This is the first meeting of the Peg Access Study Committee, which was established by Act 79, this past session. It's June 27th. We're in room 10 of the State House and we're scheduled to start at 10 or thereabouts and run until 11.30 today. So what I'm going to do is just walk through the charge and then your first order of business as you will see is to elect a chair and vice chair from among your membership. So I think you're all, you now have hard copies of the charge so we'll just read through it. So again, section 27 of Act 79. So there is created a Peg Access Study Committee. The committee shall consider changes to the state's cable franchising authority and develop for legislative consideration, alternative, regulatory and funding mechanisms to support public educational and government access channels and services to communities across Vermont. The membership includes a member of the Senate, a member of the House, the Commissioner of Public Service or Designee, a member of the Public Utility Commission or Designee, a representative from the Vermont Access Network selected by its Board of Directors, a representative from a Vermont cable company selected by the Governor and the Executive Director of VLCT or Designee in terms of the powers and we'll go around and do introductions and then you can elect your chair and vice chair. Powers and duties of the committee. The committee shall consider changes in federal and state law and policy, market trends and any other matters that have an effect on the availability of or funding for Peg Access channels and services in Vermont. The committee shall hold at least one public hearing on the value of Peg Access television to Vermont communities, the costs of such programming and services and funding options. The committee shall solicit input from regulators, communications providers, access management organizations and any other organizations or individuals or teams appropriate. In terms of assistance, the committee shall be entitled to staff services of the Department of Public Service, the Office of Legislative Counsel and the Joint Fiscal Office. In terms of a report, the committee shall report its findings and recommendations in the form of draft legislation to the Senate Committee on Finance and the House Committee on Energy and Technology on or before November 15th of this year. The Commissioner of Public Service shall call the first meeting of the committee, which was to occur before July 1st. The committee shall select a chair and vice chair from among its members at the first meeting. A majority of the membership shall constitute a quorum, a member's physical presence is required in order to count toward a quorum and to vote and the committee is authorized to meet up to six times and shall cease to exist on December 15th of this year and then there are the compensation reimbursement provisions in subsection G. So that is the charge. Maybe if you'd like to do introductions and then have a discussion on your election of the chair and vice chair. Let's start with Mike. I'm Representative Mike Intoschka, I'm the Vice President of Government Regulatory and Community Investment for Contest Western New England. So Maria Royal just went over the charge that we did. I am Clay Purvis with the Department of Public Service and I am also the designated Department of Public Service. Okay. Would you like to solicit nominations for a chair, vice chair, discussion? Is there a motion on the table? I'll make a motion for chair and vice chair. We can do that together. Lauren Glendividian for chair and Dan Glanville for vice chair. So maybe we'll separate those out in terms of voting. So you have a motion that Lauren Glendividian is the chair. Is there a second? Are you ready to vote? I think we should ask if she- No, no, no. I would actually prefer to nominate the legislators to be the chair and vice chair of the committees. I think that makes more sense, just for a variety of reasons, but that would be my recommendation. So I don't think being the chair is the position I would take. I would second that nomination, Lauren Glend's nomination, because I do think it's sometimes more effective to have a report that has some very strong advocates who are legislators who are meeting that effort, and you get one over here when you go back to the State House. You're saying June, don't you? To nominate the legislators at this time, I think. Further discussion? I'll second that and then nominate back and forth the chair. I see no list goes. I am happy to serve in whatever capacity is helpful to this committee, and I'm also happy to do it as co-chairs, however we want to do it, or if there are other people that would like to nominate themselves, I'm also happy to entertain that idea, but that is what the committee wants. I'll serve in that capacity. Further discussion? Seconding that. Okay, so there's been a second motion, nominating Senator Becca Ballant as chair, which has been seconded. Any further discussion? Would you like to vote at this time? I guess we can just vote, yeah? I show hands, or okay? Becca for chair, all in favor? Okay, I think that's the majority of the membership, so now do we have nominations for vice chair? I can nominate Representative Yantachka for vice chair. Okay, is there a second? There's a second, and all in favor? And there you have it, I will turn it over to the chair and vice chair. Thank you. And you did have a proposed agenda that was emailed around, so I leave it up to you. So it says opening statements from members of the study committee. I think it would be useful for all of us to know what lands or frame we're bringing to this conversation and I would recommend starting with the folks who brought this to our attention in the legislature, which if it's okay with you, we'll start with basically what is the impetus for while we are here? So why don't I just read this statement and then I can clarify if there's any other. So thank you very much for the establishment of the PEG Access Study Committee for the legislature. And this provides us an opportunity to take up this work together. A great deal is changing in the world of information services and media delivery and some of the outcomes that we can anticipate from those trends and some of them are unknown. Through the work of the PEG Access Study Committee, we hope to be able to make recommendations to the Vermont legislature that will support the sustainability of public educational and government access TV channels and the 25 community media centers that provide production, training, and management services to communities across the state. Vermont's community media centers produce more than 18,000 hours of local programming each year and employ more than 100 staff and utilize about $8 million in cable subscriber revenue to provide value and service to our municipalities, educational institutions, and neighbors. The people that rely on Vermont's community media centers range from municipal officials to community activists, teachers, students, nonprofits from all sectors, people with disabilities, artists, entertainers, and people who lead public initiatives like this one. Our work is highly regarded across the state. In a recent Vermont poll, respondents told us the public access television is either somewhat important, 37% are very important, 41% to them, and that we should be looking into a combination of revenue from local government, state government, philanthropy, and subscription fees in order to address the changing revenue picture in the cable landscape. We look forward to this process. We have ideas to bring to the table as Vermont Access Network and we're ready to take up the work. And we're optimistic that a creative and sustainable solution can be found to continue this important work in part through the legislative process. Thank you, thank you. So, representing the attachment, do you mind? Sure, so one of the concerns is that we need to keep community access television viable. And I think that since a lot of the access is now being done by the Internet, it might be useful to look at funding models. And I know it's the Reliance on Cable Television Revenues has been the primary means of funding at this point. I think we need to look at what broader funding capabilities there are in terms of Internet access and how that should be done. And can you just remind us, Representative, what district you represent and how this issue touches your constituents? Well, actually, yes, I represent Charlotte. And Charlotte, generally, most people in Charlotte do not have cable access. We are sort of, by Waysfield Champlain Valley Telecom. There are some residences on the periphery of the showroom timeline that do have cable access and so they can get community access established that way. If I access it, it's generally through the Internet. So I go to the CCTV URL and pick up what program I need there. Charlotte is served by having its public meetings for the select board and the school board recorded by, I think, the candidate. So that service is available in terms of government operations. And that's valuable. Thank you very much. I'm happy to be a part of this. I bring 21 years of experience in the industry beginning in 1998 and about two years experience. I was a city solicitor in Massachusetts where I actually worked on some cable transactions as well. Today, my jurisdiction includes the Western New England region of Comcast, which includes five states of New Hampshire, Massachusetts, Connecticut, New York, and, of course, Vermont. I have a good deal of experience in multiple models of access across that jurisdiction and across the country. So I'm happy to be here to provide some insight into that. So I'm with the Vermont League of Cities and Towns. We're an association of all the cities and towns in the state. And we think that Peg Access TV stations are an invaluable resource for the local governments.  