has re-noticed the exemption request. Read all about this issue by clicking the link below.

http://hpam.hi.net/RFP4PEG/

Summary of Hawai'i DCCA's CAC meeting

UPDATE: Summary of Hawai'i DCCA's CAC meeting

State gives Time Warner a rent break; State delays new channel at Time Warner's request; Dowling is building imbalance in Maui's media

October 13, 2005 (Honolulu) - A public meeting of the Hawaii Department of Commerce and Consumer Affairs (DCCA) Cable Advisory Committee was held in Honolulu on Thursday October 13, 2005. The agenda was posted online at http://www.hawaii.gov/dcca/areas/catv/ link to Cable Advisory Committee (CAC) - here are informal notes and three newsworthy items from the meeting.

The CAC meeting included an announcement by DCCA's cable administrator Clyde Sonobe regarding the State's most recent action to reduce franchise fees assessed on Time Warner. Hawaii's State Ethics Commission previously found that Sonobe's spouse is employed by Time Warner's telecom subsidiary in Hawaii and any action or non-action taken by Sonobe that benefits Time Warner telecom could create a real conflict of interest for Sonobe. Local consumer groups have already pointed out the appearance of conflict in Sonobe's case - as Sonobe is the nominal State regulator of Time Warner's statewide monopoly cable TV operator. Cable franchise fees are assessed as partial rent for Time Warner's use of the public rights of way. The State action announced by Sonobe was taken unilaterally at the State's initiative.

State gives Time Warner free rent and cuts regulation

Pursuant to a decision and order dated October 5, 2005, State cable administrator Clyde Sonobe announced at their CAC meeting on October 13, 2005 that DCCA will reduce funding for cable regulation and no longer assess Time Warner full rent on the public rights of way that are used by Time Warner for commercial activity including broadband internet service and cable TV.

In spite of inadequate regulatory practices that fail to protect consumers and represent the public interest, the DCCA will reduce it's cable regulatory oversight resources and defer collection of cable franchise funds that are clearly needed. The State has never conducted a management review and audit of the DCCA's cable TV division, nor a comprehensive cable franchise compliance review of Time Warner's cable and telecom subsidiaries in Hawaii.

see http://www.hawaii.gov/dcca/areas/catv/decisions_orders/files/323.pdf

In a related development on the DCCA's agenda:

State delays new 'Olelo access TV channel, punts again to Time Warner

Pending reconsideration, DCCA's cable administrator Clyde Sonobe announced today that the launch of a long awaited community access TV channel for Honolulu will be further delayed. The State's most recent action delaying the channel fits a pattern of deference to Time Warner that has been the hallmark of Hawaii's cable TV regulation for the past decade.

http://www.hawaii.gov/dcca/areas/catv/decisions_orders/files/320.pdf

and

http://www.hawaii.gov/dcca/areas/catv/decisions_orders/files/321.pdf

see also Clyde Sonobe letter to Akaku dated May 25, 2005.

Finally:

Everett Dowling joins State cable deliberations

Legal counsel for politically connected land developer Everett Dowling, Sandie Wong attended the State's Cable Advisory Committee meeting in Honolulu on October 13, 2005. Dowling's counsel sat directly behind Maui Community College representative Mike Albert and conferred with him during the meeting. Albert offered written and oral testimony at the hearing that charged Akaku: Maui Community TV with "malfeasance" and other wrongdoing. No Akaku representatives were present.

All for now - watch for videotape of the meeting from Jeff Garland who also testified at the hearing.

______________________________________________

This summary provides informal notes, no warranty is implied nor intended.

Sean McLaughlin

Hawaii Consumers

DCCA: Dysfunction Junction

Director Recktenwald's possible intervention into what DCCA has consistently maintained is a private non-profit corporation highlights the money-slushing stealth tax functions of these state-created front groups posing as non-profit corporations.

The title "Dysfunction Junction" is a harsh indictment of the Department of Commerce and Consumer Affairs (DCCA) by the Community Television Producers Association (CTPA), a statewide association of community producers whose existence as a nonprofit predates all the Public, Educational, and Government (PEG) nonprofits created by DCCA and funded by the State of Hawaii with cable subscriber mandated money.

CTPA is deeply concerned about the most recent events occurring at Akaku, including the attempted raid on public producer resources by the educational sector, slugfests amongst board members, apparent bylaw violations, and finally the unwarranted intervention of the director of the Department of Commerce and Consumer Affairs (DCCA).

Akaku is emblematic of all the DCCA-created Public, Education, and Government (PEG) access organizations through which state-mandated cable subscribers monies flow (`Olelo on Oahu, Akaku on Maui, Ho`ike on Kauai, and Naleo on Hawai`i). The vast majority of this state mandated public money does not benefit the P in PEG but are collected, distributed, granted, and slushed back to government, and education without any accountability or performance reviews.

