Wednesday, April 14, 2010

Part of information packet for April 15, 2010, meeting of the Telecommunication Board

RESUBMITTED January 8, 2009

                                                             OFFICE OF CABLE ADMINISTRATION
                       CITIZEN COMPLAINT FORM

NAME: Jim Bemis                                               DATE:  November 17 2008
 Okay to use your name in public discussion? Yes X            No___
 ADDRESS  1325 Pine Creek     Fayetteville AR    72704
 TELEPHONE:  Work 790 1518                    Home  444 9825
RECEIVED BY _____________                  DEPARTMENT ________________
 REFERRED TO _____________                DEPARTMENT ________________

I have submitted the items below to the Telecommunications Board  “FORUM” on the  City of Fayetteville website, as well as in previous individual email messages to all Board members, but I have received no response from the Board or from the offices of  the Cable Administration. I find no indication that they will be considered at the November Board meeting.  Thus, I am asking that the Board consider the below listed  items to the agenda, as agreed upon by  the Board at its October meeting.  I believe that I have followed all  provisions of the Fayetteville Government Channel policy and the Board’s administrative rules in making the requests and complaints outlined below. The items are linked electronically  to the Board’s FORUM in this message.   Given the lack of Board response, please also consider this form as a complaint that the Board’s policy and procedures for citizen complaints and the complaint appeal process have not been
 responsive to my complaint and  attempts to follow the the Board’s Appeal Process.  I am delivering a hard copy of this form to the Cable Administration  offices today, November 17, 2008.

 November Telecom Board Packet
November Telecom Board Packet 0 Susan Thomas 11/13/2008 10:35 AM
l0">by Susan Thomas Bemis request for Board consideration of complaint/requests submitted at the October Board meeting
Items for consideration at Board's November meeting 0 Jim Bemis 11/06/2008 02:58 PM
by Jim Bemis Telecom Board Chairman Bell Resignation
Resignation note sent to Council by Chairman Bell on 10-30-08 0 Jim Bemis 10/31/2008 10:29 PM
by Jim Bemis Bemis reply to Telecom Board Chair Bell's notification of Board action on May 21, 2008 complaint
Complaint and Appeal process for unresolved May 21 requests/complaint to Telecommunications Board, with Board response. 0 Jim Bemis 10/25/2008 10:05 AM
by Jim Bemis Update on Government Channel Policy and Procedures
Bell questions/summary note on proposed policy to Board and Council May 26 2008 0 Jim Bemis 10/22/2008 10:03 PM
by Jim Bemis Second of Bemis reminder notes and request that to be included in the October 16 Board meeting agenda
Incomplete Board actions on Bemis complaints and appeal process 0 Jim Bemis 10/13/2008 09:46 PM
by Jim Bemis Telecom Board Agenda Packet October 2008 0 Susan Thomas 10/09/2008 04:21 PM
by Susan Thomas Government Channel policy City Attorney 09.30.08 0 Marvin Hilton 10/02/2008 11:00 AM
by Marvin Hilton Response to Board Chair regarding Bemis requests/complaints
archiving of earlier response to Board Chair, sent to Board by email 0 Jim Bemis 10/01/2008 05:49 AM
by Jim Bemis REminder note attachments
attachment function of "Forum" difficult to manage 0 Jim Bemis 09/29/2008 10:23 PM
by Jim Bemis Bemis reminder to Board regarding complaints and appeal process
Reminder also sent to google group and individual addresses 0 Jim Bemis 09/29/2008 09:43 PM
by Jim Bemis Telecom Board Agenda Packet September 2008
Telecom Board Agenda Packet September 2008


 RESOLVED BY:    ______________________                                          DATE: ______________

By Marvin Hilton, March 23, 2010
There is a slight wording change between the 2009 and 2010 CAT Contract versions, possibly a typo or an effort to be more efficient with words.   In any case does this word change make a difference in legal interpretation?
I have attached a link to the Arkansas FOIA Handbook and included two questions from that hand book about the FOIA.  I am wondering if these two questions from the handbook are pertinent to whether nor not CAT is subject to the FOIA laws?
In any case I believe that it was the intent of the original authors of the CAT Contract that CAT be subject to the FOIA laws.  At the first opportunity I believe that the Public Access Contract be written so it clearly states that all meetings, business and information of the Public Access Operation is subject to the Arkansas Freedom of Information Act.       
From CAT 2009 Contract:
All business and information maintained by CAT or the CAT Board of Directors is subject to the terms of the Arkansas Freedom of Information Act (FOIA).