And they also provide both accountability and transparency for local governments because so many of our board meetings on the municipal side are televised now. I wouldn't put a plug in for also televised in school board meetings, but that's a different issue. So we're happy to be here and look at how can we actually make this a sustainable lot going forward. And so in the interest of full disclosure, my child attends BC TV summer camp in Brattleboro and learns how to do production through that program there. And I have a strong affection for our local access provider in Brattleboro, as Karen is spoken to, as Mike is spoken to, that we rely on public access TV channels to broadcast meetings that otherwise many of our constituents wouldn't get to. In Wyndham County in particular we have an aging population and many people get their local news strictly from public access. And so I think we're very concerned long term, many of my constituents long term about how we're going to create a sustainable funding stream for this indictable resource. And I'm PD and designated by the PC. The Department of Public Service requested a workshop process on the declining funding. It was a case that was recently closed, 19-0367-PET. And this is a nice follow on to that case that was closed recently to look at the funding opportunities and such. And the hearing officer in that case recently retired. And so I may have some very basic questions that I hope I can be excused from asking and that you're welcome responding to. And the commission's happy to participate in this process. You bring up a really excellent point, which is that we're coming with all different levels of knowledge about this. And I know for me I really am coming from the lens of an advocate and really trying to find a path forward. But I am no means an expert on this. I feel like I'm coming up to speed. So we all need to feel like we can ask the questions and not feel judged by our lack of knowledge. So I think that's the only way we're going to make this a useful endeavor for all of us. So I appreciate you saying that. So I'm Clay Purvis of the Department of Public Service. And we have long, for a long time now, interacted with television stations and cable companies. The PUC is the statewide franchise authority for cable television. Vermont's very different from most other states, correct me if I'm wrong, Dan, but most states franchising is done at a municipal level. Vermont has chosen to franchise cable companies at the state level. So the franchise grants that companies like Charter and Comcast and Waitfield Champ, they get from the Public Utility Commission, the Department of Public Services, public advocate in those proceedings. When we do a renewal or a certificate of public good for a cable company, the primary issues that come up are access to cable television and how the cable companies interact with our 26-pedig stations. 25 centers. So that's kind of where we come from. I'm looking at the industry long-term, you know, folks are moving away from cable television. And the law is pretty clear. Federal law dictates how much the state can collect from cable subscribers as far as the franchise feeds, 5%. Vermont, in most cases, from most companies, collects the full 5%. And that is the primary revenue source for AMOs. And so as cable subscriptions decline, so will the revenues. So one of the things that I think would be useful for us before we move on to the discussion of how we're going to engage the public on this in developing a meeting schedule is really been thinking about this in terms of there being three buckets of issues that we need to wrestle with. And I'm not wedded to this frame at all. This is something I just dashed out here when we were all talking is that I see us needing to discuss cable franchising authority as it currently exists where we might possibly go for here. What are the federal limitations? What is the role of the state in this? Legislative recommendations on the regulatory landscape and then funding streams. Those are the three that I sort of fleshed out. But if there are others or if you think some of those are in the same bucket, I'm looking to the folks in the room. But I feel like often with these work groups, you've got a small number of times that you're meeting and I think it can be useful to check them out so that we know on particular days we're dealing with particular issues or else we get to the end and we don't have any specific recommendations. And Karen, you I'm sure have been involved in other study committees and groups over. So I also defer to you what you think is a good model going forward. I think that means a lot of sense trying to get all the issues out on the table right in the beginning and then go back through and discuss them. Do we need to establish the ratio of how many people access via cable versus via the internet? Perhaps a presentation from one or more of the AMOs or I would defer to you Karen about just the basic background about how the 25 are set up and how each of them are different and the services that are provided.  I think that would be helpful and maybe we could do that in conjunction with Dan and you can provide the Comcast cable from a lot of people perspective on it. We have kind of two sides. Sure. So maybe four categories. Maybe we brought it into a fourth category of pay use. I don't know how we would state that. I don't really thought about it. Use subscription. I get we're coming from on funding streams but we brought in that a little bit perhaps to go into funding streams and spending. And the first two sound very good. I have a, I can go on for hours at my cable franchising authority. So I'm happy to put this in details. I would recommend a lot of caffeine before I go on. Excellent. So it sounds also as if you were drawing a picture of where we are today. What's the current situation? What is the state's authority actually require funding in different realms? Are there any federal pre-emptions on state authority? And then possible, and ways forward in terms of alternative funding streams available through the legislature. And then I think what Dan is raising are questions of economies of scale, how we're structured if there are different ways to think about the delivery of service locally and the delivery of service statewide. Sure. I think it would be helpful to also look at where there are holes where, for instance, we don't have access to a Peg TV station where I look, nor do we have access to internet. So I get my information when I come into Montpelier or go to the coffee shop, and I'm not alone in that respect. So you're in a Peg desert. I mean, just like in a county desert. So, and it's only 12 miles outside of Montpelier. Sounds like paradise. Just like in a county desert. Because we all have Peg TV. And so do we have a map? Yeah, we can produce both the map of the franchise towns. So most towns are franchises and we're not. As well as cable plans. That would be great. So I think for the next meeting for us to be able to look at a map. And we have a map of the access centers across the state. Yes, we also have that as well. And so what I also hear from the group is having representatives come in from some of those access channels. They come in and talk to us about the work that they do and where they are. Is that true? Yeah. I just want to make sure I'm reading the group right in terms of having a background of all the different services that they provide and how they connect. And I'll be sure. Sorry. No, no. Yeah. Yeah, I think that's good. But also some data on where that funding is and how it's been trending. Cables subscriptions are going down with the cost of cables going up. And I know we saw a lot of that in the PEC proceeding. But it probably would be beneficial for the community to have that. So Clay, who best to supply that data? I want to make sure that I leave here with a list of people that I need to reach out to to invite them in. So who would you? Well, we can certainly provide data on the operations and the access centers and where they are and examples of the service that we provide. I remember there was a, in the proceeding there was a line graph which had all the different revenues. I can do a fun trending just for R22. But it would be limited to that. A fun trending since we got into the marketplace in 2006. Okay. Seeing VTEL and Weitzfield. Yeah. I think it gives, I'm more inclined to defer to you. I think it's a pretty good snapshot of overall trending. Yeah, and we have the other revenue sources that you had asked about in addition to cable subscription, how access centers funding themselves, what's the prospect of them diversifying revenue, philanthropically or other ways. I think Karen, if I understand you correctly, you're raising a kind of bigger question, which is if the value of PEG is to provide open government and leave communities together, and there's this public good associated with PEG, but there are communities that don't have this public good. Or probably more likely portions of communities that don't have public good. Is there, is there something in our thinking that would then provide opportunities to extend the service? I mean, if we break out of the cable funding model, through alternative funding models, what are the implications for extending the service to those, if for example, and I know there's federal preemption issues, but if for example, there was some kind of internet fee, just, that's a much, it's a different audience than the cable. So, would we, would we extend the service to these other places? How do you deal with it? I think that, that's a bible question. I think that, maybe also a larger question is, like how do people get their information, and if you, maybe you get it from the internet, maybe you get it from your tech station, maybe you don't, you need to have access to something, I think. Yeah. And there are places in the state where that is not the case today. There's a difference between the ability to access it, and the, the services provided, right, the money that goes towards, right, what is actually, you know, available, that you could access it if you were in a different location or something. So, I guess I want to kind of understand that, some more, too. Can you break that for me one more time so I can get it? Yeah, thinking about the, access to the information as opposed to the production of the information and the, effort that goes into, contributing. So, so Brian, there's one way to think about it, is the services that are provided by a community media center that are funded primarily, primarily by cable subscribers, with some other revenue sources, and then there's the reach of the content and the public benefit of the availability of this content, whether you're a cable subscriber or not. Right? Yeah. So there's, I mean, that reach is funded by, by these revenue sources, but it's no longer confined to cable television because there's now internet distribution of this content. So, so a person may not have access at their resident, but that person's talent government could be using it, to record the meetings and things like that, and then if that person did have access to the internet someplace else they could get. Yeah, I live in Northfield, and Facebook Live, they broadcast on Facebook Live, so even if I just had a cell phone signal, I'm not, you know, that connection. That way, you know. Well, this highlights just how, with any of these topics, as soon as you start pulling one thread, you see how it's connected to others, because I'm realizing now that the subscription, for lack of a better word, is kind of a slippery concept here because you may not ever watch public access on your television. They only be streaming it through your phone and that those are still people who are using the service, so we not capture them in who we think has access at their homes. And it's obvious, but I think it's good to make it explicit that it actually, in many ways, serves more people than you might think initially based on who's watching it at home. And to your point, Karen, there are also people who don't have access unless they're traveling somewhere outside of their region. So this is the nature of connectivity in Vermont, as you know, Clay, very well. What are the other questions that people feel like we need to wrestle with up front or background like people feel like they need in order to feel equipped to discuss these topics with some phase of knowledge? Do you expect that we have time for regulatory issues? Because we've got nothing to make good use of it. I agree. I agree. I just want to make sure there are people in the room here who can really, I think that would be a great place to start. Are you saying today? Yeah. Yeah, I agree. And so the question is who among us or in the room can give us the background on the regulatory landscape? Because I think you're right. I think it's a good use of our time on this first day. Yeah, I think very soon. You admittedly came unprepared to do that. Right. Understood. We can put something together maybe for the next meeting. You can talk a little bit, kind of introduce it. Yeah. That's a way to get activated. It's really important. But it's important, I think. It's absolutely important. So I wonder, Clay, and I don't want to put you on the spot, but would it be useful for us to take a few minutes break and for you to think about? Yeah, let's do that. Can we do that? And then come back in, like, how much time would you like? 10, 15 minutes? 