The topic that drew the most debate was the issue of board
selection.  Senate Resolution No. 65, S.D. 1, asked whether the
method of selecting the boards of the public access organizations
should be changed to include "the votes of cable subscribers
living in the cable service franchise area in which the non-
profit access corporation operates."  At present, each access
corporation has a nominating committee that prepares a suggested
slate of members for the majority of director slots.  This slate
is advisory only.  This list is transmitted to the DCCA, which
has independent control on whom to appoint.  The DCCA need not
use the access organization's list, and in fact has at times
exercised its ability to appoint board members not on the list.

     In addition to the majority of board members appointed by
the DCCA, each cable company (except Chronicle on O'ahu) has the
ability to place one, two, or three members each on the board,
depending on the cable franchise agreement.

     Considerable controversy exists on this method, especially
with the level of state involvement with the board appointment
process.  One primary reason access organizations have burgeoned
is that they provide a buffer against the government's liability
for programming and for First Amendment violations.(1)  In the
event of a lawsuit, the deep pockets of the State are sheltered
behind the relatively shallow pockets of the access organization.
Government and cable representation on the board is usually an
issue.(2)  The buffer aspect of an access organization is diluted
when the government becomes involved.  As one article states, "A
[government] representative serving on a Board which directly or
indirectly sets programming poses First Amendment questions.  The
more [government] seats, the greater the question becomes.  There
is also the potential for conflicts of interest when voting on
issues that impact the city or cable system."(3)  Those access
organizations which want to avert these problems yet maintain
communication have either placed the government and cable
companies into advisory positions, or made them non-voting, ex-
officio members of the board.(4)  The State commissioned a study
on cable communications access by Jean Rice, a nationally-known
consultant.(5)  In discussing a possible format for an access
organization, the study suggested a format with four members
appointed by the governor; three members representing the
community producers initially appointed by the Community
Television Producers Association (CTPA) and thereafter to be
elected by the membership of the corporation; two institutional
representatives to be appointed by the board or the governor, and
to reappointed by the institutional task force, if one is
developed; two members to be appointed by the board to ensure
broad representation and special expertise; and ex-officio
members to include representatives from governmental and
educational access management, the DCCA's cable television
division, and the cable company.(6)  The Rice report noted that
"the level of volunteer participation in access has been so
significant over the years that any structure that does not allow
full representation by community [producers] and other community
representatives should not be an option considered by the
State."(7) 

     The State chose a different model for its access
organizations, one involving appointments by government and cable
companies, with no specific representation for the independent
producers.

     As the State was instrumental in forming the access
corporations, appoints a majority of all the board members, and
has oversight responsibilities for the access organizations, some
producers have taken the position that the access organizations
are actually state entities and as such should be subject to the
state sunshine laws and the information practices act.(8) 

     The office of information practices (OIP) has taken the
position that the access organizations are not state entities and
that therefore the information practices act does not apply,
although its opinions have been based on a less than full
understanding of the facts.  In its first opinion,(9) OIP
erroneously stated that the extent of state involvement in
appointing board members was the appointment of the initial board
only.  This is incorrect; the DCCA has ongoing board appointment
responsibilities.  In a subsequent letter the OIP stated that the
state does have ongoing appointment responsibilities, but that it
has no discretionary abilities as it is required merely to
appoint whomever the board submits.  This also is incorrect; the
DCCA has the ability to reject board-selected nominees and
appoint its own choices and has in fact done so.  In its most
recent letter,(10) the OIP again takes the same position, based in
part on the ground that providing community broadcasting is not a
required function of any government agency.  Yet the Hawaii
Public broadcasting Authority is required by statute to produce
and broadcast programs intended to enlighten the people of the
State.(11)  Whether the OIP considered this or not and whether it
would affect its opinion is unknown.(12) 

     Aside from appointing a majority of all board members, the
State is tied to the access organizations in other ways.  As set
forth in chapter 5, on Maui PEG access is split between Akaku,
MCC, the DOE, and the county administration.  As these entities
could not decide on a joint budget, three separate budgets were
submitted to the DCCA, by Akaku for P, MCC for E, and the county
for G.  These budgets totalled more than the available moneys.
To be able to approve distribution of the cable company moneys,
the DCCA was placed, albeit reluctantly, in the position of
having to devise the PEG budget.  The State is therefore deciding
where the PEG moneys for Maui county should go, and setting PEG
priorities for the county.  This is not unusual for the State to
do in a purchase of services contract, perhaps -- but public
access is ostensibly not a state function. 

