Persistence of Vision : Opinions

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:

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.
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.
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.
Provide service to individuals, not just to organizations
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)
Clear and fair policies that support the mission (IE: no preferential treatment to most favored)
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)
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.
Require the Annual report to be a public record with accountability enforced by DCCA
Annual financial audit by 3^rd party hired by DCCA (NOT PEG entity- as accountant will have conflict of interest)
All executory contracts for over $10,000 should be public record.
Sub-contracts over $10,000 should be let for open bid process and publicly advertised as a Request for Proposal
Annual elections by membership, with voter lists a public record, and elections must follow standard, fair elections practices.
A recommendation offered by DCCA consultants was once suggested at at least half of the board be elected. This is a good recommendation.
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.
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.

Posted by Carol Bain at 5:32 PM
Categories: History, Hoike, Opinions

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

Posted by CTPA at 5:33 PM
Categories: Akaku, Assorted Shenanigans, Audio, Correspondence, History, Hoike, News, Olelo, Opinions

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

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

Chief Procurement Officer/State Procurement Office Administrator Fujioka,

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

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

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

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

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

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

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

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

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

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

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

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

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

Mahalo, respectfully

John Morales

Posted by Persistence at 2:18 PM
Categories: News, Opinions

Statewide meetings regarding RFPs for PEGs

Aloha Mark,

For the record:

I was shocked to see that DCCA has set up its meeting on Maui at Maui Community College, especially in light of what has been happening on Maui for the past year.. The appearance already is that you sympathize with MCC regarding PEG matters and have given them, as the lead in the "E" sector, an advantage to potentially acquire more unaccountable funds from franchise fees. You do so in spite of the HENC agreement saying that no HENC members will go after any cable franchise fees not otherwise committed to them.

"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."

  Your CATV administrator and HENC advisory council member Clyde Sonobe appears to not have looked hard enough for a more neutral facility for the Maui meeting. Instead it appears he has intentionally given an unfair advantage to the "E" sector over "P".

    I do hope DCCA is not involved in assisting Everett Dowling in setting up a nonprofit to bid on and receive Maui PEG franchise money.

    I also noted in DCCA's Press Release regarding the statewide meetings that the examples given are relatively the same as 'Olelo & DCCA have continually used in their studies and assessments which are designed to make the corporations already in place look good, as well as DCCA for creating them. Putting forth examples that are intended to have coached speakers address the present takes focus off what the future should/could be. It also provides a platform for sheople to read their PEG provided scripts, as witnessed at the PEG Plan hearing. Lack of competition has hurt Hawai'i citizens in that the lack has essentially removed the will of the current corporation to improve or even keep up with "cutting edge" media creation and distribution, thus the public still has the minimum tools to distribute their message provided in a discriminatory manner. One only has to look at the numerous other PEG access corporations in the country that provide more access for less than 20% of the funds spent on Oahu to see how far behind DCCA has allowed state PEGs to lag.

   The Community Television Producers Association of Hawai'i (CTPA) believes there should never be an exemption given to DCCA from HRS 103D regarding PEG Access nonprofit corporation contracts with the state. The bid process should be mandated to be "open bids" so the people can see how their money is proposed to be spent so they can comment throughout the process. Competition breeds innovation and excellence. Automatically renewing PEG contracts annually removes any incentive for improvement.

Sincerely,

Jeff Garland

Posted by Jeff Garland at 11:09 AM
Categories: Akaku, Assorted Shenanigans, Correspondence, HI Statues and Admin Rules, Hoike, News, Olelo, Opinions

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

Posted by Jeff Garland at 4:09 PM
Categories: Assorted Shenanigans, Correspondence, News, Olelo, Opinions

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/

-###-

Posted by CTPA at 10:28 AM
Edited on: Monday, December 19, 2005 10:48 AM
Categories: Akaku, Assorted Shenanigans, HI Statues and Admin Rules, History, Hoike, News, Olelo, Opinions

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/

Posted by CTPA at 4:49 PM
Categories: Akaku, Assorted Shenanigans, Correspondence, Hoike, Olelo, Opinions

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 rules do not fully protect individuals under state law.

