Robin K. Matsunaga Ombudsman Mark G. S.

Au First Assistant

OFFICE OF THE OMBUDSMAN STATE OF HAWAII th

465 South King Street, 4 Floor Honolulu, Hawaii 96813 Tel: 808-587-0770 Fax: 808-587-0773 TTY: 808-587-0774 complaints@ombudsman.hawaii.goy

In reply, please refer to:

#12-02513 (RD) May 18, 2012

Mr. Jeff Garland 47-490A Ahuimanu Road Kaneohe, HI 96744 Dear Mr. Garland: Re: Administrative Rules for Cable Television Division, Department of Commerce and Consumer Affairs On January 23, 2012, you complained that the Cable Television Division (CATV), Department of Commerce and Consumer Affairs (DCCA), had not adopted new administrative rules in accordance with Chapter 91, Hawaii Revised Statutes (HRS), to implement the provisions of Act 19, Session Laws of Hawaii (SLH) 2011. You stated that Act 19, SLH 2011, effectively repealed the sections of Title 16, DCCA, Chapter 131, Hawaii Administrative Rules (HAR), titled "Hawaii Cable Communications Systems," that relate to the public, educational, and governmental (PEG) access organization designation process, thereby requiring the DCCA to adopt new administrative rules before designating a PEG access organization. Pursuant to your request, we are providing you with the written findings of our investigation.

Background According to the legislative committee reports, the purpose and intent of Act 19, SLH 2011, was to authorize the DCCA Director to designate an access organization to oversee the PEG access channels on cable television without regard to the requirements of Chapter 103D, HRS, titled "Hawaii Public Procurement Code." We note that Act 19, SLH 2011, amended Chapter 440G, HRS, "Cable Television Systems," by adding Section 440G-8.3, HRS, "Designation of access organizations for public, educational, or governmental access channels." Act 19, SLH 2011, took effect on July 1, 2011 and is scheduled to be repealed on June 30, 2014.

Investigation In our investigation, we reviewed the relevant provisions of the HRS and the HAR. We note that all sections of Title 16, DCCA, Chapter 131, HAR, have been effective since December 3, 2008, before the passage of Act 19, SLH 2011.

Hawaii 974-4000 Maui 984-2400 Kauai 274-3141 Molokai, Lanai 1-800-468-4644 Neighbor Island telephone x-70770, fax x-70773, TTY x-70774

Mr. Jeff Garland May 18, 2012 Page 2

Section 440G-8.3(a), HRS, states: The director may designate an access organization to oversee the development, operation, supervision, management, production, and broadcasting of programs of public, educational, or governmental access facilities obtained under section 440G-8; provided that the designation shall be exempt from chapter 103D. (Emphasis added.) Section 16-131-70, HAR, titled "Designation and selection of access organizations," states in relevant part: (b) The director shall comply with the applicable provisions of chapter 103D, HRS, when designating and selecting an access organization to oversee the development, operation, supervision, management, production, or broadcasting of programs on PEG channels obtained under chapter 440G, HRS.

(d) The relative weights of the factors or criteria considered by the director under subsection (c) shall be specified in any applicable request for proposals or invitation for bids issued under chapter 103D, HRS. (Emphasis added.) Section 16-131-73, HAR, titled "Severability," states: If any section, subsection, sentence, clause, phrase, or portion of this chapter is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. We also spoke with CATV staff and the DCCA legal counsel. Our conversations with them are confidential pursuant to Chapter 96, HRS, titled "The Ombudsman." However, the department provided us with the following statement that we can share with you: It was not necessary to promulgate new administrative rules because Act 19 is self-executing and there was enough detail and specificity in the provision (Act 19) and in existing rules to comply with the new statute.

Discussion

Section 440G-8.3(a), HRS, and Sections 16-131-70(b) and (d), HAR, contain conflicting language regarding the applicability of Chapter 103D, HRS, titled "Hawaii Public Procurement Code," during the PEG access organization designation process. Because administrative rules derive their authority from statutes, where there is a conflict between a statute and a rule, the

Mr. Jeff Garland May 18, 2012 Page 3

statute prevails. Thus, we believe that Section 440G-8.3, HRS, is the controlling provision, and we therefore believe that the DCCA may designate a PEG access organization using a process that is exempt from the procurement code until June 30, 2014. We note that Act 19, SLH 2011, does not state that Title 16, Chapter 131, HAR, is to be repealed in whole or in part. Therefore, we believe that Section 440G-8.3, HRS, supersedes and nullifies only those paragraphs of Section 16-131-70, HAR, that conflict with the statute. Since paragraphs (a) and (c) of Section 16-131-70, HAR, do not make reference to either the procurement code or paragraphs (b) or (d), we do not believe they are in conflict with Section 440G-8.3, HRS. Thus, in light of the severability clause, we believe Sections 16-131-70(a) and 1 6-131-70(c), HAR, are still in effect.

Conclusion

Based on the above, we are unable to substantiate your complaint that Act 19, SLH 2011, requires the CATV to adopt new administrative rules before it designates a PEG access organization. We agree with the department that Act 19, SLH 2011, is self-executing and that therefore it is not necessary for the CATV to promulgate new administrative rules to comply with the amendments made by Act 19, SLH 2011, to Chapter 440G, HRS. We note that you have raised concerns that the actions of the CATV in regard to the PEG access organization designation have infringed on your constitutional rights, particularly concerning the right of free speech. Please be informed that we do not have the resources or expertise to make such a determination. If you wish to pursue such an argument, you may wish to consult with your own legal counsel. Since we do not believe that we can be of further assistance to you in this matter, we will be closing this case in our files. We hope you find this letter to be helpful. Sincerely yours,

RENE G. DELA CRUZ Analyst

Approved by ROBIN K. MATSUNAG Ombudsman RGDC:evd