From CAT 2010 Contract:
All business information maintained by CAT or the CAT Board of Directors is subject to the terms of the Arkansas Freedom of Information Act (FOIA).

Arkansas FOIA  Handbook:

Q. Who is Subject to the FOIA?
A. All governmental entities are subject to the FOIA.
And a private entity is subject to the FOIA if it receives
public funds and is intertwined with the activities of government.
Q. Is a private entity subject to the FOIA where it
receives public funds and carries on public business or
is otherwise intertwined with the activities of a public
A. Yes. See Waterworks v. Kristen Invest. Prop., 72 Ark
App. 37, 32 S.W.3d 60 (2000); North Central Association
of Colleges & Schools v. Troutt Bros., Inc., 261 Ark. 378,
548 S.W.2d 825 (1977) and Rehab Hosp. Services Corp. v.
Delta Hills Health Systems Agency, 285 Ark. 397, 687
S.W.2d 840 (1985). The inquiry should focus on whether
there is a symbiotic relationship between the private entity
and the state or local government, such as when the private
entity receives public funds for the general support of
activities that are closely aligned with those of government.
J. Watkins & R. Peltz, The Arkansas Freedom of
Information Act (4th ed. 2004). When the activities of a
private organization and the government become intertwined,
the private organization may well render itself part
of the government for FOIA purposes. See Opinion Nos.
2005-214 (property owners’ association exercising authority
over sewage disposal); 2004-223 (private non-profit
corporation operating a hospital); 2000-039 (private, nonprofit
corporation licensed by the State as a community
service provider); 95-273 (private nonprofit agency on
aging providing services under a federal grant program);
89-082 (nonprofit organization assisting local law enforcement
in emergency situations).
Q. Does the FOIA apply to a private entity that is paid
from public funds for services rendered to a government
A. Yes, in some instances. The question seems to be
whether the private entity is the “functional equivalent” of
government employees. City of Fayetteville v. Edmark,
304 Ark. 179, 801 S.W.2d 275 (1990), Opinion Nos. 2005-
164, 2001-172, 96-185..
34 Freedom of Information Handbook, 14th

(Marvin Hilton April 12, 2010)

GOALS:  This brainstorming will be to consider ways that the Telecasting Center can be administratively restructured to increase effectiveness and efficiency.  It is not meant to consider any possibility of reducing or eliminating any services now being delivered. Ideally it will be devoid of defending or promoting any particular existing structure and will objectively consider all possibilities.  It is meant to be done in conjunction with and take best advantage of the following items in process now:

·         The Public Access Television RFP (to be completed well before 2011)

·         Re-issuing (possibly revising) the Public Access Television contract

·         Rewriting the Government Channel Policy

This brainstorming will be to consider the existing program categories, listed below, by source and funding method, for the most effective and efficient method of telecasting, funding, program requesting policy and most suitable channel for playback.  (Note:  Both the government channel and the public access channel are mostly funded by the government, whether directly or through government issued contract.):   

1.      Requests by citizens and officials to televise FOIA meetings within Fayetteville to be produced and funded by the government.

2.      Government informational programs produced by and at the discretion of the local government.

3.      Programs produced by residents of the designated service area using government owned equipment.

4.      Programs produced by residents of the designated service area using their own equipment.

5.      Individual programs produced by contract with a government funded entity, and to be paid for by customers of the designated service area.

6.      Programs designed to promote public access television produced and funded by the government.

7.      Programs telecasted, such as “short takes” produced and funded by the government that allows citizens to express themselves on a first come, first served basis.

8.      Issue forums, including candidate forums, produced and funded by the government.

Other possible questions to be considered:

9.      What is the service area of Public Access Television?

10.  What entity shall operate Public Access Television?

11.  What entity shall operate the Government Channel?

12.  Would it be more effective and efficient for one entity to operate the Telecasting Center?

13.  What is the funding source and amount for the Telecasting Center?

14.  Other?  

JAN '10

















5:30 p.m.
Thursday, April 15, 2010
City Administration Building, Room 219
113 West Mountain Street
 Call to Order and Roll Call 
(1) Approval of March 2010 meeting minutes
(2) Adoption of April 2010 Agenda
 Old Business
(3)University of Arkansas Television Report 
     UATV quarterly report
     UATV contract issues: Chairman expects to speak with Professor Foley on Thursday afternoon after Mr. Foley  meets with Cox officials that day with content for this item and item below.