It is your division that makes the public pay the rent for the use of their public property that Oceanic Time Warner uses to make money off of. You could assess the fee to Time Warner rather than allowing Time Warner to extract it from the property owners. If it were Time Warner who had to pay the fee, I'm sure you would be more considerate of waste as I'm sure you have a lot of respect for Oceanic Time Warner's well compensated attorneys. I wonder if CATV had made Oceanic pay the fees rather than allowing them to pass it on to the public, if Oceanic would have sued DCCA a long time ago for over collection, thus potentially saving subscribers millions of dollars?

I look forward to the successful post of Hawai'i PEG access corporations 2004 Annual Activity Reports and associated documents within the next two weeks.

Sincerely,

Jeff Garland

Posted by Jeff Garland at 3:32 PM
Categories: Correspondence, Olelo, Opinions

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/

Posted by Edward Coll at 10:15 AM
Edited on: Monday, August 15, 2005 10:17 AM
Categories: History, Hoike, News, Olelo, Opinions

"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 Director J. S. Robertson insisted it was "required" by DCCA Director Mark Recktenwald, other board members seemed uncertain.

Listen to a podcast of the Ho`ike board discussion on this bylaw amendment click on the following URL:

http://www.kauai.net/bm/

Regardless of whether the election was "suggested" or "mandated by the Director of DCCA, an election had already occurred, and Robertson described the after-the-fact bylaw amendment as "housekeeping"

The election for a producer position on the board resulted in a lawsuit initiated by `Olelo the PEG provider on Oahu

In that case a recent court ruling from First Circuit Court Judge Victoria Marks ruled that Public, Education, and Government Access organizations (PEGs) were not agents of the state, and therefore not compelled to follow State Sunshine (HRS92) and Open Records Laws (HRS92F)

In part the order found "There is no Government control over `Olelo's activities."

Mananging Director Robertson was partly responsible for the confusion. Although Robertson cited the Court Ruling and concluded that, "Ho`ike was not a state agency" he failed to inform the Ho`ike board that OIP had appealed the ruling http://hpam.hi.net/OLELOvOIP/#appeal.

The Ho`ike board's confusion (given the court's finding) was how the DCCA could mandate the board of a private non-profit corporation hold an election if indeed it was not a state agency and "there is no Government control." `Olelo took the State Office of Information Practices (OIP) to court after OIP opined that under State Open Records laws `Olelo (and Ho`ike) were required to disclose the phone numbers and residential addresses of eligible voters to candidates running for the elected director position. Both `Olelo and Ho`ike refused

The candidates argued they were entitled to the phone numbers, and residential addresses because the information was "Required for Public Disclosure." by both `Olelo and Ho`ike) on the videotape submission forms required to broadcast a program on public access.

Candidates wanted the information to contact eligible voters to solicit their votes. Candidates argued that being denied access to eligible voters while PEG board members and personnel had exclusive access to voter contact information created the possibility of election manipulation by the PEGs. Candidates feared PEGs could use such information to covertly campaign for favored candidates

Candidates also argued that the inability to contact eligible voters made the election a farce, because the PEGs could skew the election results with sole access to such information to "PEG favored candidates" and their was no way of proving otherwise. Both `Olelo and Ho`ike deny such allegations and as the candidates feared the plausible denibility" makes election manipulation impossible to prove

Regardless of whether the elected director's position and the election to fill it is "suggested" or "mandated" by DCCA it appears to have a chilling effect on the board actions of what the court has ruled is a private non-profit corporation

Further adding to the confusion the proposed bylaw amendment gives the Director of DCCA the power to remove the elected director. Why a board of a private non-profit corporation would propose a bylaw modification that gives a government official the power to remove one of it's directors is the unanswered question that creates doubts about how independent from Government control PEGs really are. This is especially true since the Director of DCCA also has the power to appoint and remove the majority of board members which the director appoints.

Listen to a podcast of the Ho`ike board discussion on this bylaw amendment click on the following URL:

http://www.kauai.net/bm/

Below is the proposed bylaw amendment deferred by the Ho`ike board.

