April 19, 2006


FROM: Community Television Producers Association (CTPA)

Carol Bain, president

PO Box 662320, Lihue, HI 96766, 808-246-2111
bain@kauai.net


TO: Chief Procurement Officer, State of Hawaii

Aaron Fujioka <aaron.fujioka@hawaii.gov>

Kalanimoku Bldg., 1151 Punchbowl St.

Honolulu HI 96813

PO Box 119

Honolulu HI 96810-0119

Ph: 808 587-4700

Fax: 808 587-4703



RE: Request for Exemption from Chapter 103D, HRS by DCCA for PEG Access Services submitted April 12, 2006


Introduction:

Please reject the DCCA request for an exemption from state SPO law.


To properly frame the issue one must consider not only the ramifications of issuing an RFP, but also the historical performance of the PEGs operating as a sole source contractor. In this historical review one will discover concrete examples of the problems DCCA fears the RFP process would create.


The RFP process is both practicable and advantageous to the state. A competitive RFP process offers the possibility of correcting this ongoing dis-functionality currently experienced by users of PEG services.


Below, find DCCA's rationals for requesting an exemption, and CTPA's responses favoring denial of such an exemption.


(To facilitate reading, the “DCCA response” appears prior to each DCCA statement, and CTPA response appears prior to each statement).


Analysis of Request for Exemption - item 8: Explanation:


DCCA: For the following reasons, procurement is either not practicable or advantageous to the state, or both:


    The PEG contracts are fundamentally different from other government contracts, in that they involve a unique service: facilitating the exercise of citizens’ free speech rights. Public access channels have been characterized as the video equivalent of the speaker’s soap box or the electronic parallel to the printed leaflet.


CTPA response: PEG contracts are not unique from other government contracts. Each government contract serves a particular purpose or service.


Protecting citizen's right to the exercise of free speech is a fundamental function of government, and this contract is not unique in that function. The government has long history of enforcing the soapbox speaker and leaflet distributor's rights to exercise their free speech. Protection is a form of facilitation devoid of censorship (content control). The Government protects the soapbox speaker and pamphleteer, but does not control the content, time, nor place of such speech.


It is the fundamental role of government to articulate what a contractor may or may not do to assure citizens free speech rights are not being violated by the contractor (who is serving as a government proxy in protecting free speech rights).

Regarding policy choices, the RFP should mandate an absolute stance of neutrality on the part of the contractor. Contractually obligate via the RFP process that contractors SHALL serve speakers on a “First-come, nondiscriminatory” basis. Doing so would assure Government has not outsourced their traditional and primary responsibility to protect the free speech rights of citizens.


DCCA: In determining how to facilitate the exercise of those rights, PEG access operators face a wide range of difficult policy choices, not ordinarily faced by run-of-the-mill government contractors.


CTPA response: The criteria for policy choices (to facilitate citizens free speech rights) should be specified by Government in the RFP. While policy choices by the contractor may be at the contractors discretion, they must adhere to criteria articulated in the RFP. Failure to articulate such criteria in the RFP grants carte blanc permission for DCCA to abdicate the traditional responsibility of Government. Protecting free speech rights is not a responsibility that should be delegated to the contractor but articulated in the RFP.


    DCCA response:


Among other issues, the PEG's must address:


  1. the frequency and times at which programs will air initially,


    CTPA response: The RFP should specify programs will air on a first-come, nondiscriminatory basis. When channel capacity is reached the program first in is first out to be replaced by the first incoming program, etc.


DCCA:

  1. whether it is appropriate to engage in “block” programming, e.g., grouping programs with certain subject matters together at the same time,


    CTPA response: The RFP should prohibit any block programming as it violates the contractual obligation of first_come, nondiscriminatory access by allowing the contractor to control the time and space of speech based upon content (by grouping “subject matters together at the same time”).


(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


DCCA:

  1. whether to facilitate productions (i.e., having PEG personnel directly participate in producing programming) by members of the public who want their message aired but cannot create the programming themselves,

    CTPA response: The RFP should contractually prohibit “facilitated productions.” The RFP should contractually obligate the contractor to train people to speak for themselves on a first-come nondiscriminatory basis.