     Additionally, the two existing contracts(13) between the State
and the access organizations provide an unusual degree of state
involvement.  The Ho'ike contract permits the State to terminate
PEG funding if Ho'ike breaches its obligations under the
contract, and provides that upon contract termination Ho'ike will
transfer to the DCCA or its designee the balance of its fees and
funds and the PEG access facilities and equipment.  This language
is significant as, technically speaking, the State has no
interest in PEG funds, as they are provided by private entities,
the cable companies.  The intent of this language may be that the
DCCA hold the money and equipment in trust until a successor
organization is established, but while such an intent may be
implied, it is not stated.  This wording is another element
giving credence to the allegation that access organizations are
creatures of the State.

     'Olelo's contract, on the other hand, contains no language
allowing the DCCA to terminate the contract, and contains no
reference whatsoever to the disposal of money and equipment upon
termination of the contract.  This is ironic, given the fact that
'Olelo receives so much more money than Ho'ike does.  'Olelo's
bylaws provide that upon dissolution, properties and assets shall
be disposed of as provided in the DCCA agreement, which language
is meaningless as the agreement contains no such disposition.
(The bylaws do provide that the assets will not go to benefit any
private individual and that any assets and properties remaining
after they are distributed pursuant to the DCCA agreement shall
be paid over to a 501(c)(3) nonprofit corporation dedicated to
cultural, charitable, and educational purposes.)

     The DCCA has recognized the oversight in the 'Olelo contract
and, at the time this report was prepared, was drafting a new
agreement for 'Olelo.  However, the original agreement provided
that it may be revised only by written consent of both the
majority of the Board of Directors and the Director of DCCA, and
it is unknown whether the board will agree to the amended
contract.

     The fact that, at least in Ho'ike's case, the assets and
funds are to go to DCCA only highlights the contention that the
access organizations are creatures of the State.  While there may
be an argument that the State intends to hold this money in trust
for a successor access organization, given the fact that the
federal act is silent on the use of this money, and thus no legal
obligation prevents the State from keeping it for itself, the
lack of specific trust language is interesting. 

     Understandably, the State seeks some kind of reassurance
that the resources it is directing to the access organizations
are being used responsibly.  Yet the controls in place seem to
bring the State dangerously close to being liable for the access
organizations' acts, thus negating the major purpose of their
existence, shielding the State from deep-pocket liability. 

     For the purposes of this report, based on the OIP letters,
it will be assumed that the access organizations are independent
organizations and not creatures of the State, although this
assumption may be subject to challenge.


Proponents of Board Selection

     The organizations in this State who contacted the Bureau
generally preferred the existing method and expressed doubts
about the concept of subscriber election. The League of Women
Voters of Honolulu states that:


      . . . [w]hile our organization generally supports the involvement
      of everyone affected ... in this case, we don't think cable
      subscribers as a whole are ready to select the members of access
      corporations' boards.  Too many subscribers are unfamiliar with
      the access corporations' missions and their operations and not
      knowledgeable about the necessary qualifications necessary to
      serve on the boards.  We feel that the response in such an
      election would be very low and not worth the cost....This is not
      to say that at a future date when their services are known to more
      people, inclusion of all cable subscribers in the selection of
      board members would not be feasible or worthwhile or
      desirable."7(14)


     The Bureau contacted the cable companies and asked for their
positions on this topic.  Three responded.  Oceanic stated that
while it is not aware of any complaints regarding the present
composition of the 'Olelo board of directors, nonetheless,
Oceanic would welcome subscriber participation should the
Legislature or the DCCA provide for it.(15)  On the other hand,
Kauai Cablevision stated that it is opposed to election of the
board by subscribers due to the risk of allowing a vocal minority
with a self-serving agenda to dominate the direction of PEG
access to the exclusion of the community at large "despite their
'illusionary' role in 'electing' the board."(16)  Garden Isle
CableVision also objects, pointing out that almost everyone on
the Ho'ike board is a cable subscriber and that therefore,
contrary to what is stated in S.R. No. 65, S.D.1, cable
subscribers do have representation on the board.  Garden Isle
fears that allowing directors to be elected would lead to a
vocal, self-serving minority controlling the access organization,
instead of the proven community leaders from a cross-section of
the public, educational, business, and governmental
communities.(17) 

