Persistence of Vision

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.

                                    

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

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.

The inconvenience of having a new (digtal converter) box installed.

Aloha Director Recktenwald,

In Decision and Order 326, how did DCCA come to the following conclusion:

"The Department believes that relatively few viewers would take advantage of the offer (of a free digital converter box), because of the inconvenience of having a new box installed." (emphasis added in parenthesis above)

According to Oceanic Time Warner one merely has to either pick up a converter at their local OTW center and screw on two cables, or OTW will deliver & install it for $28.00, which I'm sure DCCA could have had waived for the intended purpose were they truly acting in the Public's best interest. Every analog cable subscriber I have spoken with said the minor inconvenience would not deter them from acquiring the benefit, especially in light of the major annual cost savings. Access to the converter would also allow non digital subscribers to access 'Olelo's program "Candidates Debates" and local newscasts Oceanic provides on their on demand "iControl" channel(s).

I would like to be able to view the documents DCCA utilized to come to their incorrect conclusion "that relatively few viewers would take advantage of the offer".

I will find this information most informative, especially in light of ex Oceanic employee and 'Olelo CEO Keali'i Lopez's report to 'Olelo's Board of Directors on December 8, 2005:

"Sixth Channel Request: Keali`i Lopez updated the Board on ‘Ōlelo's request for a sixth channel from the Department of Commerce and Consumer Affairs (DCCA). In June, when Time Warner Oceanic Cable Television appealed the DCCA’s decision to give ‘Ōlelo a sixth channel, DCCA asked Time Warner Oceanic Cable Television and ‘Ōlelo to negotiate an alternative. However at this time (12/08/05), it does not appear that an agreement is likely. The DCCA will likely issue a “finding of fact”, which means that the DCCA may ask for feedback from the general public and will make its decision based on the feedback received. " (emphasis added)

Sincerely,

jg

DCCA Decision and Order 326

Read D&O 326 at the following link. . .

http://www.hawaii.gov/dcca/areas/catv/decisions_orders/files/326.pdf

News Flash - Time Warner does Hawai'i - PEG gets a new channel!

Fascinating narrative is provided in State of Hawaii's Decision and Order by the Department of Commerce and Consumer Affairs (DCCA) that has temporarily dedicated a new PEG access channel, the sixth analog TV channel for Honolulu to be operated by community access provider 'Olelo: Community Television. According to 'Olelo, the channel will primarily be used for government access programming, including gavel-to-gavel coverage of the State Legislature. The next session of the Hawaii Legislature convenes on January 18, 2006.

The Decision and Order document (D&O No. 326) is dated December 28, 2005, apparently posted online January 11, 2006, and does not take force until mid-February 2006 (around Valentine's Day). D&O No. 326 is online at http://www.hawaii.gov/dcca/areas/catv/decisions_orders/files/ .

While delaying the activation of Honolulu's sixth PEG access channel for over a year (the original request was October 8, 2004), the DCCA's process outlined in D&Os No. 326 and 320 reveals potentially corrupt inside dealing with complex negotiations to trade a clear franchise requirement for prospective digital media services. For those interested in Time Warner's tactics to divert legitimate franchise obligations, D&O No. 326 makes a worthy case study. Ultimately, 'Olelo held their ground and insisted that current State cable franchise obligations be met.

Concerns have been raised that DCCA apparently acts as the agent of Time Warner, advocating Time Warner's positions while ignoring public interest considerations and requiring 'Olelo to meet costly and onerous reporting requirements before finally granting a temporary activation for the new PEG access channel. Local groups representing cable TV consumers, community access producers and media reform advocates are questioning D&O No. 326 and requesting public records relating to State deliberations, including notes of private conversations between Time Warner and the State regulator.

According to the Order, Time Warner will decide which analog channel to replace in order to fulfill their franchise obligation. The two adjacent channels to the current PEG access lineup (analog channels 52-56) are Home Shopping Network (57) and CSPAN2 (49).

Background -

The State of Hawaii built strong community access TV operations following the revision of State laws governing cable TV regulation in the mid-1980's. Public interest regulation of cable TV in Hawaii effectively ended in the mid-1990's when a new Cable TV Administrator was appointed by then Governor Cayetano (and subsequently re-appointed by Governor Lingle). Under the current Administrator's tenure, the Hawaii Department of Commerce and Consumer Affairs (DCCA) Cable TV Division has substantially declined, consistently favoring Time Warner with questionable decisions tainted by potential ethical violations (see Our Cable Company, April 16, 2003 http://honoluluweekly.com/archives/coverstory%202003/04-16-03%20Cable/04-16-03%20Cable.html

How the state's secret deal with AOL/Time Warner and Oceanic imperils the future of public access TV in Hawai‘i ) at the expense of consumer and other public interests including PEG access. Time Warner became the State's only cable TV operator under the current Administrator's watch, having consolidated ownership of all Hawaii's cable systems in five counties on six islands.

Today's message summary - sometimes a corrupt system can create a beneficial result, but it ain't easy!

Aloha,

Sean McLaughlin

Hawaii Media Action Group (HiMAG), correspondent
e: sean808@earthlink.net
t: 808-447-9610
c: 808-283-3174

Hawaii Consumers
P.O. Box 179375
Honolulu, HI 96817

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/ 

PEG annual reports gather dust on shelf

Aloha Glen,

I can only assume that the reason for the less than timely post of these now 5 1/2 month old documents is because you care less about PEG issues, and even less of those interested in them. Waiting for Akaku's report, which is for a different fiscal year than the other PEGs, is not a valid excuse to outdate timely documents by 6 months! Post them when you get them! Why the intentional delay of the majority of reports that affect the majority of the states population? We both know that money can't be an excuse as CATV has been over collecting fees (far more than even Time Warner) for at least the last 15 years which is documented. It would also appear these funds have been laundered into taxes, which I feel is illegal, and if not, should be!

I see it takes only a matter of weeks to post your bogus, manipulated reviews and D&O "motions" facade, both of which I predict will become, ( as Director Recktenwald put it at the June 9, 2005 Hilo CAC meeting) , "just another study collecting dust on a shelf." PEG Annual Activity Reports and other PEG related documentation has proven to consistently take far longer to post, and are also consistently posted incorrectly at first, so efforts must be duplicated (waste of Public funds) . I sincerely hope " The new process that is used to post these reports [that] will ensure these documents are ADA compliant " is designed to do it right the first time, or at least you will do a more thorough inspection of all future documents to make certain that they are corrected before posting online, not after. Please be more considerate of wasting; your time, public funds, the public's time having to download twice, and bandwidth.

FYI Annual Activity Reports are the tool for DCCA and cable subscribers to determine if funds they are mandated to pay (rather than the cable company, per DCCA's order) are being spent wisely and/or in the public's best interests. Posting these documents so late in the year only serves Cable Television Division & PEG entity interests by delaying any meaningful public opinion until yet another year passes, so opinions are moot.

I look forward to the day when the Cable Television division puts as much effort into protecting subscribers and the general public as it spends on facilitating corporations like Time Warner, PEGs, Maui Developers, and Government institutions. After all, subscribers and the general public constitute a majority. Turn CATV's focus from special interests to more of the Public's best interests. We cable consumers are denied the assistance of Consumer Protection, so CATV is our only protection, and your