--- begin proposed bylaw amendment ---

ARTICLE VI. DIRECTOR

Sec. 6.2 Number of Directors:

The number of authorized Directors of the Board of the corporation shall be NINE (9). The Director of the DCCA shall appoint six (6) Directors, two (2) Directors shall be appointed by the Cable Operator and one (1) shall be elected in accordance with Sec. 6.9c.

--- begin proposed bylaw amendment ---

Sec. 6.9c Elected Director:

The Board shall authorize the Corporation to administer an election among the Corporation's public, educational, and government users to fill one (1) and only one position, which position was formerly held by an appointee of the Director of the DCCA (the "Elected Director"). Only one (1) Elected Director may sit on the Board at any given time

The election for the Elected Director shall be completed and the results of the election forwarded to the Board within a reasonable time prior to the Board's first meeting of the calendar year. The Elected Director's term shall be set in accordance with Sec. 6.8

If at any time during the first year of the Elected Director's term the Elected Director terminates the position, or is removed for cause pursuant to Sec. 6.10, the vacancy shall be filled by the individual who has received the first, second, or third highest vote total in the original election, in descending order, until the vacancy is filled, provided that if for any reason the vacancy is not filled by one of these three individuals, the vacancy shall be filled in the manner prescribed for filling such a vacancy after the first year of the term of the Elected Director

If at any time after the first year of the term the Elected Director terminates the position or is removed for cause pursuant to Sec. 6.10, the Board shall direct the Corporation to conduct an election to fill the position, provided that if the vacancy occurs during the final six (6) months of the Elected Director's term, the Board may at its discretion allow the position to remain vacant pending completion of the term

Sec. 6.10 Resignation or Removal

The Director of the DCCA may remove at any time, with cause, any member of the Board that he/she has appointed or the Elected Director.

--- end of proposed bylaw amendment ---

The 600 pound gorilla in the room and the unanswered question is, "Why would a private non-profit corporation, that is not a state agency, grant a state agency (the DCCA) the power to appoint, remove, and mandate their election processes for a board seat?

Listen to a podcast of the Ho`ike board discussion on this bylaw amendment click on the following URL:

http://www.kauai.net/bm/

Posted by Edward Coll at 12:48 PM
Edited on: Friday, July 29, 2005 12:59 PM
Categories: Hoike, News, Olelo, Opinions

Akacoup Maui - State stifles voice of an access advocate

Though a clause in the State's Oahu Educational Access Agreement contract¹ would have you believe otherwise, the Hawai'i Educational Networking Consortium (HENC) Advisory Council members' affiliate organizations all came together with campaign contributing development corporations to stifle the voice that helped convince the State to provide for unfettered FREE SPEECH of all Hawaiians through PEG access corporations.

Legislative history already shows that Sean McLaughlin was instrumental in starting PEG access in Hawai'i, and History will show that he was the leading advocate for it's rapid growth through inclusion of and access to "cutting edge" communication MEDIA technologies.

With him now out of the "network", I predict the Hawai'i PEGs inclusion for training of the less controllable mediums will have slower, if not stonewalled progress, and the Public portion of the PEG pie will continue to diminish at an accelerated pace. I also predict this will be this State's level of empowering its citizens, in spite of conclusions reached in DCCA's recently commissioned Merina and Company, LLP's management letter to the contrary. ²

Hawai'i PEGs know that their welfare funds could soon disappear, yet they have no substantial plan to become self-sufficient should this potential reality come to fruition.

Unfortunately, till the end, I feel we can only expect more quasi-government control of Hawai'i PEGs, while continuing to avoid giving the appearance the State Actors " micro-manage" them. We'll just have to wait and see if Office of Information Practices Director Les Kondo has enough cahones to appeal Judge Victoria Marks obviously flawed, timely orchestrated court ruling that apparently no Hawai'i PEG is an "agency" under HRS 92f UIPA. If Kondo doesn't, I feel sorry for you reporters that would attempt to access the truth about any Hawai'i PEG. All that is left available are the minimum reports DCCA requires through their minimal, situation accommodating contracts.