(4) Cox Communication Report.
(5)AT&T progress discussion
(6) Government channel 16 Television Report from Fayetteville Television Center manager
(7) CAT 18 Television Report from Cable Access Television interim administrator and representative of CAT Board
(8) Telecom Board policy subcommittee discussion
 (9) Election of vice chairman 
(10) Discussion of funding of Television Center
(11) Discussion of Brainstorming Session: Restructuring the administrative structure of the Television Center
(12) Compliments
(13) Complaints
(14) Coverage-area residents' comments*
(15) Agenda for May 20, 2010, meeting
(16) Announcements from Board Members 
*   Residents of the coverage area of the PEG channels wishing to address matters on the agenda may make comments when the Board addresses the item, subject to time limitations the Board may establish.
 Residents wishing to address matters not on the agenda may make comments during resident comments, subject to such time limitations as the board may establish. The Board, however, shall not act on such matters. Latecomers may comment at this time on agenda items discussed before their arrival.

Aubrey James Shepherd
P.O. Box 3159
Fayetteville, Arkansas 72702

Telecommunications Board Meeting Minutes
March 18, 2010
Chair Aubrey Shepherd called the meeting to order. Arrangements are made with Jim Bemis to answer Shepherd’s cell phone as Shepherd is expecting a call from someone with important information about an item on the agenda. Present were Mike Russell, Marvin Hilton, Aubrey Shepherd, and Justin Tennant.
Also present were Fritz Gisler, The Fayetteville Government Channel manager; Lindsley Smith, City Communications Director; Mark Warren, Interim Administrator at Community Access Television;; and Jim Bemis.
Hilton moved that the minutes from the February meeting be corrected to add the response by David Young to Hilton’s question about if the CAT Board is properly constituted. Gisler noted the request. Russell moved to approve the minutes and Hilton seconds. All approved the agenda.

Hilton asked for the addition of two items. The first item was that the Telecom Board makes a recommendation that the Television Center’s funding be increased by specifying a percent of the franchise fee. Shepherd asked where to put it. Russell said as New Business. The Second item asked to be added, as new business, was for a brainstorming session on possibilities of restructuring the administrative structure of the Television Center. Hilton suggested eight participants with representatives from the City, the CAT, the Telecom Board, producers and possibly the public. Russell moved and Tenant seconded. All approved the agenda as amended.
Shepherd said he was going to move it to the bottom of the agenda as the discussion was to hinge on a meeting that Mr. Foley was to have with COX that day and a hoped for phone call with the information. There was a motion to move it to when the phone call comes by Russell and a second by Hilton. All approved. Shepherd added that Foley said a quarterly report was not possible as it is Spring Break but possibly next month
Shepherd said Foley is clearly negotiating with COX for UATV to have its own channel and on the higher tier to be digital.

