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THE SENATE |
S.C.R. NO. |
94 |
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TWENTY-FIFTH LEGISLATURE, 2009 |
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STATE OF HAWAII |
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SENATE CONCURRENT
RESOLUTION
REQUESTING THE STATE AUDITOR TO REVIEW THE RESPONSIBILITIES AND FUNCTIONS OF THE CABLE TELEVISION DIVISION OF THE DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS AND THE RELATIONSHIP BETWEEN ACTIVITIES OF THE CABLE TELEVISION DIVISION AND PUBLIC, EDUCATION, AND GOVERNMENT ACCESS ORGANIZATIONS.
WHEREAS, in 1984, Congress passed the Cable Communications Policy Act, which permitted franchising authorities of the cable television companies, such as the State of Hawaii, to require their franchisees, the cable companies, to provide funds for public, education, and government (PEG) access; and
WHEREAS, in 1987, the State Legislature amended chapter 440G, Hawaii Revised Statutes:
(1) To grant the Director of Commerce and Consumer Affairs, as a part of the Director's authority to administer Hawaii's cable television system, the authority to designate PEG access organizations, due to the substantial benefit PEG access provides to the residents of the State; and
(2) To require the cable companies to set aside moneys for PEG access; and
WHEREAS, the intent of permitting PEG access federally and mandating it locally was to intervene in the cable television market to support non-commercial, community-based television programming that would not otherwise be supported by the cable television market; and
WHEREAS, consistent with the national practice of independent organizations managing the operations and affairs of PEG access, the State also was instrumental in starting up private, nonprofit corporations to implement PEG access as independent access organizations; and
WHEREAS, in 1995, the Senate of the Eighteenth Legislature of the State of Hawaii, Regular Session of 1995, requested the Legislative Reference Bureau to study PEG access organizations in Hawaii, and the Legislative Reference Bureau, in Report No. 4-1995, issued "Public, Education, and Government Cable Television Access in Hawaii: Unscrambling the Signals", suggesting more appropriate and consistent regulation of PEG access organizations; and
WHEREAS, in 1997, because of encroachment by government institutions in PEG access organization resources, the Department of Commerce and Consumer Affairs commissioned a study entitled "Disputes over PEG Resources: Splitting the Baby is NOT the Solution", which recommended that the Department of Commerce and Consumer Affairs exercise its authority over PEG access organizations to protect them from financial raids by other public institutions and that community control over PEG access organizations be endorsed and strengthened; and
WHEREAS, in 2005, the Attorney General opined that the Department of Commerce and Consumer Affairs' two-decade-long designation of access organizations was subject to the Hawaii Public Procurement Code; and
WHEREAS, in 2007, in Akaku Maui Community Television v. Lawrence Reifurth et al., Civil No. 07-1-0278(1), Circuit Court of the Second Circuit, the Court determined that the Department of Commerce and Consumer Affairs' failure to adopt rules on PEG designation was "standardless discretion" and required the Department to adopt rules pursuant to the Hawaii Administrative Procedure Act in the designation of access organizations; however, since 1987, no rules have been adopted; and
WHEREAS, in 2007, the Hawaii Supreme Court ruled in Olelo: The Corporation for Community Television v. Office of Information Practices, 116 Haw. 337 (Haw. 2007) that access organizations were not public or quasi-public governmental entities subject to the Uniform Information Practices Act; and
WHEREAS, in 2008, the Department of Commerce and Consumer Affairs adopted rules regarding the designation of access organizations by attempting to adopt the Hawaii Public Procurement Code; and
WHEREAS, in 2008, in Akaku Maui Community Television v. Mark Bennett et al., Civil No. 07-1—0282(1), Circuit Court of the Second Circuit, the Court held against the Attorney General and for the public in a chapter 92F, Hawaii Revised Statutes, action seeking to compel disclosure of the 2005 Attorney General opinion regarding the Department of Commerce and Consumer Affairs' power to designate access organizations; and
WHEREAS, the Department of Commerce and Consumer Affairs' designation of access organizations has been an ad hoc, piecemeal set of so-called "decisions and orders" and "agreements" between the Department and the cable television operators and between the Department and the access organizations; and
WHEREAS, the public has voiced concern over the Department of Commerce and Consumer Affairs' erratic and inconsistent designation and regulation of PEG access organizations over the last twenty years; and
WHEREAS, there has been strong and near unanimous opposition to the application of the Hawaii Public Procurement Code to the designation of access organizations and to the Department of Commerce and Consumer Affairs' actions contrary to that opinion; and
WHEREAS, in response to public outcry, the Twenty-fourth Legislature of the State of Hawaii, Regular Session of 2008, adopted House Concurrent Resolution No. 358, H.D. 1, requesting the formation of a task force to examine methods other than the public procurement process to oversee PEG access organizations' expenditures, and the task force has met and submitted a report of its findings to the Legislature; and
WHEREAS, the Cable Communications Policy Act of 1984 permits local franchising authorities to assess fees of up to five per cent of cable operators' revenues to be used for PEG access purposes; however, in 2005, the Department of Commerce and Consumer Affairs narrowed the definition of "gross revenue" and has consistently chosen not to assess the full five per cent permitted; and
WHEREAS, the Cable Communications Policy Act of 1984 permits local franchising authorities to assess fees from cable operators' revenues for the non-residential government and education institutional network, yet the Department of Commerce and Consumer Affairs has severely limited the assessment for the institutional network and restricted the full use of its capacities and potential by state, county, and educational agencies; and
WHEREAS, the sole cable operator in the State of Hawaii has indicated a significant transfer of ownership during the first quarter of 2009; however, the Department of Commerce and Consumer Affairs has not commenced statewide public hearings as required by chapter 440G, Hawaii Revised Statutes; now, therefore,
BE IT RESOLVED by the Senate of the Twenty-fifth Legislature of the State of Hawaii, Regular Session of 2009, the House of Representatives concurring, that the State Auditor is requested to review the responsibilities and functions of the Cable Television Division of the Department of Commerce and Consumer Affairs and the PEG access organizations, and the relationship between activities of the Cable Television Division and the PEG access organizations; and
BE IT FURTHER RESOLVED that the State Auditor is requested to review the past and current process of designating PEG access organizations by the Cable Television Division of the Department of Commerce and Consumer Affairs and the Division's method of franchising cable television operators; and
BE IT FURTHER RESOLVED that the State Auditor is requested to review all appropriate financial audit issues related to the Cable Television Division of the Department of Commerce and Consumer Affairs and the implementation of chapter 440G, Hawaii Revised Statutes; and
BE IT FURTHER RESOLVED that the State Auditor is requested to review the findings of the task force created under House Concurrent Resolution No. 358, H.D. 1, and current law relating to PEG access, and make recommendations regarding possible changes to the law; and
BE IT FURTHER RESOLVED that the State Auditor is requested to complete the requested review and submit it to the Legislature no later than twenty days prior to the convening of the Regular Session of 2010; and
BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the State Auditor, the Director of Commerce and Consumer Affairs, the Administrator of the State Procurement Office, the Mayors of each county, the Administrator of the Cable Television Division of the Department of Commerce and Consumer Affairs, the Attorney General, and the executive directors and chairpersons of the boards of Olelo Community Television; Akaku: Maui Community Television; Hoike: Kauai Community Television; and Na Leo O Hawaii.
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OFFERED BY: |
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DCCA Cable Television Division; PEG Access Organizations; Audit