II 117th CONGRESS 2d Session S. 4865 IN THE SENATE OF THE UNITED STATES September 15, 2022 Mr. Luján (for himself, Mr. Merkley , Mr. Heinrich , Mr. Markey , Mr. Blumenthal , and Ms. Klobuchar ) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To establish the Foundation for Digital Equity, and for other purposes.

1. Short title This Act may be cited as the Digital Equity Foundation Act of 2022 . 2. Foundation for digital equity (a) Definitions In this section: (1) Assistant secretary The term Assistant Secretary means the Assistant Secretary of Commerce for Communications and Information. (2) Board The term Board means the Board of Directors described in subsection (d)(1). (3) Business incubator The term business incubator has the meaning given the term in section 3 of the Native American Business Incubators Program Act ( 25 U.S.C. 5802 ). (4) Commission The term Commission means the Federal Communications Commission. (5) Committee The term Committee means the Committee for the Establishment of the Foundation for Digital Equity established under subsection (b). (6) Community anchor institution; covered household; covered populations The terms community anchor institution , covered household , and covered populations have the meanings given those terms in section 60302 of the Digital Equity Act of 2021 ( 47 U.S.C. 1721 ). (7) Department The term Department means the Department of Commerce. (8) Digital equity The term digital equity means the condition in which individuals and communities have the information technology capacity that is needed for full participation in the society and economy of the United States. (9) Digital inclusion The term digital inclusion — (A) means the activities that are necessary to ensure that all individuals in the United States have access to, and the use of, affordable information and communication technologies, such as— (i) reliable fixed and wireless broadband; (ii) internet-enabled devices that meet the needs of the user for telehealth, remote work, remote schooling, or other purposes; and (iii) applications and online content designed to enable and encourage self-sufficiency, participation, and collaboration; and (B) includes— (i) obtaining access to digital literacy training; (ii) the provision of quality technical support; and (iii) obtaining basic awareness of measures to ensure online privacy and cybersecurity. (10) Digital literacy The term digital literacy means the skills associated with using technology to enable users to find, evaluate, organize, create, and communicate information. (11) Executive director The term Executive Director means the Executive Director of the Foundation described in subsection (f)(1). (12) Foundation The term Foundation means the Foundation for Digital Equity established under subsection (c). (13) Institution of higher education The term institution of higher education means— (A) an institution of higher education, as that term is defined in section 101 of the Higher Education Act of 1965 ( 20 U.S.C. 1001 ); or (B) a postsecondary vocational institution, as that term is defined in section 102(c) of the Higher Education Act of 1965 ( 20 U.S.C. 1002(c) ). (14) Minority-serving institution The term Minority-serving institution means an institution described in any of paragraphs (1) through (7) of section 371(a) of the Higher Education Act of 1965 ( 20 U.S.C. 1067q(a) ). (15) NTIA The term NTIA means the National Telecommunications and Information Administration. (16) Older individual The term older individual has the meaning given the term in section 101 of the Older Americans Act of 1965 ( 42 U.S.C. 3001 ). (17) Secretary The term Secretary means the Secretary of Commerce. (18) Small business investment company The term small business investment company has the meaning given the term in section 103 of the Small Business Investment Act of 1958 ( 15 U.S.C. 662 ). (19) Startup The term startup has the meaning given the term start-up business in section 362(f)(5)(C) of the Energy Policy and Conservation Act ( 42 U.S.C. 6322(f)(5)(C) ). (20) Tribal Broadband Connectivity Program The term Tribal Broadband Connectivity Program means the program established pursuant to section 905(c) of division N of the Consolidated Appropriations Act, 2021 ( 47 U.S.C. 1305 note). (b) Committee for the Establishment of the Foundation for Digital Equity (1) In general Not later than 90 days after the date of enactment of this Act, the Secretary shall establish the Committee for the Establishment of the Foundation for Digital Equity. (2) Members The Committee shall be composed of 5 members— (A) who shall be appointed by the officials described in subsection (d)(2)(B)(i); (B) each of whom shall be a voting member of the Committee; (C) not fewer than 3 of whom shall have broad and general experience in matters relating to digital equity, digital inclusion, or digital literacy; and (D) not less than 1 of whom shall have broad and general experience in working with private nonprofit organizations. (3) Functions The functions of the Committee are as follows: (A) To carry out such activities as may be necessary to incorporate the Foundation under the laws of a State, including by— (i) serving as the incorporators for the Foundation; and (ii) ensuring that the articles of incorporation for the Foundation require that the Foundation is operated in accordance with the requirements of this section. (B) To ensure that the Foundation qualifies for and (during the period in which the Committee is in existence) maintains the status described in subsection (c)(4). (C) To provide for the initial operation of the Foundation, including by ensuring that the Foundation