Shepherd said he had communicated with AT&T and that an AT&T representative would possibly attend an internet meeting and that the Board should invite COX also. Hilton asked Tennant about the reception of AT&T Uverse. Tennant responded that it is not on the East side of town but on Dickson Street where it is excellent. He reported that it is still spotty and AT&T doesn’t want to roll it out yet until all the fiber run is complete. Tennant said he will report next month.
Mr. Gisler, Government Channel manager, said not much change at the Government Channel. He spoke of production equipment not being returned to Community Access and that a Police/theft report was filed. Shepherd asked about insurance. The City insurance has a $10,000 deductible and the worth of the items was set at $4,500. Gisler said CAT staff did all they were supposed to do but procedures will be refined to insure proper documentation and contact information. Gisler added that he will be speaking at the CAT Board retreat. Russell stated he thought it great Gisler was meeting with the CAT Board. Hilton asked about the status of the RFP for Public Access. Gisler said he is talking with the CAT Board about developing it. Hilton asked when the RFP committee is going to be formed. Gisler answered that has not been determined yet. Hilton said he assumed a Telecom Board member would be appointed and then the RFP would come to the Telecom Board for approval and recommendation. Gisler said that is covered under Ordinance 4504 and the role of the Telecom Board. Shepherd asked about the station glitches that both stations were having. Gisler responded that it was transmission equipment which COX had installed and has since corrected Friday, March 12.
Mark Warren, Interim CAT Administrator, mentioned the letter from the person thought to have stolen camera and equipment. Gisler said probably not appropriate to read from a letter entered as part of investigative file. Warren invited Board Members to the 30th Anniversary cake at the station. He reported on FAT CAT Awards and ceremony. He called for judges. Warren reported that he and Gisler are working on getting new cameras. Warren reported that CAT has a new intern, a new volunteer from Life Styles, and a new outreach volunteer. Russell asked about what Warren hopes to accomplish at the retreat. Gisler answered that that is the CAT Board and that he hopes, from the City perspective, to clarify some things, some misconceptions of the relationship with the City and the contract. He talked of the CAT Board policy committee. Shepherd asked about the right of the public to attend and Gisler answered Shepherd would have to talk to Ms. Leaf, the CAT Board president about that. Shepherd makes a statement about the retreat being recorded for broadcast. Warren said no cameras had been checked out for that and none available. Russell said not an issue. Warren added it’s not a meeting. Hilton spoke of the CAT bylaws and acting under the FOIA laws and that it is hard not to have cameras if you are having a meeting of the board. Warren said he would let Leaf know. Lindsley Smith, City Communications Director, commented on the FOIA laws and that they don’t have to be filmed but open to the public. She said she would hate to allege at this meeting by a Government Board that we have a Government contractor who is acting illegally in their intentions. She asked to be able to have legal counsel. Warren said the retreat is not a secret meeting and Shepherd reiterated the date, time and location. Russell agreed that legal advisement would be good and Shepherd asked Smith to check. Smith went to see if the City Attorney was in. Topic held to her return.
Russell said he is not available until after Easter. Hilton mentioned the possibility of the rest meeting and then giving information to Russell for additional consideration. Russell agreed. Hilton, Gisler and Shepherd discussed setting the date via email for the week of the 5th.
The City Communications Director and Interim CAT Administrator returned and reported that the City Attorneys were nor there. There was continued discussion about taping the CAT Board retreat. Russell asked if they could ask for a recap or a taping of the meeting. Warren said they always take minutes and post on the website. Hilton said the real question is can anyone go in and tape the retreat. Warren said again it is up to Leaf to give an answer. There was discussion of meeting locations and FOIA by Shepherd, Warren, Gisler and Smith. Shepherd reiterated that he was only expressing his disappointment in any of the Access meetings that are not open. Hilton asked if that the CAT contract says they are willing to operate according to the FOIA laws does that have any bearing on this discussion. Shepherd answered that they have no legal opinion. Russell moved that the chair make the Telecom Board’s wishes that the retreat be open to the public known to the CAT Board president. Tennant seconded. All approved. Smith brought up that this Board does a lot of business on line and should be looked after. Shepherd responded that that is making information known and not voting or making decisions.
Tennant talked about some of the goals and in particular making City meetings more available to the public. He reported that Alderman Petty was a participant at the meeting. Tennant asked Smith if it was true the City Council approved the application for the broadband stimulus. Smith said yes. Tennant said he has been contacted by a couple of businesses who provide the fiber for this but he has not responded because of legal issues that he plans to contact the City Assistant Attorney about. He said he’d like another meeting in late April. He said he would like to have one a quarter minimum.
Shepherd expressed that he takes the blame for it not being done yet but will try.
Russell motioned to wait until next month. Tennant seconded. All approved.
Gisler said he continues to get compliments on a daily basis for the Government Channel and also he has gotten compliments about the City’s providing Public Access Television. Smith added that the partnerships of the Government Channel with other entities have been good. Gisler talked about the Census PSA produced by the Government Channel.