     In testifying against Senate Concurrent Resolution No. 77,
the companion concurrent resolution to S.R. No. 65, the access
organizations supported continuation of the current board
selection process.  As stated in the Akaku testimony, "[w]e are
concerned that a membership driven PEG access board would risk
"stacking" or placement of Board members by the public for self-
serving interests, which may not necessarily serve the best
interests of the organization or the public."(18)  'Olelo also
shared the fear that the election process could be taken over by
a small vocal group for their own interests:  "A membership
election process will create special interest groups that will
adversely affect the structure of PEG access by focussing
resources and policies ... to the benefit of those limited
groups."(19) 


Criticism of Current Selection Process

     Criticism has been directed at the current board appointment
structure by some producers on the grounds that this method:

     (1)  Does not guarantee representation on the board for
          subscribers, who would represent the community point of
          view;

     (2)  Does not guarantee representation on the board for
          producers, so that their needs are not adequately dealt
          with;

     (3)  Is not democratic in that board members are appointed,
          not elected;

     (4)  Removes choice of board members from the local
          community who know them best;

     (5)  Involves the State too closely with the access
          organizations; and

     (6)  Places cable company-chosen members on the board who
          have the potential for conflicts of interest.

     1.   No Subscriber Representation

     There are two facets to this issue.  The first is whether
subscribers should in some way be represented on the board.  The
second is whether the subscribers should elect the board, instead
of the board being appointed by the State and the cable
companies.  The second facet is discussed below under "no
election of board members."

     Subscribers represent the community.  However, their
interests are relatively uncomplicated.  Their needs revolve
around clear access to the specified number of channels, and an
diligent effort on the part of the access organization to obtain
a diversity of views.  They do not appear to have any special or
technical need to be on the board that the general range of board
members -- the majority of whom, at 'Olelo, Akaku, and Ho'ike,
must be cable subscribers -- cannot adequately represent.  Some
have stated that the community should also receive quality
programming.20  That of course would be desirable, but it does
not seems as though that can be the overriding criterion for
public access.  Some more fundamental goal, such as the right to
be heard and to make one's views known, must take precedence.
When the framework of "quality" (beyond the technical quality
required to produce a viewable, audible tape) is imposed on the
basic requirement of access, diversity starts to diminish as not
all speakers are capable of or interested in the effort to
produce quality shows.  While quality, therefore, is always
desirable, it cannot be used to stifle voices.

     2.   No Producer Representation

     While not addressed in the resolution, some producers have
raised the issue of the lack of producer (user) representation on
the board.  They argue that producers are intimately familiar
with the daily needs and experiences of the producers.  In some
cases, no one on the board has production experience, which can
lead the board into making inappropriate choices of equipment,
training, and facilities.

     The access organizations' response has been that the board
needs to be focussed on the benefit to everyone, including the
public who watches the show and the inexperienced potential
producers, not just experienced producers who may put their own
concerns foremost.

     Producer input is important.  PEG access is intended to
benefit them, and access organizations have the role of
facilitating that access.  Failure to hear producer comments and
complaints respectfully and to act on reasonable requests thwarts
the intent of the law.

     However, it is not clear that the only or best way for the
producers to be heard is to reserve a place for them on the
board.  First-line responsibility for user complaints should be
the staff of the access organizations.  Next line would be the
executive director or general manager.  The board should not be
put into the position of micro-managing the access organization.
The board should assure itself that the staff and manager are
treating producers appropriately, and should seek producer input
on issues on which the board lacks expertise. 

     Each board should have advisory boards which have user
members or otherwise freely accept user input.  The current
practice at Ho'ike, for example, is to allow anyone who applies
to become a voting member of any of Ho'ike's advisory boards.  In
comparison, the Na Leo board has no advisory committees and has
in the past discouraged public input through refusal to
distribute minutes prior to the meeting and placing a three
minute time limit on each user's input.  The wisdom of continued
refusal of user participation is questionable, especially as, at
the time this report was prepared, none of the board members had
completed Na Leo's training and thus had no first-hand experience
with practical and technical issues.