10 to 10 minutes is good. Let's do that. And then you can get your thoughts together and figure out what information would be useful to us. But I think, Representative Yantash is right. We're here. It's always hard to get a group together. So instead of just going to the next meeting, let's use this time well. I think one thing that would help me would be to know if there are, you know, aspects of funding that are just not possible because of preemption and so that we can kind of put that aside and not waste our time. And not waste our time thinking about that. Great. You said that you could talk offensively, so you probably got a lot of knowledge on that. I'd be happy to follow some background now. Great. Dan would be a big counterpoint. Yeah. Okay, great. So let's take a 10 minute break and meet back up and then we'll get as much background as we can and that will help us figure out what other questions we need to get answered for the next time. Does that sound good? Great. Okay, great. Thank you. Thank you. So we should we were missing mentioning that we are recording this for broadcast. Things to work on? Meeting? And the Department of Health Service. Oh, both. Okay. So this is broadcast. So we can do that and also record the meeting. It goes back online to have a discussion about meeting minutes because we were unclear whether we needed to take the minutes. Maria, do you have any questions? I think Roy and I spoke about this a little bit, but maybe it's a decision about the committee. Yeah, I'm not certain what events are required. I'm just not certain. Especially if you have a recording. But maybe, you know, we can certainly do minutes. But briefly have summarized the actions taken. Sometimes we call them meeting notes so that, you know, get into a whole meeting of legal issues. And as far as some of these documents that we have here, it would be good to get them maybe. I can send that. I can. Talk to Peggy Delaney and she can help us to or help you to have a committee assistant from the Legislative Council. We can help with the scheduling and the posting of documents. Minutes or notes. So, for future meetings. Excellent. So, Lauren, hand it out. Service. And then the... A little fact sheet. Thanks to Kevin Christopher, our president. Thank you. And I will send electronic versions of that to Maria. I can make hard copies right now. Anyone out there need copies? Can I maybe get... Yes, you can have one of each and I'll... You can take them out. Thank you. So, does it make sense to start with Clay or does it make sense to start? I can start. Dan will be probably much more knowledgeable about cable franchising than I am nearly cable franchising. Something I've worked on a lot of the department. We've had involvement in it to testify to cable cases. But it's not something that comes up that often because cable franchises are usually given on an 11-year basis. So, I guess I'll start at the beginning. There was a time when rural areas did not have access to broadcast TV. So, going back to the 70s and the 50s. When good broadcast TV developed, it was really an urban, suburban amenity for public good. Folks in rural Pennsylvania were not able to cat. The terrain we know the reason our cell phones don't work is the same with broadcast TV. And someone in rural Pennsylvania got the idea of beaming signals in on satellites and running lines, or actually broadcasts in 10 of them that they could then re-broadcast using cabling to people's homes and that's how cable television developed. We had cable television developing here in Vermont as early as the late 70s. 50s? We had cable in the 50s. So, you know more about this than I do. I'm thinking of companies like TransVideo. That, to me, I think is the earliest one, right? In 1982, there were 50 cable companies in Vermont. Right. So, these were individual cable operators and that market is consolidated over time. Today we have 10 cable companies. The biggest are Charter and Comcast. Waitsfield, Champlain Valley comes in around 3 and then we have some smaller ones, Duncan Cable Southern Vermont Cable TransVideo in Northfield Stowe Cable So, we have lots of little cable companies all over Vermont as well. Most of them have tech channels, not all of them. I believe Stowe and Duncan have the informal pegs, public access TV stations. They don't have formal agreements. VTEL also has a very large cable that they provide cable in all their telephone exchanges. So, we have about 10 companies. In the early 80s the federal government passed legislation that started to regulate cable companies and for purposes of peg federal law delineates, kind of sets the guard rails for what franchising authorities can do with regard to peg and just in general, really. So, the big thing is a cap on the franchise fees that local franchising authorities can levy on cable subscribers. The law says cable companies are responsible for it, but they can pass it on to their customers.  In most cases it's the maximum 5%. I believe some cable companies have lesser amount, like Southern Vermont and not wheat tires, the full 5%. Sure. Maybe no. Two. Two. They do 2%. So, the idea there, is something that local franchising authorities can pretty much do anything with. I don't think there's any federal limitation on what you can do with that money. You can buy fire trucks with it or pay the roads. Most franchising authorities use it to support public access TV. Nationally, that may not be true. That may not be true. I think many franchising authorities need the general funding. Yes, and some states like Michael Levin, Virginia has a prohibition on levy and franchise fees. So, not every state or local franchising authority is actually levy the fee, but we're allowed to do it and we do it. Yup. So, are they a piece on a franchise to support? I wouldn't say both. We defer with Dan, but they can certainly pass that fee on to subscribers. So, it is a line item on here, Bill. So, the federal audit is set up so that Clegg gave a great history of how franchising came about and what it was determined at the time it was defined as what was called a cable service. And today the video portion of what we provide is still defined as a cable service. And it is the franchise fee that is put on the cable service up to the federal cap maximum of 5%. Clegg's correct that it doesn't vary from jurisdiction to jurisdiction. Some, on average we're closer to 5%. There are some that look at it in other jurisdictions where it could be lower, but on average we're probably closer to 5% in those areas that do allow for it. It does vary by state on how the dollars are allocated. For instance, in Massachusetts it's very specific that it's to be used for cable purposes. And I think in New Hampshire there is much more broad discretion as there is in other jurisdictions of how it can be utilized. So that does vary by state organization, but I think in most cases it's predominantly used for the provision of Peg Access programming. So the 5% cap is there. There is a provision that allows for capital revenue as well. Capital revenue is distinct and different from the 5% cap. It's specifically we can go on our days talking about what capital is. It's specifically outlined as to what we traditionally know capital has. Here in Vermont most of the AMOs I think are capped at 5%, but there are some that have additional 1.25% or additional 1.5%, which would be the capital portion of that which could increase that. On top of the 5%. On top of the 5%. And is that passed on to the customers as well? There's also a provision of federal law that's outlined in the franchise agreement that the dollars negotiated for franchise fees associated with cable service. There is a and I lost my train of thought when I told people I knew that. So how many of you are with that? What was that question? Well the franchise fee, the capital is 1.5%. Oh how it's passed through? There's a provision of federal law that allows cable providers to pass through the cost to subscribers. We specifically outlined that on bills as to what it is. And if I could just clarify there's a section in it which is the Cable Communications Act of 1984. And so just as a PS when PEG was first funded in Vermont, the Cable Communications Act of 84 did not exist yet. So the first funding came through in April. And then the Cable Act was passed. So despite the fact that there was in federal requirement, Vermont felt that it was important. So it was all of what the state does. And Vermont has had, as you point out, a long history supporting PEG access with that franchise fee. It's never deviated from that. And so if I could just clarify, there is nothing statutorily that insists that you must use the franchise fee for a particular thing here in Vermont. That's my understanding. I would defer to Clay on that. We'll look that up. I'm pretty sure that there is no no requirement that the money used to support PEG is just something that I think is developed through the history Cable Television and the decision that Vermont had made from the beginning was to support PEG with that franchise fee. If I could just add to it, the federal outlines it as when you're negotiating franchises, it looks at the future cable related needs and you consider the cost of meeting those needs. So that's the provision that it outlines. In most jurisdictions it's a broad understanding of what the cable related need is. So as a result, the funding is probably a little bit broad as well. So it allows for, where it's predominantly used for PEG access, it does have some discretion in other jurisdictions. Whereas some jurisdictions do have a very tight definition that would be utilized for PEG programming. You would see that, for instance in statutorily the CPG here, the Certificate of Public Good, gives the authority and the specifics under the Certificate of Public Good in Vermont is that we then negotiate with the access management organizations and so it's pretty clear that the funding here is to go in that direction. Yeah, so I'm going to get to state in the long end. So the federal ethics basically says there is a franchising authority and that franchising authority may require up to 5% for cable related purposes up to the discretion of the franchising authority and then capital funding that may be over and above that. And that they may pass through it. And then the state franchising authority to state then says here's our here are guiding rails and that's what you're going to talk about now, which is PSA 30 and UL 8 and where we lay out the details of this arrangement. So