Sean had a solution to this mess, he got fired!

Lucky We Live Hawai'i?

Apparently the new strategically planned model for PEG in Hawai'i is "Political Parasites, Propaganda, Predatory not-&-for-Profits, Education, and Government", with more emphasis on the P, but too late for the Public. It's safe to assume the "P" will never stand for Pono. :'(

Jeff Garland
Hawai'i Public Access Media
Vice President, Community Television Producers Association (CTPA)

Posted by Jeff Garland at 1:24 PM
Categories: Assorted Shenanigans, History, News, Opinions

Update on Olelo versus OIP June 9, 2005

According to federal and state franchise laws, in exchange for the use of the public rights-of-way to lay their cables, the cable TV franchise holder (AOL Time Warner) is required to set aside channels and provide funds for Public Education and Government Access TV. To deliver this service, the Hawaii state Dept. of Commerce and Consumer Affairs created several non-profit organizations statewide, including `Olelo on Oahu. These organizations receive several million dollars annually from cable subscribers.

In September 2002, in response to an inquiry by the LWV-Kauai, the Office of Information and Practices (OIP) opined that because DCCA created these organizations for a government purpose, appoints their boards and otherwise influences these organizations, they are subject to state sunshine laws (HRS92 & 92f).

In 2004, `Olelo took OIP to court to challenge this opinion. On June 9, Judge Victoria Marks ruled that PEG entities are not state agencies, and therefore are not subject to open records laws. OIP is waiting to read the official ruling before deciding whether to appeal.

Posted by Carol Bain at 11:34 AM
Edited on: Tuesday, June 21, 2005 11:43 AM
Categories: Correspondence, Opinions

Incapable of doing the simplest thing

The 1968 Sony introduction of the Porta Pak birthed the possibly of turning passive TV viewers into active TV producers. The possibility now in the hands of the individual was portable video, a new and powerful tool to be used for free self expression and positive social change. But alas without a TV channel to broadcast the speakers message it was incomplete, and cried to be made whole.

Nevertheless this portable video technology set imaginations on fire. Beehives of video collectives formed and gathering around the cool glow of the cathode ray tube to watch what they had wrought. They had no choice but to gather in groups around the new electronic fireplace because without a TV channel to broadcast the video it was the only way to watch the videos they were producing.

Providing the public access to a TV channel was the missing link that ?Public Access? was supposed to provide.

Job one of public access was to operate the TV channel for the speaking people. Job two is to provide access to training, and TV production technology so the people may speak on the public channel. Job three is to provide access on a first come non discriminatory basis.

How this elegant triad of tasks morphed into the dis-abling bureaucratic monster of "community building", "block programming" and "facilitated productions" is the progeny of an unholy forced marriage of Public Access with the Education and Government sectors.

The comingling of funds and responsibilities, the lack of transparency, accountability, and oversight has allowed G & E to dominate P, and G&E have treated P rather badly -- much like the mean step-sisters treated Cinderella. G and E are not twins, they are identical one-and-the-same. G&E is an organized special interest hierarchy exerting absolute control over the non-hierarchical, disorganized P. If G robs P to pay E -- E seldom complains. Poor P. Maui was only the most recent assault on P by G&E.

In 1969 at an art exhibit called “TV As A Creative Medium,” Paul Ryan in an art performance called Everyman's Möbius Strip, used a Sony Porta Pak to provide a private video booth which allowed people to record themselves on video, and watch themselves played back before the tape was erased for the next person.

At it's most fundamental level Public Access' mission was to hook Ryan's video booth to a channel so we could all watch.

After 36 years -- is it not obvious -- Public Access has failed this mission! To my knowledge no PEG entity has made access to an automated video booth a regular service to the public. Why? Because G&E will not permit immediate unfiltered direct access to the mass media by individual members of the public. G&E have manned the access gates assuring adequate access for themselves, while muting the public voice.

Posted by at 10:40 AM
Categories: History, Opinions