The DCCA Director's board appointment process of PEG boards is riff with perceived and actual conflicts of interests. These perceived conflict of interests include the Governor-appointed DCCA Director stacking PEG boards with State of Hawaii Government (including Department of Education, and University of Hawaii) employees, the appointments of a former DCCA director and deputy director to a PEG board (Robbie Alm, and Susan Doyle's appointments to `Olelo), and the DCCA Cable Television Division chief, Clyde Sonobe's, wife being employed by a subsidiary of Time Warner, the statewide monoploy cable operator franchisee Clyde Sonobe is tasked with regulating.

For years DCCA has consistently deflected public access producer complaints regarding PEGs back to the PEG access organizations for resolution. DCCA for years has consistently maintained that PEGS are not state entities, but private non-profit corporations, and they do not interfere in the affairs of private non-profit corporations. The vast majority of public producer complaints remain unresolved, and in fact PEGs have taken retaliatory actions against complaining public access producers. Retaliations imposed by PEGS while DCCA took a “ hands off approach” included “indefinite terminations” of public producer's access rights to facilities and production equipment. These “terminations” were without cause, and without due process. Such terminations deny “first-come, nondiscriminatory” access to facilities and production equipment guaranteed by federal legislation and Hawaii Administrative rules. DCCA stood mute.

When you are robbing Peter to pay Paul, Paul seldom objects. Politicians receive facilitated campaign services from the PEGs each election cycle. They are pleased with the money flowing from the cable subscribers through PEGs and back to the government, because with this stealth tax on the citizens of Hawaii funneled back to the State of Hawaii under the guise of “Public Access", they need not upset the voters by increasing taxes.

DCCA's past actions (and lack of action) lack of vision, lack of oversight, and lack of accountability over the State -created, cable subscriber-funded, PEG access non-profits has been less than rigorous and has resulted in DCCA's enabling education and government to pick the public pocket for their own uses.

The problems now facing Akaku have been known for years yet DCCA failed to act. Here are just some highlights from *“ Disputes over PEG Resources”* a report prepared for DCCA's Cable Television Division way back in 1997.

“Resolve the PEG structure in Maui County. DCCA should resolve the situation in Maui County, where a legally nonexistent but exceptionally influential consortium allocates channel time and funds. The current arrangement is untenable; decision making has already been diffused to the point of occasional paralysis. Moreover, DCCA's regular dealings with this consortium directly involve it in managing PEG access funds, which could make the portion it oversees a state agency for liability, sunshine law, and audit purposes.”

This “legally nonexistent” consortium of educational, government and private interests did not go away but went statewide and is now known as HENC, the Hawaii Educational Network Consortium.

The last two sections discuss options and recommended " The Role of DCCA". "It is time for DCCA to restore equilibrium by affirming or redefining the purpose of the organizations to which it delegated PEG access responsibilities. If DCCA does not take the lead, it cedes it to other entities, both private and government, which will continue to alter the system to fit their needs."

DCCA has failed to act and both private and government (education) have altered the system to fit their needs.

“The Issue: Why is Government Involved? To give government control of the money and channel time reserved for the community undermines the concept of community control, which is to allow access by all speakers.”

Akaku alone among all the PEG entities in Hawaii was the most vigorous defender of community control allowing access by speakers. Naleo, Olelo, Ho`ike, and have become fawning supplicants to powerful interests groups and have no concern for the public speaker. Naleo, Olelo, Ho`ike have become “captured agencies” most favored by DCCA. Akaku, representing the public speaker, has always been the problem child and is being punished for doing it's job. Got a solution? Your fired. See a problem? You are the problem.

The Governor and Attorney General of Hawaii need to be told by the citizens that we will not tolerate DCCA allowing special interests to run roughshod over the public speaker's voice. Unlike the unsupported subheading in the 1997 *“ Disputes over PEG Resources”* report which said “Splitting the baby is NOT the Answer” CTPA believes splitting the baby IS not only the answer, but the only viable solution. Slushing monies through a state created and controlled PEG “nonprofit” back to education and government while shafting the public speaker is the problem.

CTPA believes the time has come to operate and structurally split the three-headed monster of PEG. It is the only way to save the public voice. Let Government and Education totally control the education and government channels, and allow a public-speaker, membership elected public benefit corporation control the public channel. Splitting the baby will lay bare the stealth tax and allow viable public access channels to function with transparency, accountability, and oversight.

Ed Coll, President CTPA

Jeff Garland, V.P.

