I
apologize for not getting back a timely response on your question.
It was my fault that I did not forward the response to you.
However, here is the answer to your question.
I
hope this answers your question on this issue.
Please let me know if you have any further questions and I promise to
get to the correct person on a timely manner.
Kiman
Kiman
K. L. Wong
General Manager-Internet Services
Oceanic Cable
Phone: (808) 625-8335
Fax: (808)
625-5888
The following Word
document was attached. Note it appears to be unfinished as there is no
closing/signature; also note that it is dated November 1:
November 1, 2001
Marilyn
Dear Ms. Wells:
Thank you for your email of October 20, 2001.
I regret that you did not get a timely response from Linda Thompson.
Hawaiian Cablevision provides your residence with a link
to your ISP, Road Runner. The
excise tax is a tax on the service provided by Hawaiian Cablevision, not
actual Internet access. Our cable
modem service has been treated as a cable service for franchise purposes,
including remitting franchise fees to the local franchising authority (the
Department of Commerce and Consumer Affairs – Cable TV Division) on revenues
derived from this service. The
Ninth Circuit Court of Appeals in the case of AT&T v. City of Portland
has ruled that Excite@Home, a cable modem
service proposed by AT&T for carriage over its cable system in Portland is
not a cable service.
The Ninth Circuit’s ruling has cast some uncertainty on
how a cable modem service should be classified.
In fact, the proposed classification of this service is presently under
consideration by the Federal Communications Commission and the United States
Supreme Court.
In light of the present uncertainty and pending
clarification as to the classification of this service, Time Warner believes
it is prudent to continue to collect franchise fees on cable modem service but
such amounts will be held in a separate interest bearing account pending
clarification as to their proper disposition.
Ultimate disposition should result in one of the following:
(i) refund to our customers; or (ii) remittance to the Department of
Commerce and Consumer Affairs. Time
Warner will not benefit from either of these two scenarios.
On
November 16, Marilyn sent this reply to Kiman Wong:
----- Original Message -----
From: Marilyn
Sent: Friday, November 16, 2001 3:35 PM
Subject: Re: Internet access tax and franchise fees (2nd Attempt)
Dear Kiman,
Could you please have the original response (with an
address and authentic signature) sent to me via USPS? The response
you sent me via email was unsigned and contained no originating
address. It appears to be from someone within Hawaiian Cablevision and
thus I conclude that the statements therein apply ONLY to Hawaiian
Cablevision users and not to Sun or other affiliate or Oceanic
users. Please explain the reason for this lack of uniformity within
Oceanic, its affiliates and the subscribers.
Could you also please send me the docket numbers for
the cases before the FCC and the U.S. Supreme Court regarding the
classification of cable modem?
According to my understanding of the response you sent
me, the decision to continue to collect franchise fees/taxes, but
place them in an interest bearing account, is to be effective beginning
November 1, 2001 and applies ONLY to Hawaiian Cablevision users. Is
this correct? If not, could you please tell me when Time Warner began
placing the franchise fees/taxes that it collects from users into an interest
bearing account? If this policy is not new and doesn't apply just to
Hawaiian Cablevision users, then is Time Warner applying this policy
uniformly to all its RR subscribers through out the jurisdiction of the Ninth
Circuit Court? Am I to understand correctly that until November 1,
2001, Hawaiian Cablevision not only collected but remitted to the state the
franchise fee that it passes on to the user? Is this also
true regarding Oceanic itself and the other affiliates?
What is the explanation for the deceptive billing
statements sent to users? There is no mention of the franchise fees
being placed into an interest bearing account instead of being remitted to
the state. There is also no mention of the questionable legality of
Oceanic and its affiliates even collecting these fees from users within the
Ninth Circuit Court's jurisdiction. The user should be informed
of this on the statement and should be given the option of not paying the
fee, if they wish, unless and until a final determination is either made by
the FCC or the U.S. Supreme Court. Until then the Portland ruling
applies and users should be made aware that collecting this fee is presently
illegal.
The assertion made by the unknown respondent, that
Hawaiian Cablevision provides a link to my ISP but doesn't provide
actual internet service is ludicrous. That would mean that RR is
free. RR is solely owned by Time Warner which solely owns Oceanic and
its affiliates. Oceanic and its affiliates state repeatedly that they
are offering internet service in their advertising. This is a lie
if subscribers are paying for a "link" to their ISP but
are not paying for internet service. No where does Oceanic's
advertising state that the subscriber pays only for a link to the free
internet service. Further, the subscriber agreement between myself and
Oceanic and its affiliates states that the "Road Runner Service offers
subscribers internet access..." so how can the charge for Road 'Runner
Service not legally be a charge for internet access? Additionally,
the Road Runner Residential Order Form and Contract which I signed states
that "the subscriber named
below (Subscriber) agrees to purchase from Time Warner
Entertainment Company, L.P. Hawaii Division (TWE-HAWAII) the Road Runner
Residential Service in accordance with the Road Runner Residential Terms and
conditions of Service". But I didn't purchase the Road Runner
Residential Service according to the unknown respondent. Instead I
purchased a "link" to this service. It appears to me
that this assertion by the unknown letter writer from the unknown
address is a feeble attempt to get Oceanic and its affiliates off the hook
for collecting an illegal internet access tax.
These are just a few of the questions that occur to
me.
Sincerely,
Marilyn
As of the last update to
this page, no response has been received to the November 16 reply and
additional questions.
On November 19, a complaint
was filed with the DCCA. See the complaint.
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