Dear Mr. Recktenwald,

    Recently, your Department, the Department of Commerce and Consumer Affairs (the 'DCCA') released a document dated, January 23, 2006 (the 'Document') in which it purports to take action in behalf of the DCCA.

    As Chairman of the Board of Maui County Community Television, Inc., d/b/a Akaku: Maui Community Television (Akaku), I am charged with looking after the welfare of our non-profit corporation and the empowerment of the Maui Nui community's voice through access to media.

    After careful review of the administrative rules adopted by the DCCA and the enabling statute of Haw. Rev. Stat. §  440G, I have been unable to locate a specific rule which grants the DCCA authority to make this decision.

    Haw. Rev. Stat. § 91-1(4) defines a rule as 'each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency.'

    As you may be aware,  the Hawai'i Supreme Court in Shoreline Transportation Inc., v. Roberts Tours and Transportation, 70 Haw. 585, 591 (1989), stated: 'Rulemaking is the process by which an agency lays down new prescriptions to govern the future conduct of those subject to its authority; adjudication is the process by which the agency applies either law or policy, or both, to the facts of a particular case.' (citations omitted)

    If this is indeed has been rule making within the understanding of Haw. Rev. Stat.  § 91, please indicate how the DCCA has complied with Haw. Rev. Stat. § 91-3(a) including but not limited to the date in which a copy of the proposed rule was filed with the Office of the Lieutenant Governor.

    If the DCCA does not consider this document to have been produced by the rule making process, then it must be decision and order of an adjudicatory nature. If it is a contested case matter and not a rule-making matter, Akaku obviously has a vested interest at stake to which the requirements of procedural due process attach. Akaku has not been notified, pursuant to Haw. Rev. Stat. § 91-9.5 of any contested case hearing. Moreover, if this indeed a contested case matter that, for one reason or another, has omitted Akaku's necessary presence, Akaku hereby petitions to intervene in the matter.

    Finally, if this is neither a contested case or an act of rule making, please state the legal basis and authority for the DCCA to engage in this conduct. If this is neither rule making nor a contested case, Akaku hereby petitions and seeks a declaratory ruling of the Director pursuant to §16-301-04 that this action has been made (1) in excess of the statutory authority or jurisdiction of the DCCA and (2) upon unlawful procedure.

    Sincerely yours,


    JAY APRIL
    Chairman
    Akaku: Maui Community Television

cc: Nate Smith