Lauren, you said 5% and you said 2%. What's the difference? There's a 5% cap in the federal, so the federal law says franchising authority may up to 5%. No, it's 5%. We were talking about a small provider in southern Vermont. There's a range in Vermont and most the providers pass through 5% to their cable subscribers, but in the case of central Vermont it's 2%. And that's determined when the CPG is issued. That's when you negotiate. That's actually a contract between the cable provider and the access station. We do separate meetings with all of the AMOs to negotiate our agreements. So historically, that was negotiated in the CPG process and at a certain point in the early 2000s it became a contract discussion as a side agreement to the CPG. Can I just ask one question about the federal law? Is there any likelihood that those parameters are going to change at the federal level? Well, that's a good question. I think you can only speculate. I'm not up to date on what's happening or not happening in Washington. I think, though, that there are more likely scenarios that the market will change around the law. So you're going to see an eventual end of the quote-unquote cable service. I've gone by for almost a decade now without cable television. Couldn't be happier. And a lot of people are moving that way. So Netflix doesn't pay the 5%. But there are FCC proceedings that are of interest to us and that will play themselves out this summer, which have to do with a number of questions related to what is admissible payment for franchise fees and other aspects that have a kind of deregulatory aspect to it from the FCC. But these rulemaking are going to have an impact. But we're not sure what. And they're going to roll in the middle of July, end of July, on the most recent rulemaking. That's being clear. That won't change the statutes. That won't change the statutes. FCC's interpretation of how those statutes are enforced. I think the thing, you know this, but I think it's just important to point out is that cable law, probably like every law communications law, is this dance between Congress, the FCC, and the courts. So Congress passes the law. The FCC implements as the administrative body people don't like what the FCC interpret. They go to court. The court then throws it back to the FCC. The FCC tries again. Congress says, we're going to take it back to every rightful law. So there's this constant process that happens. And that evolution of telecommunications laws comes from that process. You see? I think that does happen. So in Vermont, unlike most states, we have decided that we will do franchising at the state level. So the Public Utility Commission provides cable companies, CPGs, or could be the public good to operate a cable plan. Can I just state one thing? Let me do a pending CPG that we're all involved in, or three of us at this table are involved in, and more of us at this table are involved in. So, I was remiss in not pulling the two of you aside, but I think we can get through meeting one without... So why did I understand you're saying in the interest of full disclosure, is that what you're saying? Yeah, we have a proceeding before we're in mediation right now as a result of a federal court proceeding, and also as a result of the federal court proceeding we'll be meeting on July 11th. So, we have been having very productive meetings. So I'll leave it at that. Okay. Involving multiple people at this table. And then as an aside, I'll leave it at that. Four, actually. Four. Yeah. Yeah, in most of the audience. Yes. Good to know. Okay. I'm not personally involved in the personal PCs. Yes, Kyle. If we could possibly schedule the next meeting after July 11th. July 11th. So what are you saying to schedule this meeting? This meeting, yes. And is there, given that work at TV is here and that we're having this conversation in front of people who will be watching, are there things that people watching this need to know about this issue that you just brought up? Does it impact the conversation that we're having here? No, I don't think it does. And I don't think so far anyone has even jumped into that water. I just wanted to put that out there. And it's not... We're proceeding, it's not adversarial say, and we've been making good progress. Wonderful. I just want to make sure are there any other elephants in the room that I am not aware of? Probably, but I'm not aware of them either. Okay, great. As it becomes clear in the inches of full transparency I think we just need to get it really clear where we're all coming from. That's all I'm saying. Great. We've got about 20 minutes. Great. I can wrap this up. Yes. We grant on a town by town basis. So Comcast, if it wants to serve a new town we have to come to the PC and get a CPG to serve that new town. And we have a cable franchise map which I can bring to the next meeting. It'll show you the territories. Peg stations are generally designated for particular communities. So there are multiple peg stations in a single cable franchise territory. I believe Comcast has 22 VTEL has 2 or 3 Charter has a couple and they each negotiate separate contracts with those AMOs that is per board rule. Pegs are able to have access to general capacity. It's a big issue. We're not an issue rather but a right or a factor of peg stations that are allowed to be broadcast or rebroadcast by the cable provider. They are allowed to have facilities that stand spoke to the capital budget. They are allowed in certain areas to be transmissions so they can do this broadcast through the cable plant and police chime in tomorrow if you have things to add. Well you're talking about rule 8. So rule 8 is what lays out what the cable operators obligations are overall for the entire to receive a certificate of public good and a subset of that rule 8.4 which outlines the responsibilities of a cable operator to provide peg access and how they may do it and essentially they may delegate it to what is called an access management organization which receives this funding and is obliged to execute certain services on behalf of the community proxy in effect for the cable operator. So what you're describing are the operating and capital resources that we have to work with and that's outlined along with our obligations to provide reports and to be accountable for the dollars. So rule 8 does provide I would think of a significant amount of structure and how the cable companies interact with tech TV so certainly worth reading that specifically 8.4 Yes, so this rule 8 series governs all PZ rules related to cable service as well as things like rates and customer interactions one important part of the rule is line extensions so as you've heard me say to all of you before we don't regulate the internet we do regulate cable video and so there's a rule in here about how cable video plans should be expanded and so that somewhat pertinent to this conversation there's a clear rule listed how new subscribers can get service. So since the state does not have an interest section on the internet by FCC rules um is there anything that the state can do in order to address the fact that a lot of people get their access to PG through the internet? Well certainly it's been discussed in the past whether similar franchise fee could be levied on internet subscriptions I think the answer is we know not only is we talk about maybe a point of discussion but there are two federal laws there's the general FCC policy on jurisdictional limits of the internet regulation it's federally regulated and they're not going to regulate it and then there's a law that prohibits the taxation of internet subscriptions. So I think that understanding what the statutes are and what the federal preemptions are and if there are any asterisks to those federal preemptions would be helpful for us to perhaps legislative council might help as well as the people at this time and I think that the federal law prohibits the states from living in tax on internet subscriptions. So I think that understanding what the statutes are might help as well as the people at this time. We take up that section of legislative recommendations on regulation or funding streams that would be pertinent research. Maria does that feel? Logistically once you get in touch with Peggy at Ledge Council we'll figure out who's sending out information to the committee. Great. Well, if you'd like I'd be happy to have a presentation for our next meeting just on some specifics with that but maybe also the council's office could look to other jurisdictions I think that some similar New England jurisdictions have looked at a franchise fee on other video providers and maybe look at how they did that so that we could have a discussion surrounding that. Pretty I'm pretty sure some New England states did. Here will you as you are able to think of some more specifics to put Maria sort of chasing that down I think any clues to help her figure out where to look. I'll get some detail on that and if I can I'll provide it to you before our next meeting. One last thing I've always been intrigued by a section of the cable rules on a statewide AMO and on the having a statewide AMO other. AMO is Access Management Organization sorry I lost the We lost the acronyms. Lots of acronyms. So what does the AMO do? Well an Access Management Organization is what the egg stations are run the egg station. So did you have a are you fascinated because you are not sure why this is in there whether it's a tool that could be looked at as a way forward. So in the cable statutes there is a section that contemplates the establishment of a statewide Access Management Organization and that was contemplated at a time when we were negotiating with Adelphia for a statewide TV channel and then the question was who would run this TV channel. So this rule was rewritten around that time and so language in it basically says that an entity could come to the PUC and apply to be the entity to run a statewide Peg resource and that could be a channel, it could be a network I mean that's evolved over time but that's it's a placeholder for when an entity could come and do that and that's something Vermont Access Network has prepared to do we have not yet filed to do that but that might be an example of an entity appropriate to do so. So in that event all the individual AMOs would evaporate? No, in that event the Vermont Access Network which is the Mutual AIDS Society for the animals around the state would essentially be a management organization if we were going to collaborate on the statewide channel for example it would be the entity that would say we're there is there there we are an entity as opposed to these 25 access centers which are kind of amorphous one of those access centers could say I want to be the statewide entity also but in this case we kind of put our weight behind VAM being our representative to help manage a statewide resource if one were to emerge so it's a placeholder it's an aspirational other things that you wanted to tell us questions that folks have at this point right and so what I just heard these folks saying is they would like it to be after July 11 correct? If that's okay. So I was just going to propose the third Thursday of the month as a way to start the conversation let's get our camera to you if you want we want to cover regular