(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


DCCA:

  1. whether to produce programs which allow political candidates to express their views, and if so, the appropriate format and ground rules for those programs, and (5) how often, and when, programs will be replayed. This list is intended to be illustrative, not exclusive. Government contractors do not typically exercise such wide-ranging discretion, nor do they address issues so fundamental to our citizenship.


CTPA response: The RFP should contractually obligate the contractor to serve political candidates on a first-come, nondiscriminatory basis. To allow the contractor to discriminate for or against speakers based upon a classification system (ie “political candidates) violates first-come, nondiscriminatory access.


(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


DCCA: DCCA’s approach has been to delegate the resolution of these issues to the PEG entities, within certain parameters. Over time, each PEG has developed its own set of procedures, policies and practices to address them. They have done so in light of the unique circumstances that exists in each of the counties (as well as the communities within those counties) that they serve. There is a substantial risk that this institutional knowledge would be lost if the PEG contracts were procured.


CTPA response: Please require DCCA to define these “certain parameters” DCCA (presumably) has imposed upon the PEGS, and request DCCA provide SPO with evidence that the PEGs successfully resolved complaints from speakers about violations of these admittedly idiosyncratic procedures, policies, and practices by PEGs. The experiences of CTPA members has been that few if any of these complaints have been resolved.


(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


DCCA: Moreover, in devising an RFP, one key question will be how to address these difficult policy issues.

CTPA response: Exactly. This is a positive attribute of the RFP process, for it compels DCCA to specify criteria which any contractor policy formulation must comply with to assure protection of the first-come, nondiscriminatory access rights of the speaker.


(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


DCCA: One approach would be to have the RFP very specifically define what the contractor must do with regard to those issues. The problem with that approach is that government will then be effectively making decisions that have up until now been made by the PEG boards, even though the PEG boards are more familiar with the needs of their respective communities.


CTPA response: The assumption that board members (the majority of whom are government appointees) are more familiar with “communities” and the relevance such knowledge has in providing neutral first-come, nondiscriminatory access to PEG services is highly speculative on the part of DCCA. Please request DCCA provide SPO with details as to why is it problematic to protect the free speech rights of the speaker via contractually requiring the contractor comply with criteria specified in the RFP.


DCCA: Another approach would be to have the RFP for each county reflect the policy choices that have been made by the existing boards. The problem with this approach is that it assumes that the issues are static. In fact, they are not—they constantly change as the community and other conditions change.


CTPA response: This approach is the current model of the sole source policy, and it has failed. The experience of CTPA members indicates the issues do not “constantly change”, but rather cycle endlessly around a core set of discriminatory practices by PEGs that DCCA has allowed to go unresolved for many years.


(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


DCCA: Alternatively, the RFP could leave it to the contractor to resolve these issues as it sees fit. However, the question then would be whether the contractor would or could be a neutral decision-maker.


CTPA response: Again, this “alternative” is the current sole source practice, and the history of unresolved speaker complaints stands as testament to this failed DCCA policy.


(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


DCCA: In the current system, the PEG entities are managed by boards of directors, the majority of whose members are appointed by the Director of DCCA; other directors are appointed by the cable operator, and one director on each board is chosen by open election.


CTPA response: CTPA would like to draw to SPOs attention that the “open election” cited by DCCA is in fact a closed election with a unique and highly anti-democratic feature. This feature is that the PEGs refuse to provide voter contact information (that PEGs obtained under the pretense of “required for public disclosure”) to the candidates standing for election. Additionally, the director of DCCA in fact “appoints” this board member. Finally, PEG bylaws (condoned by DCCA) confer a second class status on this presumptive “elected member”.


(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


DCCA: Although some observers may disagree with some of the decisions reached by the boards, overall, the Department believes that this system has resulted in boards that are familiar with their communities and that try to make decisions that are fair and even-handed.