     3.   No Election of Board Members

     At present, all board members are appointed by either the
DCCA or the cable companies.  Criticism has been made by a few
producers that it would be more democratic to have board members
elected, either by the users, the subscribers, or both.  Kathleen
Schuler, the consultant who helped the State set up all of its
access organizations, stated that an elected membership
organization was rejected as a model for the initial formation of
'Olelo, the first access organizations, as due to the size of its
franchise area, 'Olelo was going to be one of the richest public
access organizations in the nation, handling millions of dollars
per year in operating and capital funds.  There was a concern
among those forming 'Olelo that continuity and good management
needed to be a predominant element, especially at the start-up
stage.  With an elected board, a relatively small number of
voting members could force drastic changes on the board, and
represent narrow rather than broad interests.  An additional
concern was that the planning group for the access organizations
defined potential membership as more than just public access
producers, and anticipated problems in developing and sustaining
a membership during the brief start up period and in the costs
associated in supporting a large membership.(21) 

     Schuler adds that it was always understood that at some
future time, the board appointment process would be reviewed, and
in fact the 'Olelo agreement with the DCCA states that "it is
agreed that the appointing agencies will consult with the Board
of Directors over time concerning the appointment process with a
view to making appropriate changes."  According to Schuler, the
'Olelo board has declined to review the issue.  The neighbor
island access organization were patterned after 'Olelo, and it
does not appear that either the DCCA or its consultant considered
a model with an elected board, for reasons similar to 'Olelo's.
While there are no dedicated seats per se the bylaws of all but
Na Leo require that subscribers be a majority of the board.

     One issue involved in elections is deciding on the
electorate.  A variety of options exist.  In some cases, the
producers -- those who have been certified to produce public
access show -- vote.  In others, voting membership is extended to
all those who demonstrate an interest in the the access
organization, including producers, those who pay dues, and even
those who merely request to be on the organizations' program
mailing list.  In at least one, voting rights are extended to all
cable subscribers, and in another, all property tax payers.  Some
organizations segregate voters by class, and have separate
elections by individuals and by groups.  Each of these models has
its own benefits and pitfalls.  Election by cable subscribers
usually involves a large group, so running the election is
costly, and often involves an electorate indifferent to the
election as they subscribe to cable for other reasons.  Election
by producers can lead to stack the board with micro-managers and
self-serving interest.

     The Bureau contacted a number of access organizations
nationwide for information of their board selection process.
That information is presented in a later section.  In brief,
there are many different variations in the process.  Some boards
are elected by their membership, some are self-appointed, some
are appointed by a variety of different sources, and some area
hybrid mix of selection styles.  The elected board does not
appear to be any more successful than any other type of board,
and in fact, in some situations boards have had to eliminate or
reduce the proportion of elected members due to the narrow
interests, infighting, and micromanagement of the elected user
board members. 

     4.   Removal from Local Community

     Another criticism of the current system is that by placing
the ultimate authority for appointing the majority of the board
with the DCCA on O'ahu, the input from the neighbor islands as to
whom they want on their board, based on their local observations,
can be undercut.  All the boards appear to have quite extensive
criteria for selecting members, and endeavor to nominate a
representative cross-section of the community.  Only rarely has
the DCCA has exercised its ability to appoint regardless of the
access organization's nomination list.  However, the potential
for total control by the DCCA over its appointments exists, and
there seems to be no good reason for that.

     5.   State Appointments

     One producer sketched the scenario in which the governor, in
retribution against producers who have aired programs criticizing
his policies, orders the DCCA to appoint individuals to the board
who will restrict the free speech access.  While no one is
suggesting that this opportunity has come to pass, the fact
remains that the State is involved with board selection, a quite
unusual arrangement for a private nonprofit organization.

     6.   Cable Company Appointments

     Another unusual feature about the board selection process is
that the cable companies are given the right to appoint board
members.  While at first glance this arrangement might seem
reasonable, upon closer examination it proves troublesome.  The
cable companies are for-profit businesses whose primary assets
are television channels.  It is to the cable company's economic
benefit to retain as many channels for itself as possible, rather
than providing channels free of charge for PEG access.  It is
also to the company's economic benefit to keep its PEG payments
as low as possible (although the cable companies pass the
operational expenses to the subscribers, they do not pass on the
equipment costs).(22)  In contrast, it is to the access
organization's best interests to ask for more access channels and
more funding.