has adequate facilities, equipment, and staff. (D) To appoint initial voting members of the Board who satisfy the requirements under subsection (d)(2)(C) and have such other qualifications as the Committee determines appropriate with respect to those members. (4) Chair The Committee shall, from among the members of the Committee, designate a member of the Committee to serve as Chair of the Committee. (5) Term (A) In general Each member of the Committee shall serve for the duration of the Committee. (B) Vacancies (i) No effect on authority A vacancy in the membership of the Committee shall not affect the authority of the Committee to carry out the functions of the Committee. (ii) Replacement If a member of the Committee does not serve for the duration of the Committee, the individual appointed to fill that vacancy shall be appointed by the ex officio members of the Board for the remainder of the applicable term. (6) Compensation A member of the Committee— (A) shall not receive compensation for service on the Committee; and (B) may be reimbursed for travel, subsistence, and other necessary expenses incurred in carrying out the functions of the Committee. (7) Termination The Committee shall— (A) complete the functions of the committee described in paragraph (3) not later than 180 days after the date on which the Secretary establishes the Committee under paragraph (1); and (B) terminate on the date that is 30 days after the date on which the Secretary determines that the Committee has completed the functions described in paragraph (3). (c) Establishment (1) In general Not later than 180 days after the date of enactment of this Act, the Secretary shall establish a nonprofit corporation to be known as the Foundation for Digital Equity . (2) Mission The mission of the Foundation shall be— (A) to supplement, but not supplant, the work of the NTIA and the Commission in promoting the benefits of technological development in the United States, and of high-capacity, affordable broadband connectivity in particular, for all users of telecommunications and information facilities; (B) to raise, leverage, or match funding from other entities, including philanthropic organizations, the private sector, and State and local governments, to promote digital literacy, digital inclusion, and digital equity for communities with low rates of adoption of broadband; (C) to develop programs and partnerships to— (i) spur greater rates of adoption of broadband among covered populations; (ii) collaborate with State, local, and Tribal governments, Minority-serving institutions, other anchor institutions, and stakeholders in the communications, education, business, and technology fields; (iii) publicize and incentivize the adoption of evidence-based programs; (iv) convene organizations and partnerships with related goals and interests to establish problem-solving processes; (v) strengthen and share best practices relating to— (I) projects promoting digital inclusion, digital literacy, and digital equity; and (II) regional economic development; (vi) support job creation and workforce development; and (vii) support the goals of the Tribal Broadband Connectivity Program; and (D) to promote equitable access to, and the adoption of, broadband technologies and digital applications that support accessibility, telehealth, distance learning, and online access to governmental benefits and services, including by preventing, detecting, and remedying digital discrimination. (3) Limitation The Foundation shall not be an agency or instrumentality of the Federal Government or any State or local government. (4) Tax-exempt status The Board shall take all necessary and appropriate steps to ensure that the Foundation is an organization that is described in section 501(c) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of that Code. (d) Board of directors (1) Establishment The Foundation shall be governed by a Board of Directors. (2) Composition (A) In general The Board shall be composed of the ex officio members described in subparagraph (B) and the appointed voting members described in subparagraph (C). (B) Ex officio members (i) Members The ex officio members of the Board shall be the following individuals (or designees of those individuals): (I) The Secretary. (II) The Assistant Secretary. (III) The Chairman of the Commission. (IV) The Secretary of the Treasury. (V) The Under Secretary of Agriculture for Rural Development. (ii) Nonvoting members The ex officio members of the Board shall be nonvoting members of the Board. (C) Appointed members (i) Representation The appointed members of the Board shall reflect a broad cross-section of stakeholders from academia, industry, nonprofit and civil rights organizations, community-based practitioners of efforts to promote digital inclusion, State or local governments, local school districts and libraries, other community anchor institutions, and the philanthropic community. (ii) Experience Each appointed member of the Board shall— (I) (aa) have experience promoting digital equity, digital inclusion, and digital literacy; (bb) have experience in the technology sector; (cc) have experience in the telecommunications and broadband sector; (dd) have direct experience working with covered populations; or (ee) have research experience in foundation operations; and (II) to the extent practicable, represent diverse regions, sectors, and the communities corresponding to the covered populations that are the focus of the activities of the Foundation. (3) Chair and vice chair (A) In general The Board shall designate, from among the appointed members of the Board— (i) an individual to serve as Chair of the Board; and (ii) an individual to serve as Vice Chair of the Board. (B) Terms The term of service of the Chair and Vice Chair of the Board shall end on the earlier of— (i) the date that is 3 years after the date on which the Chair or Vice Chair of the Board, as applicable, is designated for the position; and (ii) the last day of the term of service of the member, as determined under paragraph (4)(A), who is designated to be Chair or Vice Chair of the Board, as applicable. (C) Representation The Chair and Vice Chair of the Board— (i) shall not be representatives of the same area of subject matter expertise, or entity, as applicable, under paragraph (2)(C)(ii); and (ii) shall not be representatives of any area of subject matter expertise, or entity, as applicable, represented by the immediately preceding Chair and Vice Chair of the Board. (4) Terms and vacancies (A) Terms (i) In general The term of service of each appointed member of the Board shall be not more than 5 years. (ii) Initial appointed members Of the initial members of the Board appointed under subsection (b)(3)(D), 1/2 of the members shall serve for 4 years and 1/2 of the members shall serve for 5 years, as determined by the Chair of the Board. (B) Vacancies Any vacancy in the membership of the appointed members of the Board— (i) shall be filled by a majority vote of the appointed members of the Board in accordance with the bylaws of the Foundation; (ii) shall not affect the power of the remaining appointed members to execute the duties of the Board; and (iii) shall be filled by an individual selected by the Board. (5) Meetings; quorum (A) Initial meeting Not later than 60 days after the date on which all of the members of the Board have been appointed, the Secretary shall convene a meeting of the ex officio and appointed members of the Board to establish the bylaws of the Foundation in accordance with paragraph (7). (B) Quorum A majority of the appointed members of the Board shall constitute a quorum for purposes of conducting the business of the Board. (6) Duties The Board shall— (A) provide overall direction for the activities of the Foundation and establish priority activities; (B) provide guidance to the Executive Director such that the Executive Director may carry out any other necessary activities of the Foundation; (C) evaluate the performance of the Executive Director; and (D) actively solicit and accept funds, gifts, grants, devises, or bequests of real or personal property to the Foundation, including from private entities. (7) Bylaws (A) In general The bylaws established under paragraph (5)(A) may include— (i) policies for the selection of Board members and officers, employees, agents, and contractors of the Foundation; (ii) policies, including ethical standards, for— (I) the acceptance, solicitation, and disposition of donations and grants to the Foundation, including appropriate limits on the ability of donors to designate, by stipulation or restriction, the use or recipient of donated funds; and (II) the disposition of assets of the Foundation; (iii) policies that subject all employees, fellows, trainees, contractors, consultants, and other agents of the Foundation (including ex officio and appointed members of the Board) to conflict of interest standards; and (iv) the specific duties of the Executive Director. (B) Requirements The Board shall ensure that the bylaws of the Foundation and the activities carried out under those bylaws shall not— (i) reflect unfavorably on the ability of the Foundation to carry out activities in a fair and objective manner; or (ii) compromise, or appear to compromise, the integrity of any Federal agency or program, or any officer or employee employed by, or involved in, such an agency or program. (8) Compensation (A) In general No member of the Board shall receive compensation for serving as a member of the Board. (B) Reimbursement of certain expenses In accordance with the bylaws of the Foundation, members of the Board may be reimbursed for travel expenses, including per diem in lieu of subsistence, and other necessary expenses incurred in carrying out the duties of the Board. (e) Activities (1) Studies, competitions, and projects The Foundation may conduct and support studies, competitions, projects, and other activities that further the mission of the Foundation described in subsection (c)(2). (2) Grants (A) In general The Foundation may award grants for activities relating to digital equity, digital inclusion, or digital literacy. (B) Selection In selecting a recipient for a grant awarded under subparagraph (A), the Foundation— (i) shall make the selection based on the comparative merits of— (I) the proposed project of the potential recipient; (II) the impact of the project described in subclause (I) on promoting digital equity in local communities; and (III) the alignment of the project described in subclause (I) with— (aa) the overall goals of the Foundation relating to diversity on the basis of geography; (bb) the type of need addressed by the project; and (cc) other factors specified in the strategic plan and grant guidelines of the Foundation; and (ii) may consult with a potential recipient regarding the ability of the potential recipient to carry out various projects that would further the mission of the Foundation described in subsection (c)(2). (3) Accessing facilities and expertise The Foundation may work with the Secretary and the Commission— (A) to leverage the capabilities and facilities of the Department and the Commission; and (B) to assist with resources, including by providing information on assets of the Department and the Commission that may enable the promotion of digital