CTPA response: A simple examination by SPO of the large number of unresolved speaker complaints to DCCA regarding decisions reached by PEG boards should suffice to undermine any confidence that DCCA's “belief” has any credibility. This examination will reveal the current sole source PEG contractors have been far from neutral, fair or even handed.


(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


DCCA: The procurement process is intended to ensure government neutrality, but leaves open the possibility that successful bidders may themselves have bias. Simply put, there is a distinct possibility that a winning bidder would not be as neutral as the existing PEG boards.


CTPA response: DCCA is assuming the sole-sourced existing PEG boards are “neutral” yet a historical review of (still unresolved) speaker complaints indicates this is far from the facts. The “distinct possibility” DCCA fears is a current reality. CTPA believes an RFP with clearly spelled out criteria will assure this current non-neutrality by PEGs can be addressed.


(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


DCCA: For example, it could have a particular ideological particular point of view, or have institutional priorities that cause it to tilt in favor of certain types of speech. While the contracts could include safeguards to prevent those factors from affecting the decisions that are made, there is a risk that there could nevertheless be a potential bias that could result in some points of view not being treated fairly.


CTPA response: This is in fact the current situation under the sole-sourced contract that is faced by the public speaker. CTPA has ample evidence of ideological and institutional biases by PEGs.


(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


DCCA: Transition issues are another concern under the circumstances. Questions include whether the process of turning over assets (e.g., those that were purchased with cable fees) to a new entity will go smoothly? If there are disruptions in staff or with regard to equipment and facilities, will they affect services?


CTPA response: Transition issues occur when any new contractor is a successful bidder, and should be addressed in the RFP.


DCCA: These are difficult issues, and the process of developing an RFP that will address them will itself be a challenging one that will require significant input from the community and other affected parties.


CTPA response: Assuring PEG neutrality and first-come, nondiscriminatory access need not require extensive input from the community as federal legislative intent is well established. When neutrality is the issue community input (with the exception of speaker complaints about PEGs lack of neutrality) is not a substitute for an RFP with well written criteria.


DCCA: It is doubtful that the cable television division will be able to address them using its existing in-house resources, and accordingly it will need to contact outside consultants for assistance in developing the RFP. The cost of that effort is another factor that must be considered in determining whether an RFP will be advantageous to the state.


CTPA response: The DCCA has had many outside consultants and years to address these fundamental issues, but failed to apply the advice to guide policy. This ongoing violating the state procurement laws has allowed DCCA to avoid doing it's job, and ignore the advice of their consultants.


(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


DCCA: Considering all of these factors, the department has concluded that the costs and risks of issuing an RFP at this time do not outweigh the potential benefits. Accordingly, it is our conclusion that issuing an RFP at this time would neither be practical nor advantageous to the state, and we respectfully request an exemption from the procurement code.


It is our understanding that even if an exemption is granted, we would retain the discretion to issue an RFP in the future, should we conclude that the current approach is not working and that a PEG provider is not providing the services that the public deserves. We believe that allowing the department that flexibility in these unique circumstances best serves the public interest.


CTPA response: CTPA disagrees. The nightmare scenario DCCA envisions being created by complying with state procurement law is already a current reality that DCCA has failed to address. The current providers, with few notable exceptions, are “not providing the services that the public deserves.” The RFP process is the only mechanism that will address these current problems and assure the transparency, accountability, and oversight required to protect the speaker's free speech rights, In one case, a current PEG access provider reported no new users for a full year.


The item below lists item 9 on the SPO-07 form:

9. Details of the process or procedures to be followed in selecting the vendor to ensure maximum fair and open competition as practicable:


DCCA response: The vendors listed above are the long time service providers for PEG access services in the various cable franchise areas throughout the State. If an exemption is granted, the DCCA plans to negotiate contracts with the existing PEG access organizations.


CTPA response: To allow the requested DCCA exemption to current recipients of sole source contracts is to reward the past violations of state procurement laws by both DCCA and reward the current PEG corporations who have benefited improperly and illegally from these sole-source contracts for many years.


Allowing a state created nonprofit to establish its bona fides as a credible contractor by granting sole source contracts in violation of state procurement law and then requesting an exemption years later from the RFP process and continuing to contract with these same entities is a corruption of the concept of “practicable and advantageous to the state.”