     While the number of channels to be devoted to access and the
amount of capital payments is theoretically decided only by the
DCCA, in practice the cable companies have asked for waivers from
these obligations.  Some examples:  on the Big Island, the
executive director of Na Leo stated that Jones Spacelink will be
asking for a delay in fulfilling its PEG channel requirements due
to a proposed upgrade.  On Maui, Time Warner has proposed paying
a flat fee per subscriber for PEG access capital, rather than the
fixed amounts in the franchise agreement.  The Akaku executive
director notes that with the current number of subscribers, this
would cause a significant reduction in capital contributions.
And on O'ahu, while the current Oceanic franchise requires it to
make ten percent of all available channels in excess of forty-two
channels available for PEG purposes, in its attorney's letter to
the Bureau, Oceanic recommends that the number of PEG access
channels on Oceanic be limited to five.

     While the DCCA is the ultimate judge of these and other
issues, it would be reasonable for the DCCA to look to the PEG
boards for their input.  The boards must be able to speak freely
as to what they think the best result would be for public access,
which in most cases would be in favor of more channels and more
money, not less.  Having cable company representative on the
board -- even if they are not cable company employees -- poses an
unpleasant dilemma that may rise to the level of conflict of
interest for those board members.  This report is not stating
that cable company-appointed board members have acted in a way
that is contrary to the best interest of the access boards on
which they sit.  However, the potential exists and to ignore it
postpones but does not resolve the issue.  If the DCCA feels that
someone with cable company expertise is important to have on the
board, the substitution of an ex-officio cable company
representative would be more appropriate than the current
arrangement.


Other Models

     The Bureau contacted a number of public access organizations
throughout the country to report on their board structures.(23)
One fact that quickly became evident is that there is no central
source or clearinghouse for this information, and that there is
no consensus as to the best system.

     Access Sacramento [California]

     This board had the most complicated structure of all the
access organizations contacted.  The individual members of the
access organization elect four board members (an individual
membership costs $25 per year), the dues-paying subscribers of
Sacramento Cable elect four members, and the non-profit
organizations (membership costs $100 per year) elect four
members.  These twelve members then appoint three more board
members, for a total of fifteen.(24) 

     Austin Community Television [Texas]

     ACTV is the second-oldest continuously operating non-profit
access organization in the nation, having formed in 1972 and
incorporated in 1973.(25)  As such, its board has undergone
considerable changes over the years.  For the first six years,
the eighteen member board was self-appointed.

     In 1983, several people thought that a self-appointed board
was too detached, distant, and undemocratic, and that policy
decisions were made without adequate information.  Six members
were added to the board, to be elected by those certified to use
the equipment and submit programs.  For the first two to three
years, the results were good; elections drew great interest and
participation and there was a good blend of community
representatives and active users.  However, after this period,
the number of user candidates and voters dropped (voters dropped
from 70 to 25 people), and the more extreme and vocal candidates
campaigned harder and won places on the board.  The agenda of
these directors was primarily self-centered: to add equipment
which would further their free-lance work.  Their extreme views
drove off a number of board members, and the board dropped in
size from 24 to 10, with users in the majority.  They attempted
to micromanage the facility.  Various personality conflicts
arose.

     The board grew so dysfunctional that the City of Austin, the
funder, intervened.  Users were banned form the board on the
basis of their inability to disregard personal interest and act
in the public trust.  The board is now slowly building back to a
point of broad-based community representation.

     Capital Community Television [Salem, Oregon]

     As originally constituted, this seven-member board was
appointed by local government.(26)  In 1994, CCTV moved to self-
appointment of board members.  A nominating committee composed of
advisory board members (representatives of local government,
schools, and organizations) conducts a search for compatible
candidates.

     Davis Community Television [California]

     Davis has a hybrid board in which six board members are
elected by the membership, and three are appointed by the other
board members.(27)  The positions are not specified for any special
interest group.  There are two ex-officio members: the executive
director and a cable company representative.

     Larchmont-Mamaroneck Community Television [New York]

     This nine-member board elects itself.(28)  There are no
designated slots for special interest groups.  The access
organization does have a membership, but they do not vote for the
directors.  The contact person also had personal experience on an
access organization in Manhattan, which has a nineteen person
board, of which 2 members are appointed by the borough president,
and seventeen are elected.  Of the seventeen that are elected,
six "slots" are set aside for producers.