otherwise we can take the 18th and then so I'm not sure if that interferes with the people's summer plans but that's one way that would be the 18th of July would be the 18th of July and the 16th 15th of August so for I can do the 15th of August but I was wondering is there anyone who can do the 19th of July? sure and I'm actually away on the 16th of August but the 23rd work for you? I mean the 22nd the 22nd would work the 23rd would work the 22nd would work for folks actually that would be better the 22nd of August so I'm sorry Danny you said 719 yeah the 19th of July if possible the 22nd of August works for me as long as I'm back at Aerosmith and then September get out get out that's nice September would be the 19th of September September 20th Friday are these all the new meetings? this time is best for me it gives me time to get up and grow but I'm wondering though would you extend the time a little bit more than 90 minutes? I set the first meeting at 90 minutes purely because I have to be in Linden at 1 that would selfish not always is it okay if we stop after 3 and then maybe reschedule some more once our calendar is filled up a little bit because I feel like if I go into October I might be lying about my ability I agree so I've got July 19th, August 22nd and September 20th okay and block out 10 to 12.30 that'd be great that sounds good so can we do those dates again could you mind repeating those? July 19th, August 22nd and September 20th perfect and we're going to do 2.5 hours that's a great quick question so either here or room 11 in this room is enough and so we should revisit October, November scheduled in August just that'd be perfect I'd just feel like I'd be being dishonest okay thank you for your time it's hard for all of us and I appreciate you doing this effort because it's important to a lot of our Vermonters so we can talk about public process at the next meeting thanks just as a we are broadcasting on our website we'll do a more formal announcement about after the next meeting great so just to clarify the next meeting on Fridays so I actually did have another question do you generally these kinds of meetings we do have a fair number of audience maybe they're all going to say the same thing but I think it's helpful I do too so logistically here do you see that happening at the beginning at the end of the meeting well it could happen at the beginning of the meeting if the chairs strict about the time I don't really have a preference but I do think it's important can I ask a good question about that I thought the provisions were that we would have seven meetings and one public hearing is that the way it was set up no more than six meetings six meetings and is the public hearing one of those meetings or separate there is a public hearing I think the way that we had when we wrote the amendment was that that was one of the six okay so I guess it would be good to open every meeting with that opportunity I think the beginning of the meeting is better because we wait until the end and we may not get to it I agree any objections to that does 20 minutes seem reasonable I mean 15 15 or 20 we can certainly always be flexible and if there's nobody there that wants to get into the agenda then we'll give structs times for inviting witnesses yes exactly right because if we identify functional experts I can actually have people come in exactly because of other people in my house I might tell them I know everything I do now but they don't believe you because they don't believe you anymore


Good morning, and welcome to Vermont House Judiciary Committee. It is Friday, March 12th, day of crossover. So we're doing a number of different things this morning, this afternoon. We are going to be turning to H145 in a second. Before we do that, I want to just let committee members know that Walter White was listening to our meeting this morning, and so she is aware that we will be considering her concerns next week, and was very appreciative of that and does understand the process and why we need to vote today. But we'll consider it. And I have sent her concerns to Rory, and we'll also send them to Representative Ann Donahue when I have a chance. So hopefully we can further understand all those concerns and come to some conclusion on that. But we will be taking testimony on Tuesday. OK, so now I would like to turn to H145 regarding use of force by law enforcement. And there is, I think, yeah, Martin has sent you all a proposal from a DPS where she wants, where they're suggesting to combine the two sections. So, Bryn, I think I'll turn to you first to help us explain what she's proposing. And then if you do have any thoughts in terms of case law statutory construction or otherwise. Thank you. So good morning, committee. For the record, Bryn here from Legislative Council. So my understanding of the request from DPS is to combine two sections, two subsections of the standards. And does everybody have, does everyone have the latest draft in front of them? The draft is 3.1. The last version you looked at was 2.1. There is an additional section in this bill that's in this draft. That's the only change between this draft and the previous version you looked at. And that additional section is the justifiable homicide statute. So I'm not sure we need to start with that. We can jump right into the request from DPS. But I just want to make sure everyone has the bill in front of them so they can see what I'm going to talk about here. Otherwise, I can share my screen. How about, let's see, why don't you just give us a minute to get it? Thank you. So it's good to go. OK. So if you're looking at draft 3.1, scroll down to page 2. And you'll see about halfway down the page says subsection B, the use of force provisions.  So as a reminder to the committee, these subdivisions, subdivision 4 is that articulation of the standard by which a finder of fact should judge an officer's use of force and whether or not it was reasonable. So this provides that use of force is objectively reasonable. And an analysis of that reasonableness has to be evaluated from the perspective of a reasonable officer in the same situation based on the totality of the circumstances. And the law enforcement officer's failure to use feasible and reasonable alternatives to force are a part of the consideration for whether or not the use of force was objectively reasonable. And the following subdivision 5 is that specific directive to law enforcement that provides that if a law enforcement officer knows that a subject's conduct is the result of some type of impairment or condition or language barrier or another factor that's outside of the subject's control, law enforcement has to take that information into account in determining whether or not the use of force is appropriate and what level of force is appropriate. So the suggestion from DPS was to kind of merge these two sections. So to essentially just take out that number 5 and have the two sections be one subdivision. So and I don't know if you would you like to discuss that? Would you like me to just go right ahead and talk about my perspective on that?  Folks good? Okay, sure. Okay, go ahead, Bryn, thank you. Okay, so what I have discussed with some members of the committee about my perspective about this proposal is that subdivision 4 and subdivision 5 are two pretty different directives. Subdivision 4 sort of is the clear articulation of what is the reasonable use of force and what a finder of facts should look at in determining whether the use of force was reasonable. So it really is the directives to, when I say the finder of fact, I mean it's kind of the analysis that's taken after the fact. So after the use of force has already taken place, a determination of whether or not that use of force was reasonable will look directly to subdivision B4 for guidance on whether or not that use of force was reasonable. And then subdivision B5 is pretty straightforward. It's a pretty straightforward directive to law enforcement. If law enforcement knows that a subject's conduct is the result of one of these different factors, then they have to use that information in determining whether or not to use force and in determining how much force is appropriate to use, if any. So because those two subdivisions are pretty separate directives, one is directly to law enforcement in making their determination. And the other is a directive to the finder of fact about whether or not the law enforcement's use of force was reasonable at all. I see combining them may create some confusion. It would create kind of a hybrid directive that would apply in two pretty different situations. So that's my perspective on combining those two subdivisions. That's it. Thank you. Questions or comments? Discussion, just committee members. Bob. I gotta unmute and do everything else here. So in the last section, we're in thank you for explanation here. So being reasonable and objective doesn't apply in that section of what you're saying. If the officer, after evaluating someone with a condition, aren't those two, they still don't come into play with whether or not they have to use force if at all? Yes, and I'm sorry if I didn't make that clear. This is kind of what, as you've been talking about these two sections, I think I testified earlier that subdivision before that reasonableness and analysis applies. It certainly applies to an officer's decision about whether or not to use force and it applies under those circumstances that are articulated in B5. So what I think my testimony now is that the two sections just offer a separate directive. B5 is a directive directly to law enforcement and B4 is how the analysis is conducted with respect to whether or not an officer's use of force is reasonable. However, that provision in B4 that says officers, whether or not there was a feasible alternative is a part of the analysis to whether or not their use of force was reasonable. That certainly applies to a situation that may arise under B5, which is an officer has to use information that they have in determining whether or not to use force. So then B5 is not a directive to the finder of fact then? So I think a finder of fact is going to look at all of these standards. The standards will be viewed as a whole by any finder of fact who's determining whether use of force is reasonable. But my testimony is really that the way that it's drafted, the way that B5 is drafted is a directive to law enforcement. So a finder of fact will use all of these standards and determining whether or not conduct is reasonable. But it's just a different, because it's directed directly to law enforcement, I just think it's a little bit different than the standard that's set out in B4, which is after the fact analysis. So one final question then. So are you saying in your opinion out that the merger of those two will not work? No, I don't, I'm not saying that it won't work. I think that it's my opinion that because they're two separate directives, because of the B4 really talks about the analysis that's done after the use of force takes place. And B5 is intended to direct law enforcement's decision during the interaction with the person. I think that it just makes it a little bit less clear. If those two directives are merged into one, it makes it a little bit less clear. I'm not, it's up to the, obviously