This action would allow accomplices of an illegal actor to benefit from the fruit of the poisonous tree.


Contrary to DCCA's assertion otherwise, there are many competitive organizations, both for- and not-for-profit corporations that would be attracted to the state mandated funding offered in a RFP process. It may be argued that a conflict of interests due to past relationships established by the not-for profit organizations with DCCA constitutes an unfair advantage benefiting the past sole-source designee.


The item below lists item 10 on the SPO-07 form:

10. A description of the agency's internal controls and approval requirements for the exempted procedures.

DCCA: The Cable Television Division (CATV) will develop the scope of required access services performance measures and reporting and evaluation requirements for the PEG access providers and will negotiate with the PEGs to have those items incorporated in the contracts.


CTPA response: The promise “will develop” is not an adequate response. This is far from the SPO requirement to “detail the processes or procedures to be followed”, but rather a vague statement of possible future action devoid of accountability. DCCA has failed to do so during their multi-year violations of state procurement law.



(Unresolved speaker complaints of past and current PEG policy are on file with DCCA)


CTPA maintains that only by requiring DCCA to comply with the RFP process will DCCA be compelled to formalize the criteria, reporting requirements, performance measures, and evaluation requirements necessary for government to fulfill its traditional role of protecting citizen's right to free speech and end the non-neutral, non first-come, discriminatory access currently faced by the public speaker. This is evidenced by the inadequate, non-detailed response to item 9.


CTPA RECOMMENDATION:

Reject the DCCA request for exemption based on the following reasons:


  1. DCCA provided inadequate detail of scope of services in this request (see item #9)

  2. Two of the preferred sole source vendors, `Olelo and Ho`ike, have demonstrated refusal to comply with State Open Records laws HRS-92F(UIPA) [Olelo versus OIP). The DCCA's 2004 PEG Access plan recommendation was for all PEGs to comply with State Sunshine Open Meetings laws and Open Records laws.

  3. List of preferred sole source vendors have demonstrated inability to establish and comply with policies of first-come, non-discriminatory services. Current PEG providers have demonstrated bias by producing programming for some entities but not others with inconsistent criteria for decision making.

  4. The nightmare scenarios postulated by DCCA as the rationale for requesting an exemption have already occurred as a result of DCCA's inaction during the eleven-year violation of state procurement law.

  5. Nowhere in Federal Law (47 U.S.C. § 531) is there any mention of community or community building related to PEG access.

  6. PEG contracts are not unique from other government contracts.


FINAL OBSERVATION:


In February of this year DCCA held public meetings and an “electronic roundup” to create a quantity of input, generated primarily by the PEG corporation's efforts to demonstrate public support, that could only be characterized as fear mongering. A majority of those who testified did not understand the issues at hand, and did not understand why the state was considering going out for an RFP. Neither the PEGs nor the DCCA attempted to inform people about the facts. The atmosphere at each meeting was confusion, and fears about the possibility of “outsiders taking over” and “losing PEG funding” abounded.


The nightmare scenario of ideological bias and hidden agendas envisioned by DCCA if they were required to follow the SPO RFP process has already occurred. What should have been spontaneous, self-initiated comments from individual speakers based upon their knowledge and concerns about this issue instead became a targeted and orchestrated media campaign initiated by the non-neutral PEGS fearing the loss of their sole source status.


With all due respect to Director Recktendwald, who has only four years of exposure to this PEG situation in Hawaii, CTPA has a 15-year history of analyzing the potential, measuring the early successes, and documenting the growing failures of PEG access in Hawaii as it has continued to move away from its original mission. Director Recktenwald's reasons for requesting exemption from the RFP process are not compelling.


The greatest damage done to the public has been caused by sole source contracts to state-created entities with state-appointed boards. The potential of public access was never truly realized here in Hawaii. Perhaps, through a fair and a well crafted RFP that requires the service provider to follow the mission of first-come, nondiscriminatory access, a successful visionary bidder will emerge.