For the record Jim Bemis complimented the stations.
Bemis called attention to his written complaints and recommended a retreat with the City to discuss them. Russell added that there should be a camera present. Bemis discussed his complaint of lack of coverage of FOIA meetings by the Government Channel and how it is decided. He said he would tape the CAT Retreat and especially because Gisler will be there representing the City and its contract with the CAT. Bemis asked that the Board reconsider/consider the denial of the Government Channel coverage of CAT Board meetings. He mentioned that valuable information is passed around but not recorded and he recommended using forums. Shepherd asked for a concise statement of the specific complaint. Bemis reiterated that he would like the Telecom Board to return the coverage of the CAT Board to the Government Channel. Hilton said they could answer Bemis’s complaint quickly if they could settle if the CAT operates under the FOIA laws as then the Government Channel policy says a citizen can request the Government Channel to televise those. Shepherd said the Assistant City Attorney confirmed that the CAT bylaws do say they operate under the FOIA laws. Gisler brought up the 2010 agreement of the City of Fayetteville and Community Access Television, section one paragraph E. He pointed out the words all business information maintained by CAT or the CAT Board of Directors is subject to the terms of the Arkansas Freedom of Information Act. Hilton stated that that settles the argument. Bemis said he’s not arguing and that he will cover the CAT retreat which he believes the Government Channel should but he has lost that argument with the Educational Channel. Hilton said what Gisler read clarifies that CAT operates under the FOIA laws and the Government Channel policy says that when a citizen requests such a meeting to be televised the Government Channel has to do it, Hilton suggested Bemis’s complaint be voted on and carried out. Russell asked for Gisler’s point of view. Gisler said the CAT contract does not say the CAT operates under the FOIA but that all business information maintained by CAT is subject to the terms of the FOIA and that the contract is the legal document in place here. The second point Gisler spoke to was the 2008 policies of priorities of Government Channel programming, request by citizens and resources of the Government Channel. Bemis responded by asking why you would not want to cover this and let the public know. Shepherd called the question. Russell asked if they could without more legal clarification. Hilton added he believes it is clearly FOIA but the issue is subject to the availability of resources. Smith talked about openness and transparency and the FOIA. Hilton moved that the Telecom Board request in conjunction with Mr. Bemis that the Government Channel televise the CAT Board meetings according to their abilities with the resources they have. Russell asked for clarification that Gisler would do that within the constraints he has as administrator. Gisler responded that he operates under that policy already but it is difficult on a day to day basis. He said we do not want to not cover that meeting but that is a question of priorities and resource management. Bemis agreed he knows the Government Channel is bound by the policy and it needs to be clarified and reconsidered. Warren said CAT Board meetings are shown on CAT and what does it matter which channel.  Shepherd said some believe it a government function and therefore the responsibility of the Government Channel to cover it. Shepherd brought up TV schedules and viewing audiences and added that the Government Channel is City news and the CAT sometimes is a parody of the meeting. Warren reiterates that the CAT Board meetings are aired on CAT. Shepherd said it is just separation of roles of the channels. Russell returned the subject to Bemis’s first complaint and Hilton restated the motion: In answer to Mr. Bemis’s complaint I move that the Telecom Board recommend that the Government Channel televise CAT meetings as requested per policy and if resources are not available the requestor shall be notified as such. Russell seconds. All approved. Bemis asked for a completed complaint form. Shepherd told Bemis he appreciates Bemis’s service to this Board and to the citizens of Fayetteville. Tennant left.
The second complaint was moved forward to the next meeting.
Bemis said he would come next month to discuss defining coverage area because he moved from Fayetteville, serves on the CAT policy Committee as he lives in the four county area, and he does get on Uverse this program. He suggested the Board ask Cox if they are going to give four counties, are they giving the Education channel four counties and what is the coverage area. 
Hilton restated the two agenda items added and stated the need for numbers relating to the percentage of Cox and AT&T fees spent on the two City channels. Gisler responded that is available information from Paul Becker, City Finance Director. Hilton requested yearly franchise fees and the total amount of funding for the entire television center. Gisler responded that AT&T Uverse installation had not been completed as of the last financial report but it was reported as contributing $40,000 in five months of 2009 and Cox as contributing $780,000 as revenue received by the City in franchise fees. Hilton suggested the last three years of franchise fees be considered. Smith suggested Shepherd call Becker. Shepherd said he would be interested in seeing if the amount of fees collected has gone up but the amount paid to the Television Center has stayed the same. Shepherd and Gisler discussed the capital funds and operation funds distinctions and the relation to the City General funds. Hilton questioned the source of the capital funds. Gisler responded that part of the sales tax goes to the General funds and part to Capital expenditures and the percentage is determined by the City Council. Russell recommended tabling the discussion of the details until next month and adding Hilton’s two agenda items to the top of the list.
Mr. Hilton moves. Mr. Russell seconds. All approve.

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