it's a policy choice to whether or not you want to merge them into one. But it's my opinion that it won't be quite as clear because you're gonna have a hybrid directive, one to the finder of fact and one to law enforcement. One that's directing the analysis that takes place after the use of force and one that is a directive to law enforcement in making their decision during the interaction. Thank you. Martin. Yeah, so I mean, I'd be open to such a change if I saw that there was some benefit to it, but it seems rather than helping it potentially muddies the water a little bit. So I'm just trying to understand where the benefit is and I don't know if you have any suggestion on that Bryn or not or if that's just a rhetorical question of why we would want to put those two together when they're separate directives and when a court evaluates the directive in B5, they necessarily have to look at it through the lens that we've established in B4. I'm just not understanding the benefit of doing that. I don't know if that's really a question for you on that Bryn is just a statement. Unless you can tell us what the benefit is. Well, I don't wanna speak for DPS. I don't think that's my place to speak for them, but my understanding was that removing that barrier of the subdivision five and compressing them into one would make it clearer that reasonable alternatives being available applies also to B5. But as I've testified before, the analysis that's done after the fact has that feasible language in it, what alternatives were feasible. So any analysis of an officer's use of force is going to take that into account. Were there any feasible alternatives to the use of force? So if there weren't, then it's likely that that use of force is going to be judged to be reasonable. So it's my understanding that that's why DPS wants that change but it's been my testimony throughout that that analysis will apply even in situations that arise under B5. Right, and this was an alternative to ideally, first choice I think was to add to the extent feasible. And so this is another approach. Tom, I just have a follow-up real quick to what Bryn said, just to complete my thought on that, is that again, if there was a benefit to doing this, I wouldn't see a problem, but what I'm instead hearing is that it muddies things. It doesn't clarify things. It makes it a little bit less clear. Any event, I'm done. Okay, Ken and then Tom. I'm fair, and I stopped was before me. Okay, sorry, my mistake. Thank you, Tom. Thank you. So it just goes through my mind since Bryn brought up DPS and instead of, and maybe we can get it straight from them what their ideas is. That's the main thing I had to say, but it almost seems like sometime earlier in our testimony, and I don't remember how long ago, certainly not today, but that there was a suggestion that B4 and B5 hang together back then. And I guess I would, I guess as new light come to, as far as keeping them separate now as new light come forward. Something that wasn't understood back then, but it is now. But my main thing is I guess I would like to see somebody from DPS come in and explain their reasoning and maybe we can hear something that'll be that benefit that Martin is talking about. Yeah, thank you. I just reached out to the commissioner. It's Friday, so he may have to, I know there's a press conference coming up, but I asked if he or Jennifer Varsinger are watching right now. Ken. Tom just asked that where is DPS on this one, where we're dealing with such a, with this bill. And the other thing is in how I look at this, in how I look at this, if nothing else, all you're doing is combining four and five together with one word, which is further. So, I mean, from what I understand with this right now, if that's all that, if that's all that DPS is looking for, which I'm shocked, I'm interested in being, I'm changing my mind in support of this bill, if that's, if it's a simple change. If it's a simple change like that, I'm a lot more workable in doing something, but I'd really like to hear from DPS. Right, okay, so. Thank you. Yeah, thank you. So I've just asked Evan to please send a Zoom link to both the commissioner and to Jen Morrison. And I've just heard back from the commissioner and one of them will hop on. This is their proposal, you know, this email is their proposal. And as we have heard in testimony, they do support the bill even without this proposal, they do support the bill certainly feel like this bill is better than the no bill. So, coach, I thought I'd seen Martin's hand, but I don't, so coach, and then Martin, if you have something else, let's go to coach. I agree that it's always best to hear, you know, from the source for clarity's sake. That being said, part of the reason that this occurred was when we did get this position when Major Jonas presented the agency's position. And so getting more clarity, you know, from Jen, you know, like, makes sense. But in addition to that, the attorney Pepper and attorney Shear both made a statement around the judicial procedures and the judicial procedures and how certain languages interpreted within the statute. So, you know, before we, let's say, after we hear that, we might need to hear back from them as far as clarity around that again, if this has an effect on it, because the instructions that are given, you know, during the actual trials, if it gets to that point, do refer back to the language of the law. So that was something that I heard in testimony from the two of them. So that would be the only thing that I would need a little more back up from them as well. Great. Thank you. Well, Jen Morrison is here. Thank you so much for jumping on a short notice. We are looking at your email that some of us received on March 8th. And then I think others might have received it last night and where you proposed to merge four and five. And it would be helpful just to hear your thinking. Yeah, thank you so much. I think what Coach Christie just said really gets to the heart of it, which is the way it's written as Ledge Council Hair demonstrated, there's instructions in B4 to the trier fact. And I've heard her and Representative Lalonde offer testimony that B4 and B5 would have to be considered together. But what they're not, it would appear that they're trying to create a new never before had standard that is a standalone for judging the appropriateness of a police response to a person with a perceived or known impairment. And it is unclear that a trier of fact would rely only on B4 and not have a separate and distinct standard. So the officer may have been deemed to have responded in an objectively reasonable manner under the guidelines in B4, but now I'm examining it from B5. It would appear to be setting a second level of standard or hurdle, so to speak, that must be cleared. And that is in fact, not what we would support. So if all of the previous conversations that we have had with the author of S119 and the subsequent iterations, if everything we've heard is true, which is that B4 and B5 are meant to hang together and be considered together, then let's put them together so that it's unequivocal to a judge or anyone else interpreting this down the road that they are not two separate and distinct standards. So that's why we make this request. Thank you. Thank you. Questions? Martin. So, I mean, I guess again, this kind of leaves us in the situation where if we move this language from B5, which it is intended to create a statutory duty, it's a little bit different. I mean, it's definitely directing, it's directive towards law enforcement. I mean, certainly B4 is as well, but B4 is really looking after the fact and trying to analyze what has happened with any use of force. And I just continue to think that that's pretty clear. But I guess I'd also just, I would just comment that what is set forth in B5 is not a new standard. I mean, this is something that comes from case law, particularly the Chamberlain versus City of White Plains case, which I've talked about in the past out of the Second Circuit, which they adopted a rule that the use of force against an individual whom an officer knows or reasonably should know, and that even has the reasonably should know standard, which we've not put in here, is suffering from a mental illness should not be evaluated in the same way as use of force to apprehend a person suspected of a serious criminal wrongdoing. There are other cases that also talk about that the level of force that is constitutionally permissible in dealing with a mentally ill person difference both in degree and in kind from the use of force that would be justified against a person who has committed a crime or who poses a threat to the community. That's just, and there's a number of cases that first circuit, ninth circuit, sixth circuit you look at those particular, that particular situation. So in those cases, those courts still also apply the reason objective reasonableness standard as well. So I mean, they do have the objective, the standards that we have in before applying to situations that are similar to what we have set forth in B five. So I really, I'm trying to measure the dangers, and on the one hand, I don't want B five to be analyzed without the prism or the lens of the B four and the objective reasonableness, the feasibility, et cetera. On the other hand, I don't want to somehow water down what we're trying to do in B five by putting it in B four. That's kind of the balance I'm trying to figure out here. So that's all. Yeah, I saw, I didn't see it. I saw you said something. Jen, do you? Yes. I'll let you, yeah. You know, I want to, I want to point out, this is probably not the place, Madam Chair, to go into a deep analysis of the court cases that Representative Lalonde is presenting, but both of the cases he presents are about apprehension of a person who is mentally ill, not apprehension of a person who's committed a criminal act and may also be criminally ill. These are like taking a person into custody for their own welfare cases, which I would argue we've been operating at a higher standard than even what he articulated in Vermont, but we understand what the intent of B five is and we are not bucking the intent of B five. We are trying to not create a liability pitfall that you say you do not want to create, but we are not confident that somebody reading this three years down the road, five years down the road is not going to say there are two standards now. It's the totality of the circumstance, the objectively reasonableness of the totality of the circumstance, but there's also a second standard that we have to judge it against. So while I think we're actually all on the same page and Representative Lalonde and I have had many conversations, I think we're actually all on the same page. And if you carefully read the draft, the first draft that we have submitted, which will be much improved upon in the second draft, you'll see that we are following where you're laying down the breadcrumbs. We're going there, but please do not create a liability loophole that you don't intend. And that's what we see the separation of B four and B five as creating. Thank you. Can I just have a follow-up just real quick on that? And Madam Chair. Sure. I know that Ken and Kate, but just a follow-up. So, and maybe this is as much for Bryn just from what Jen