Federal Communications Commission	FCC 23-100


STATEMENT OF
COMMISSIONER GEOFFREY STARKS

Re: 	Implementing the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination, GN Docket No. 22-69, Report and Order and Further Notice of Proposed Rulemaking.

If you’ve listened to music at all this past year, you’ve probably heard the song, “Fast Car.”  The song was first released a whopping 35 years ago by singer-songwriter Tracy Chapman, but was recently covered by country star Luke Combs.  Just last week, “Fast Car” won song of the year at the Country Music Association awards.  It is, of course, a beautiful song, but one of the most powerful messages—and a line that in particular stands out to me—comes in the refrain: “I had a feeling that I could be someone.”  And I truly believe that’s a message that we deliver here today – eradicating digital discrimination anywhere will empower individuals everywhere.  This is a proceeding that will impact generations of Americans, and work to ensure a more just and equitable future for tomorrow.  I’m proud to approve.    
***
	In the Infrastructure Investment and Jobs Act, a bipartisan Congress recognized that the trajectory of digital progress hasn’t always been even – a result that has held back our collective achievements as a Nation.  It focused on broadband access as an essential aspect of the remedy.  Congress found that “[a]ccess to affordable, reliable, high-speed broadband is essential to full participation in modern life in the United States,” 47 U.S.C. § 1701.
 and that the “persistent ‘digital divide’ in the United States is a barrier to the economic competitiveness of the United States and equitable distribution of essential public services, including health care and education.” Id.
  It continued, finding that “[t]he digital divide disproportionately affects communities of color, lower-income areas, and rural areas, and the benefits of broadband should be broadly enjoyed by all.” Id.
  
With those findings well established, Congress told the FCC to get to work.  It told us that “subscribers should benefit from equal access to broadband internet access service” which includes the opportunity to subscribe to an offered service of comparable speeds and other quality of service metrics, for comparable terms and service. 47 U.S.C. § 1754(a).
  To achieve that result, it directed us to prevent and eliminate digital discrimination of access.  
This is a large and complex item, so I highlight just a few of the many policy issues covered in this proceeding.  First, by including both disparate impact and intent in our definition of digital discrimination, we recognize the multifaceted nature of digital discrimination and take the right steps under the law to eliminate it.  Our disparate impact analysis is consistent with recent Supreme Court precedent.  In Texas Department of Housing and Community Affairs v. Inclusive Communities Project,  the Court in 2015 stated that a disparate impact legal standard is authorized where the statutory text is “results based” and the standard is “consistent with statutory purpose.” Texas Dep’t of Housing and Comm’ty Affairs v. Inclusive Communities Project, 576 U.S. 519, 533 (2015).
  I believe we have such authority under section 60506, and furthermore, that we hew closely to the criteria of Inclusive Communities by limiting potential liability to “where the challenge is shown to cause the disparity complained about” and “business owners are permitted to explain the valid interests served by the challenged policy or practice.” Id. at 541-542.
  
	The alternative—ignoring disparate impact—would have denied Congress’s directive to the agency.  It is simply implausible that we could prevent and eliminate digital discrimination by solely addressing intentional discrimination.
	Second, the rules we adopt today are not the end of our work here.  I support the item’s various proposals to help guide and support ISP decisionmakers as they work to implement our rules.  Annual reporting will illuminate the many competing factors that broadband providers weigh in providing service.  Our ISPs lead the world thanks to the investment in their networks, and that is about to be supercharged by BEAD and other federal programs.  Now is the ideal time to ensure transparency into how broadband providers utilize these federal dollars.  
Internal compliance is equally important.  ISP executives must understand the basis for deployment, maintenance, upgrade, and other decisions.  These are the individuals who can ensure that nondiscrimination of access is a core business goal, built in by design from day one, just like accessibility, privacy, and security.  This information will rightly not be public, but creating an internal process is vital to seeing through the goal of what so many stakeholders told me personally in meetings about this item: that they believe in the purpose of this proceeding and want it to succeed.
Third, I want to thank the Chairwoman for accepting my request to seek further comment on forming an Office of Civil Rights within the FCC.  The record is clear—advocates and industry alike think this is a strong idea, and I’m eager to develop a record on how best to structure and deploy such an Office, as many other agencies, from the Department of State to the Department of Homeland Security, have done.
Finally, I’m glad the draft now reflects my additional edits to create a safe harbor for ISPs and others that participate in and have adopted policies and procedures consistent with NTIA’s BEAD program and our Universal Service Fund programs.  These broadband programs are consistent with section 60506, and stating this loud and clear will support ISP participation in the many programs across the FCC and the Biden Administration that are helping to close the digital divide and reach unserved and underserved communities.  
***
As I've long said, it is our responsibility to ensure that the internet reaches all Americans everywhere.  Today, we fulfill our explicit Congressional directive to enact rules to prevent and eliminate digital discrimination of access.  And in doing so, we take a huge step toward fulfilling that mission.  
Thank you to the Chairwoman for her leadership, and the Commission staff for their dedicated work.  I’m proud to support this item.  

 

2