     Montgomery Community Television [Maryland]

     This organization has an unusual set-up in that board
members are appointed by twelve county-wide organizations such as
the League of Women Voters, the Chamber of Commerce, and the
NAACP.(29)  These appointees must then be voted into office.  All
cable subscribers are eligible to vote.  The statute also
provides that a cable company member be appointed ex officio,
although the board later decided to make all the ex officio
members voting members.  This set-up is complicated by the over-
involvement of government in the organization; the board is not
allowed to change its bylaws without local government approval,
and the cable company moneys are turned over to the county, which
then appropriates them to the access organization, and by
Maryland's privacy laws, which forbid the access organization
from receiving the names of the cable subscribers, so that the
access organization must run its election through the graces of
the cable company, who mails out the ballots as a bill stuffer.
The access organization has no way of verify who is entitled to
vote.  With over 200,000 cable subscribers, the cost of printing
the ballots alone is $5,000.

     This arrangement has been termed "ludicrous," and the
parties involved have agreed to change the system.  Two
recommendation made by the access organization are to create a
hybrid board, with some elected and some appointed, and to reduce
the universe of eligible voters from over 200,000 to 3,000 -
4,000 by including only those who have a demonstrated interest in
public access cable television, either by becoming a certified
user or by requesting placement on the mailing list for the
program guide.

     While the board selection process has been criticized, the
general manager is pleased with the composition of the board, as
it has a mix of active users, television professionals, and
interested citizens.  He commented that when the balance of the
board tilts toward any one group, problems can develop.  Too many
users can lead to self-serving decision-making, while the
opposite can lead to a board that is far too removed from the
practicalities of the operation.

     On the issue of a cable company representative, the comment
was that this was a conflict of interest and probably should be
avoided.

     NorthWest Community Television Corporation [Minneapolis, MN]

     The board here is a hybrid board, consisting of fifteen
members, thirteen of which are appointed and two of which are
elected.(30)  The appointed members are appointed by the cable
commission, which is an eighteen-person coalition composed of
senior county and elected officials from the nine cities served
by the access organization.  Nine of the appointees represent
each of the nine cities, and four are "at-large" representatives,
which in practice means that they are four members of the cable
commission.  The two elected access producers positions are
elected by the members of the access corporation.  Membership is
open to any resident and is free of charge.

     The board has been active since 1981, and initially many
city council members sought a position on the board.  At some
later point, they changed their minds and tried to distance
themselves from the board to remove themselves from issues
related to content.  However, in 1985, a new contract was
negotiated which gave the access organization a large budget, and
the council members reversed this position, to allow themselves
to have more control over the money.

     Public Access Television [Iowa City, Iowa]

     This board is a hybrid board with nine members, two of which
are elected and seven of which are appointed.(31)  One of the
elected board members is elected by the membership, and one is
elected by the board.  The board members then appoint the other
board members.  There are no designated slots for particular
special interest groups.

     Tampa Educational Cable Consortium [Florida]

     This access organization handles E programming only.  Its
thirteen member board is all appointed.(32)  Each of the
institutional members -- representing local education and
cultural entities -- appoints one board member, and then the two
funding sources, the city council and the county commission, each
appoint one.

     Thurston Community Television [Olympia, Washington]

     Thurston has a 15-member hybrid board, with four members
appointed by its funding jurisdictions, five elected as member
representatives, and six elected as community representatives.(33)
The general membership nominates the member representatives, and
the board of directors nominates the community representatives
from people who are not members.  It was noted that having
producers on the board can sometimes lead to "tunnel vision" on
issues relating to equipment or facility policies.  However,
producers can also bring a "good sense of the operation" to the
board.

     Tucson Community Cable Corporation [Arizona]

     This board is a hybrid board, in which nine members are
elected and six are appointed.(34)  The elected members are elected
by the membership, which is composed of people living in the city
limits who sign up to be members.  No fee is charged.  One each
of the appointed members is appointed by the University of
Arizona, Pima Community College, the largest school district in
the are served, and the Pima-Tucson Arts Council, and two are
appointed by the board for specialty slots: one to represent
independent producers and one to represent health and human
services.

     This model has been in place since 1990.  Prior to that, the
board was entirely elected.  However, there was a downside to the
all-elected board; some of them represented their own interests
as producers rather than considering the broader view of the
entire community.  There was a significant amount of
micromanagement as well.  The switch was made to include
appointed members to get board members who would have this
broader view.

     Valemont Entertainment [Vancouver, Canada]

     The Valemont Entertainment Society in Vancouver, British
Columbia, has a board of directors elected by property tax
payers.  There are no designated spots for special interest
groups.  The station manager noted that "in the old days" many
people participated in the vote, but that now, they have
difficulty in reaching a quorum and that the turnout is poor.