Morrison just said. If there's any other kind of language that makes clear that we don't lose what's in B four. I mean, even if we take what is proposed and we merge B five with B four, I don't want to lose the fact that we really are, making clear on B five, that yeah, it is, it's slightly different standard, but it is looked at through the lens of B four. If you could ponder whether there's some way to thread that needle, because I agree with Jen Morrison that we're trying to get to the same place, but just disagreeing perhaps as far as how we get there. If you could ponder that, maybe you don't have something right off the top of your head, but all right, thank you. Is that for me? Yeah, yeah, yes. So, I guess one thing that makes sense for me to point out right now is that there are other directives in the standards. I feel like, because we've got such a narrow focus right now on B four and B five, you really have to read all the standards together for the whole thing to make sense. So there are other directives within the standards that are direct directives to law enforcement. So for example, C three law enforcement has to cease using deadly force as soon as the subject is under the officer's control. That's one example. There are other directives in here that are directly to law enforcement that are not merged with the reasonableness standard language. So, B four and B five are not the only instance of a place where there's a directive to the finder of fact and a directive to law enforcement. So I just thought it might make sense to mention that. And is it a matter of putting in B five language that very clearly brings in B four? And I guess a danger of doing that is do you have to do that with all the other drug? I guess that's my concern is that if you do it because a finder of fact will review every word very carefully. So if B five, the language of B five is placed in B four, will that change the way a court interprets C three for example, or another directive to law enforcement that isn't placed into the same subsection with the language to the finder of fact of how to judge a reasonable whether use of force was reasonable. Okay. So Jen, I see your hand up again. No, okay. Ken and then Kate. I'm sorry if I'm not getting the order correct. Go ahead, Ken. How about if I wait for DPS to respond before I speak, if you don't mind? Okay, well, let's Jen's hand is down. Let's go to Kate and then see where we get from there. Kate. Yeah, thanks. I mean, I think my comments sort of along the lines of maybe where Martin was headed in terms of trying to figure out some sort of compromise. I mean, I think my understanding of as we've been taking testimony of the statements of like these things hanging together was more in the context of like all of these things hanging together. They're all taken into consideration together. And so, I personally feel concerned about combining four and five. I think five is an effort to get at a very specific issue. But I do wonder if four is unique in a way to the other numbers in the sense that four seems to be laying out sort of a prism that we're assessing the behavior through to some degree, whether it's objectively reasonable and how we evaluate that. And so, my initial thought was can we keep four and five separate and sort of tag on a line that's like the five shall be considered in conjunction with the four. And I don't know if that's what you're referring to, Brynne, like if we do that, then we sort of have to do that for all of them, which sort of brings up a question of like, is there a way in the layout of the statute to have the four sort of go first or something, almost like use of force shall be considered through this prism. So like everything is considered through the lens of reasonableness. You know what I'm saying? I guess I'll stop there. Yeah, no, no, thank you. I know I'm sitting here thinking like, what if we just switched five and four? Yeah, can't be that simple, but yeah, thank you. Well, let's keep, let's hear from Ken and keep thinking. And then Jen, I'll turn back to you, Ken. Thank you. So I'm trying to, isn't five just a continuation of four with the word further added to it? Is that a question for me? Maybe, Jen? I don't know. Oh, yeah, Brent, yeah, sure. Sorry, I didn't know it was you. So before is the reasonableness analysis. That is the language. It is drawn very closely from existing case law. It's how a court will look at an officer's use of force to determine whether or not it's reasonable. That's the standard. I think moving it up to one would make sense because for example, in subsection C, which is the standard on the use of deadly force, C1 is the standard for the use of deadly force. So I do think it makes sense to shift B4 and put it first. That may make it clearer that this is the standard by which the conduct is going to be evaluated. I see B5 as a little different. I don't see it as a continuation of the same language because it's a directive to law enforcement. It isn't the directive to the court about how the analysis is going to be done. So that has been my testimony that I just don't think that it, I think that they're two separate directives. All of law enforcement conduct is going to be evaluated through the language in B4. So adding that one word makes all the difference in the world. What one word? Further. Nothing's changed between four and five on I think what I'm looking at that combined the two sections together if you insert a word further. That's where I'm struggling. It's like we're so close. I don't understand what the problem is. So Ken, you're looking again at the email. That's what you're looking at. Yes. Which is, I gotta be missing something because it's so obvious and so clear to me. Nothing we insert DPS by the looks has inserted one word to make this bill in my mind that most people I would think would be happy and nothing's been lost. Yeah, I appreciate that. Kate and then Martin. Yeah, I mean, I think this isn't necessarily gonna be a satisfactory response to you Ken, but I think from my perspective, one I'm hearing from Bryn that from a legal perspective it could create confusion. I'm also seeing an email that Martin forwarded from Will the White advocating that these remain separate statutes. And I think from my sort of separate sections and I think from my perspective, what is lost is there are a lot of people who have spent a lot of time advocating to ensure that people who have impairments of various sorts are well protected within the law in interactions with law enforcement. And I think the concern is that so that section means a lot to a lot of people. And I think that the concern is that bringing these together into one section and sort of burying it in this particular kind of way and adding other language on top of it dilutes the impact of that section of the law. And that does matter to a lot of people. And so I think that we're all trying to work to come to some resolution that makes sense. Again, I would advocate maybe moving before to one and maybe even adding a tagline if it feels legally responsible that's like all further sections of is it B are assessed through B1. There's something to that effect, but it allows the maintenance of the integrity of what is currently B5, which again, I think people feel very, many people feel very passionately about. Yeah. But again, we're talking a word. I mean, language isn't disappearing. Okay, Jen. So, Madam Chair, thank you. I agree completely with Representative Donnelly. There's a lot of people who feel very strongly about it and they, and the language in B5 is very, very important in terms of guidance to law enforcement as Ledge Council Hare said, et cetera. We do not for one minute want to weaken that or be dismissive of the power of that being, even as a standalone, what we're trying to avoid is inadvertently creating a new legal standard that has never existed. And we can talk about what the case law in the second circuit says, but this is not the place for it. Two things to bring to the committee. The first is, I don't think, I can't answer for my boss, but I don't believe we would object to moving B4 up to B1 the way Representative Donnelly constructed it as the overarching prism through which you see the rest of the directives to law enforcement. So that's the ultimate advice to the trier or finder of fact. And so we would have to see it and I'd obviously have to get legal approval, et cetera, but I don't think that we would object to that. That might be a very elegantly simple way to fix this. I would remind this committee that our original suggestion for B5 was to prepend it with four words to the extent feasible. And we took considerable time and testimony saying it was redundant and not necessary because it didn't change anything. We're here to say that it does change it because it creates the expectation for law enforcement without setting a legal standard that municipalities could then be, have to jump the hurdle of B4 as currently written and then also newly assessed under B5. So we're open to either option. I think what Representative Donnelly said makes a lot of sense. And I completely agree with not wanting to water down the impact of protecting the most vulnerable Vermonters. Okay, thank you, Tom. Thank you. I was gonna ask Jen basically the same thing what her opinion was on moving four to one. And I think there's still some question there on whether it would eliminate creating the new standard but I would certainly like to hear from somebody and I don't know who, if it does eliminate that new standard that DPS is worried about. So I'm gonna look to Bryn for your comment about that, respond to Tom's concern. And then I also after that would like to go back to the original proposal if feasible, if you could speak to that, okay. Go ahead, Bryn. Sure. Representative Burdick, could you repeat your point for me to respond to please? I'll try. Responding to an email. Yeah, no, Jen had just brought up supporting moving. I may not be the right word supporting, but moving four to one. And I guess the question is, does that eliminate the new standard that she's concerned with? I think that from my perspective, because you have directives to law enforcement throughout the standards to my mind, it's clear that there are directives to law enforcement and then there is the standard by which law enforcement's conduct will be judged, which is the reasonableness standard. I think moving the language in V4, which is the standard, but that the court will use when they're evaluating conduct. Moving that to be one makes sense from a holistic perspective, because that's what you do with subsection C, the use of deadly force language, right at C1 is the standard that all law enforcement use of deadly force will be judged by. So I think it makes sense to do the same thing with B, which is the use of force standards. And then what follows is directives to law enforcement, specific directives to law enforcement and other kind of broad brush language about how law enforcement officers should undertake the use of force with care and with respect and dignity. So in my mind, that would make it clearer overall. I think it's a great idea. Great. And Jen, a question for you. I think you said that you would have to run that by somebody in your office as far as that change