Carol Bain, Secretary

Wendy Arbeit, Treasurer

for updates on the Akaku Government takeover, go here: http://hpam.hi.net/saveaccess/ and here: http://saveakaku.org/ 

The Wiki that ate Public Access

"I was going to call it Quickweb,” Cunningham explained in an interview "and then I remembered these buses I took during a trip to Hawaii and I thought that's cooler!"

Read Wikimania. For $200,000 a year (which is a $100,000 less than Ho`ike's annual budget), one paid programmer, and hundreds of thousands of volunteers, wikifolks have provided and spun off a worldwide democratic knowledge base (based on inclusion) which puts to shame the weak PEG effort. Seems accepting "any" money that comes with "strings" assures corruption, discrimination, lack of participation, total collapse and utter failure. Public Access television's failure is drawn stark when contrasted with the success of the wiki movement.

• The Public Access television's mission is to provide first come, non-discriminatory access to encourage a diversity of ideas upon which a viable democracy depends.
• The non-profit Wikimedia Foundation's stated goals are to promote the creation of free educational content – and to make it available to the public free of charge.
• Public Access is funded with state mandated cable subscriber money.
• Wikimedia is totally funded with user voluntary contributions.
• New public access television users have declined dramatically H`oike for instance has had no new users according to the 2003-2004 required annual report to the Department of Commerce and Consumer affairs (DCCA).
• Wikimedia is "Created at virtually no cost by citizen-volunteers working collectively and using a wiki, which enables anyone to write and edit on a web page.
• According to a Time Warner motion for reconsideration of the DCCA Decision and Order No. 320 to give `Olelo a sixth channel date June 8, 2005, Time Warner noted that the five channels operated by `Olelo had "slightly over one half of one percent (.57 percent) of the total viewing hours. `Olelo is the richest public access entity in the US with around a five million dollar per year budget from state mandated cable subscriber monies.
• The wikipedia.org site has experienced explosive growth in the past two years and now ranks among the top fifty most visited websites in the world.

Finally notice Ward Cummingham predicts wikis and blogs will merge. I will go him one better and predict they already have. Well, I guess that's not a prediction, but a fact. The following technologies are coalescing into a single desktop interface;

• Wiki
• Blogs
• Bittorrent
• RSS
• Instant Messaging
• Podcasting

These technologies allow anyone of modest means to avoid the unpleasent gatekeepers down at the local public access station and distribute multimedia worldwide 24/7/365.

The chatter from th public access "industry insiders" at the recent annual ACM conference indicated they have a simpleminded after-the-fact awareness of this worldwide tidal wave about to break on their heads. Instead of blaming their mission failure on their noninclusive gate keeping behavior, and blame the medium of television and wonder "how they can we fit i" to the new media. But the success of wiki and other communication technologies is free, collaborative and under user control. There is really no place for those who would be gatekeepers filtering and controlling user content through the arbitrary applications of operating procedures to deny users first come, non-discriminatory access. The media was not the problem. The sticky strings of government and special interests monies corrupted public access in it's infancy. It never recovered Now, typical of the survival behavior of entrenched bureaucracies they are concerned with "industry survival" (i.e. keeping their jobs). "They left early, haven't arrived, and don't know they aren't going to." - Quote from the introduction of the film Seven Beauties by Lina Wertmuller.

Read "wikimania" at URL: http://www.roryoconnor.org/blog/

CTPA Complaint about Ho`ike's violation bylaws and DCCA requirement

Director Recktenwald,

It has come to the attention of CTPA that Ho`ike - Kaua`i Community Television, Inc. has held an election for a board member in violation of Ho`ike bylaws and a DCCA requirement as articulated by you in a July 13, 2004 letter to J Robertson, Ho`ike Managing Director. That letter stated "The PEGs shall be required to amend their bylaws and to complete their election process prior to September 30, 2004." Ho`ike did not amend their bylaws before September 30, 2004 as required by DCCA yet Ho`ike proceeded with the election in violation of their current bylaws

CTPA has already filed numerous complaints with DCCA regarding the many violations of fair and standard election practices incorporated into both Ho'ike's and Olelo's election processes. Your responses and insistence on correcting these practices have fallen well short of rigorous

What action, if any, will DCCA take regarding Ho`ike's failure to adhere to this DCCA requirement and Ho`ike's proceeding with an election in violation of its bylaws? We are hopeful that DCCA's action will consist of more than a nunc pro tunc excuse that places the stamp of legitimacy in this flawed election process

Edward Coll - CTPA

"Orders from Upstairs" confuses Ho`ike board

Confusion reigned at the Ho`ike resulting in a motion to defer action at the July 28, 2005 Ho`ike Board of directors meeting. The confusion simple stated was if the bylaw modification was "recommended" or "mandated" by the Department of Commerce and Consumer Affairs (DCCA). Managing Di