     Waycross Community Media [Forest Park, Ohio]

     This access center covers a three community area.  Elected
officials from each of the three communities appoint five members
to the board, and the fifteen members appoint one more member.(35)
The board acts as its own nominating committee, making
suggestions for vacancies, which typically are selected by the
appointing authorities.

     White Plains Cable Commission [New York]

     This board is selected by the mayor and confirmed by the
city council.(36)  There are no designated slots for special
interest groups.


Analysis

     These examples reveal a multiplicity of structures; from all
elected, to all appointed, to hybrid groups; from groups whose
memberships elect to groups where the subscribers elect; groups
with members appointed by government, by education, by nonprofit
groups, and/or by the board itself.  All but one of the the
people contacted were relatively happy with their own board's
structure.  There was some reluctance to criticize the structure
of other boards, but those who did voice criticism spoke against
a model dominated by elected producers.  As one observer, a
member of the Alliance for Community Media who has had extensive
experience with two public access organizations, stated:


      As an ardent advocate of democracy, I in theory have opposed self-
      appointed boards.  Experience has caused me to change my views.  A
      self-appointed board with clear nomination guidelines based on the
      organization's mission, especially when a more detached nominating
      committee conducts the search, has many advantages:  the committee
      can recruit candidates based on experience, skills, and service in
      the public trust.  Perhaps as great, the board members will not
      act for personal gain but for community benefit.  Realistically,
      most users cannot resist decisions which will provide personal
      gain.

      I also do not favor elections from groups broader than active
      users, such as the general populace or cable subscribers.  These
      groups have no realistic way to determine the merits of
      candidates.  With the possible exception of a tiny community, the
      level of interest would be minimal, the voter turnout low, and the
      result subject to  the same dysfunctional track as happened in
      Austin with the user group.  The more extreme, vocal, and
      underemployed candidates -- with time on their hands -- have a
      distinct advantage.  Good boards are not made in this way.(37)
      


     Another contact noted that access organizations are
community-wide resources, and that having more than a limited
number of current producers on the board constituted a clear and
obvious conflict of interest and poor policy for a non-profit
board.


Summary

     There is no definitive text on access organization by board
type.  The sampling of organizations demonstrates that different
types of boards can successfully exist, albeit not in every
situation.  However, to answer the legislature's specific
question about whether the board selection process should be
changed to include the votes of the cable subscribers, not only
does it appear that cable subscribers are not a particularly
appropriate group to serve as an electorate, but it also does not
appear that that option would be helpful in resolving any of the
issues discovered during the course of this study.

     While the rationale for having subscriber representation and
ability to elect the board is that as the subscribers are the
people paying to support PEG that they should have a voice in
selecting the board, the problem with this arrangement is that
often subscribers are subscribing the cable television for
reasons quite separate from PEG access.  Many subscribers choose
cable simply to get better television reception, or to be able to
watch well-established national specialty programming such as
CNN, HBO, QVC, Nickelodeon, and others.  There may be a vast
amount of indifference by these subscribers, even those who do
watch PEG programming, as to who puts the PEG programming on the
air.  This could lead to a tiny number of subscribers who
actually care enough to vote and whose votes swing the election.

     The goal of selecting a board is not merely to allow for the
democratic process.  It should be to select a well-balanced board
capable, in 'Olelo's case, of handling large sums of money well,
and in the case of the other counties, of managing small amounts
wisely.  A relatively small group of voters could stack the board
in a manner that would not fulfill this most basic requirement.
The fact that three of the boards described above -- Tucson,
Austin, and Maryland - moved or are moving from elected positions
to fewer or none at all indicates that this can be a real
problem.

     For those who claim that appointed boards are not
"democratic," it must be remembered that the access organizations
are private, not public.  In general, private non-profit
organizations have boards that are either appointed by the other
board members, or by a supervisory body, or elected from their
membership.  They choose their own form of board selection, and
there is no requirement for any public input, much an less
election.  'Olelo, Ho'ike, Akaku, and Na Leo have the right to
choose to change their board structures if they find it wise.
But for the State to intervene in the board selection process and
require a private board to (1) create a membership, and (2)
have that membership elect the board, would be a completely novel
invention in this State.