goes. Representative Burt, yes. I'm texting with a commissioner. He's understandably on another commitment. So I'm trying to work with him on this. I think that we would agree with Brydon on this one that B1 is the frame up and everything else that comes after it is talking. I mean, it's giving, it's putting the values. It's putting the values and the boundaries on it. So I think we would be happier with that outcome than with leaving it how it is. So certainly we would see that as a favorable outcome of today's work session. So yeah, I guess that's all I want to say. I'm not the boss of anything anymore, so I can't really say yes or no. So that, and in a nutshell, I guess it would alleviate some of your concerns. It would. And the construct that has been described by both Representative Donnelly and alleged counsel here is exactly how we see it and how we've approached the policy making, which is there's the superordinate goal directive way we're gonna evaluate an officer's actions and everything else is like infusing the values and the boundaries. You're giving us the lane to run in and we're, I would say we go above and beyond, but we're gonna, it's codified here by doing it in that manner. I hope that answers your question. Yeah, that's great to hear. I was in the middle of a staycation when I was alerted that I needed to jump into action. So I wasn't. Sorry, but thank you. Coach. I would still think that it would make, once we do get to a reasonable conclusion, I heard Kate's original proposal, which was great. And we actually got concurrence. And then we got triple concurrence from Brent. So that being said, the actual prosecutorial discretion and intentional guidance to the court, I think it would behoove us to at least hear the thought from our prosecutors and possibly Judge Greerson, as far as just this makes sense from how the judge would issue guidance and how the prosecutors would interpret. Because ultimately they're the end of the line in that process because they have the discretion to determine what gets prosecuted. So it's just a, and it could probably just be a quick, ascertain on the part of the three. Okay, thank you. Martin. Yeah, maybe if they're readily available, but because we're really not changing any standards here, we're making, we're doing clarification. This is a clarification and I like where this is heading. I mean, yeah, if they're available, but I don't want to hold this up. No, no, I agree, Martin. It's just that other piece, because I heard mentioned, the what ifs and those what ifs are determined by basically those three entities. I mean, I think we're in agreement, but attorney White mentioned very clearly in her testimony about how particular language is. And I think we all agree. And it's at that point where determinations are made. And Bryn, attorney here had clarified that again today. So it wouldn't keep me from voting affirmatively, let's say, or if we do a straw poll, if we have agreement at this point, without all of those folks, but it would just be like the icing on the cake, so to speak. Thank you, coach Ken and then Tom. I was in a lot more agreement with the one word added than what I am now. I mean, I wasn't feeling quite so bad about this. Now I'm back really up in the air. I just, I don't, I don't get it, but if there's that much, if there's that much of a concern over one word, my mind is going okay to a lot of other concerns. So you guys kind of had me going with you and I'm not feeling it right now. Thanks. Thank you. Question for Bryn, I think. So where four is now, I think is part of the problem that only five will be run through four, but if we move it to, if we move four to one, everything will be looked at through four. I think, yes, I think that's the idea that because B four is the analysis, everything else is run through it and it's kind of plopped right in the middle there. So that's maybe where some of this kind of lack of clarity came from that it's plopped right in the middle and then there's directives to law enforcement on either side. So by putting it upfront at B one, the way that the standards are for the use of deadly force in C one, it may make it clearer that everything follows, runs through that analysis language that is now in B four. Which is the same standard for everything then. That's the standard, right? Right. And again, I know you already answered it. So where it is, not everything, potentially everything won't be run through four. That wasn't my testimony. My testimony. No, no. Because that language comes and hopefully this can answer some of the other questions that have been raised. Because that language tracks so closely, the B four language, the analysis language, because it tracks so closely with existing case law, a court is going to understand that that's, that is the analysis that it uses right there. That reasonableness analysis, reasonable feasible alternatives analysis, that's what it uses in deciding whether or not an officer's use of force was reasonable and pursuant to the standards. So it's been my testimony throughout that it's clear that that's the analysis. And because that's the analysis that's done after the fact, it's separate from the directives to law enforcement because those are directives that law enforcement will use in the moment. So, but however, that's not to say that I don't think it's a good idea to move it up. So there's consistency in the statute. Sure. And it flows more naturally. Yeah, good. Thank you. And I guess from here, I don't think Jen has, since she doesn't, she's not in control anymore, doesn't have the power. I'm looking forward to what her, the people in her office think of this, I guess. I can try and get commissioner to give a quick, I can tell you this, that affirmatively taking the action that representative Donnelly laid out and that Bryn has given us more information on, that is a better place for right now than as currently written. So we would feel that moving current before 2B1 is an improvement. I'm not in a position to say that would be DPS's final answer, but I'm not clear what kind of timeline you guys are looking at, but it would certainly be an improvement as written. Let me work on talking to my boss. Thank you, I appreciate that. Okay, see a bunch of hands. I'm gonna call on Bob because you haven't spoken in a bit. Start with Bob. Well, I'm glad to see that. You let me to speak, Maxi. I think that we're very close. I'm not totally happy with where the bill is and its totality, but I think we're very close upon agreement here. I think that representative Donnelly come up with an excellent idea and Jen appears to like it. And if she get the thumbs up from the commissioner due to everything else that we're dealing with here, I can probably support this in this existing form. So that's about all I got right now. Let's hope we get a thumbs up on it. Okay, well thank you. So I'm gonna hear, I see a few more hands which we can hear from. And then if Jen hasn't heard back from the commissioner, we could take a break, move on to something else. Let's see, coach and then Ken again, I'm sorry if I'm not doing the order correctly of when you put your hands up. And Tom had, your hands not up now, but it was up before. So when you go ahead coach and then Ken and then Tom. I just cleared my hand. I'll let it lie for the moment. Thank you. Thank you. And I'm just getting better at bringing my hand down. So I had taken it down. Okay, all right, Ken. I was looking for Bryn, but I think she just left. She's here. She's back. I'm here. Okay, so are you okay with that language? Was that, I don't know if I'm supposed to ask you that question, but I don't know how else to do it. I'm trying to understand, were you okay with that change? Will you specify what change you're referring to? I think it was Kate's move. Yeah, moving, yeah. Or moving. Moving the language in before to be one. Yes. I think that, I think that makes sense. Yes. I think it makes sense for the reasons I've articulated that it brings the standards in B5 in line with the standards and C in, sorry, brings the use of four standards in line with the use of deadly four standards. So therefore both sections would be set up the same, meaning the standard for the analysis would be right upfront and then the other directives would fall below. So yes, I don't think that it changes, I don't think it changes the impact of the standards. Okay. Thank you. And just for clarification, did I just hear representative Norris agree with that too? Bob and- I'm sorry. Did I just hear you, did I just, representative Norris, did I just hear you agree with that too? I think my statement was that the bill is not quite where I want it to be. However, if DPS gives us a thumb up to commissioner, I probably can support this. I think it was my exact awarding. And the commissioner is just signing on. And I feel like the lone ranger, but I'm used to it. Thanks. So commissioner, thank you so much for joining us. Good morning. Apologies for the lack of a tie. I was on an audio only press conference that I have to jump back to. And in a moment I have been listening with one ear, while I'm listening to Senator Sanders with the other ear. I appreciate all the continuing work. I think it's always helpful to see it on paper and see what the transition looks like. But I think this concept of moving B4 to B1 and having everything flow through that prism and from that, through that lens may be a good solution here. I do just want to flag. There's at least one other area, the hindsight discussion that you've had and opted not to include that we reserve the right to continue to chat with the Senate about that when it goes over. So I just want to be clear. I don't want to give you the impression that we're done potentially asking for small tweaks, but I think by and large, this is a solid, really solid piece of work to improve on the work from last year. And sorry for the fragmented thought process and I'm trying to pivot. It's a little bumpy. No, no, it's very, actually, it's very helpful. I appreciate it. And of course you have the right to go to the Senate. And I mean, that's the process here. We start the conversation here or they start there, whatever. And the conversation continues and might continue in a conference committee or might not, so no, absolutely. So can I do see your hand up? Do you have a question or was that from before? Not too much. Thank you. No, no, no, it's fine. So I do think it is always helpful to have it on paper. Bryn, how quickly would you be able to get us a new draft where you do that reordering? Because we can take an early lunch, we could take a quick break depending upon that and what works for you? I'm just checking some cross-references. So I probably just need a couple of minutes and then I can have a draft. So if you wanna take a brief break, that would be plenty of time for me. Okay, great. Why don't we take 15 minutes or so? Okay, let Bryn work. And then does that work for Jen and Commissioner to take a break? And then that way we can see what it looks like. That sounds great. I'll probably send my thoughts through Jen as I have to get back on the Marathon Press Conference for the next 90 minutes. I know, I can't wait to see that spigot. It's turning. That's great. Stick around, I'm gonna ask him a question. So, okay, so we'll...