     Nevertheless, due to concerns the State may have with its
own role in the board selection process, the State may choose at
this time to evaluate whether other methods of board structure
are more appropriate.  One issue that has arisen is whether the
board should be elected by a membership of persons specifically
interest in public access.  In this situation, typically the
access organization has a membership composed of people who have
been certified, have paid to become a member, or who otherwise
have demonstrated an active interest in public access.  One
observer(38) summed up the main benefits and drawbacks between
elected and non-elected boards as follows:  membership groups are
regarded as the most democratic form, they keep the organization
close to its constituency, they create the greatest "arms'
length" between government and PEG access, and can be a source of
funds and political support.  However, membership groups are more
cumbersome and more costly, are more difficult to ensure that a
balance of members exist and include necessary expertise.  There
is also a concern that quorum requirements are low enough so that
action can be taken but high enough so that a small group cannot
take over.

     Non-membership groups are generally more efficient and less
costly to operate.  Choice of board members can be fine-tuned to
bring on needed expertise or to represent specific groups.  There
is usually more continuity with appointed boards.  The drawbacks
are that the groups run the risk of becoming self-serving and
losing contact with their constituencies, and other methods of
community involvement must be developed.

     Is a membership-driven organization right for Hawai'i?
Given the examples cited above, it seems that a board that is
fully elected is subject to problems with self-interest.  A board
with one or two elected members, however, may be a stronger board
with a better understanding of the producer's concerns.  The
tensions experienced at Na Leo, for example, might have been
alleviated had the producers had unobstructed access and input to
the board.  In the alternative, the creation of advisory boards
that include producer members would provide some balance to the
board.  The perception of a small number of producers in three of
the four counties is that their input is not valued, not
accepted, and not wanted.  For most private nonprofit groups,
this issue, whether legitimate or not, would not be a concern of
government.  The State has basic concerns that a nonprofit's
operations be legitimate and that its directors not engage in
self-dealing or other egregious behavior, but governmental
concern does not extend to all the minutia of a nonprofit's
internal affairs.  However, the State's requirement that the
cable companies fund PEG access gives the State additional cause
to assure itself that these payments are being used properly.
The State must balance this concern with an evaluation of its
involvement in the board selection process, and with public
access in general.  The State should be involved neither in
micro-managing the access organizations nor in exerting such a
degree of high-level control over them that the State risks
having them be considered state entities.

     One option that would separate the State from the access
organizations while avoiding the potential problems of an elected
board is to release the State's appointment powers and permit the
board to be self-appointing.  The boards could either carry out
their own nominations process, as they do now, or an independent
advisory board could be created to submit nominations to the
board.

     The State could retain oversight authority by requiring
detailed reporting requirements and goals for each of the access
organizations.  Currently only Ho'ike has detailed reporting
requirements, including:

     For public access programming:

     .    Total hours of programming

     .    Hours or original v. repeat programming

     .    Total hours of local v. imported programs

     .    Number of series v. single programs

     .    Programming by category

     .    Total hours of bulletin board programming

     .    Hours of programming submitted but not aired, and the
          reasons for that

     For educational and governmental programming

     .    Total hours of programming by each participant

     .    Total hours of locally produced v. imported programming

     .    Hours of programming submitted but not aired, and the
          reasons

     Channel outages:  hours and reasons

     Facility use:

     .    Number of people using and checking out equipment, and
          number of wait list

     .    Number of hours of studio use

     .    Number of hours of editing use

     .    Number of new v. repeat users

     Re training:

     .    Number of people registered for training

     .    Number of people certified to use the access equipment

     .    Number of people on waitlists

A list of requirements of this type, plus realistic goals where
applicable (e.g., set number of hours of original public access
programming and people trained), would provide guidance and
accountability to the system.  The Bureau does not have the
expertise to develop a set of goals and numbers for these
requirements.  The State would have to contract with an expert in
the field to derive this system, which would establish standards.
Monetary or other penalties could be set for unexcused failure to
meet the goals.  There would have to be some flexibility in the
system to account for emergencies.(39) 

     In addition to re-evaluating the State's role in the board
selection process, it may also be time to re-evaluate the role of
the cable companies.  Hawai'i's cable company appointments were
almost unanimously disapproved of by the various access
organizations contacted for this study.  The potential for a
conflict of interest was apparent to these respondents.  The
concept of an ex-officio, non-voting cable company representative
was supported by some who saw the value of having that type of
expertise available to the board.