equity, digital inclusion, or digital literacy. (4) Training and education The Foundation may support programs that provide training to researchers, scientists, and other relevant personnel at the Department, the Commission, and institutions of higher education to help promote digital equity, digital inclusion, and digital literacy. (5) Stakeholder engagement The Foundation shall convene, and may consult with, representatives from the Department, the Commission, institutions of higher education, the private sector, public interest stakeholders, and commercialization organizations to develop programs for the mission of the Foundation described in subsection (c)(2) and to advance the activities of the Foundation. (6) For-profit subsidiaries (A) In general The Foundation may establish 1 or more for-profit subsidiaries, including an impact investment fund— (i) to stimulate economic development activities relating to the mission of the Foundation described in subsection (c)(2); and (ii) to attract for-profit investment partners for digital equity, digital inclusion, and digital literacy activities. (B) Authorities of the for-profit subsidiary A for-profit subsidiary established under subparagraph (A) may— (i) enter into a partnership with an economic development corporation, including a business incubator or small business investment company; (ii) pay for the cost of building and administering a facility, including a business incubator, to support the activities of the Foundation described in this subsection; and (iii) provide funding to a startup. (7) Supplemental programs The Foundation may carry out supplemental programs— (A) to conduct and support forums, meetings, conferences, courses, and training workshops consistent with the mission of the Foundation described in subsection (c)(2); (B) to support and encourage the understanding and development of— (i) data collection that provides clarity with respect to inequities and community needs in order to promote digital equity, digital inclusion, and digital literacy; and (ii) policies that make regulation more effective and efficient by leveraging the data collection efforts described in clause (i) for the regulation of relevant technology sectors; (C) for writing, editing, printing, publishing, and selling books and other materials relating to efforts carried out by the Foundation, the Department, or the Commission; and (D) to conduct other activities to carry out and support the mission of the Foundation described in subsection (c)(2). (8) Evaluations The Foundation shall support the development of an evaluation methodology, to be used as part of any program supported by the Foundation, that shall— (A) consist of qualitative and quantitative metrics; (B) include periodic third-party evaluation of the programs and other activities of the Foundation; and (C) be made publicly available. (9) Communications The Foundation shall develop an expertise in communications to— (A) disseminate awareness of funding opportunities among community-based organizations that serve covered populations; and (B) promote the work of grant and fellowship recipients under paragraph (2), the successes of the Foundation, opportunities for partnership with the Foundation, and other activities. (10) Tribal Broadband Connectivity Grants The Foundation may support a grant made under the Tribal Broadband Connectivity Program if there are not adequate appropriations to support such a grant. (f) Administration (1) Executive director The Board shall appoint an Executive Director of the Foundation, who shall serve at the pleasure of the Board. (2) Administrative control No member of the Board, any officer or employee of the Foundation, any officer or employee of any program established by the Foundation, or any participant in a program established by the Foundation may exercise administrative control over any Federal employee. (3) Strategic plan Not later than 1 year after the date of enactment of this Act, the Foundation shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives a strategic plan that, incorporating the input of the community advisory committee convened under subsection (g)(1), contains— (A) a description of the initial focus areas of, and primary purposes for, each program, grant, or award opportunity that the Foundation plans to implement during the 2-year period beginning on the date on which the strategic plan is submitted; (B) a description of the efforts that the Foundation will take to be transparent in the processes of the Foundation, including processes relating to— (i) grant awards, including selection, review, and notification with respect to those awards; and (ii) communication of past, current, and future digital equity priorities; (C) a description of the financial goals and benchmarks of the Foundation for the 10-year period beginning on the date on which the report is submitted; and (D) a description of the efforts undertaken by the Foundation to ensure maximum complementarity and minimum redundancy with investments made by the Secretary and the Commission. (4) Recurring report Not later than 1 year after the date on which the Foundation is established, and once every 2 years thereafter, the Foundation shall make publicly available, and shall submit to the Committee on Commerce, Science, and Transportation of the Senate, the Committee on Energy and Commerce of the House of Representatives, and the Secretary, a report that, for the period covered by the report— (A) describes the activities of the Foundation and the progress of the Foundation in furthering the mission of the Foundation described in subsection (c)(2); (B) provides a specific accounting of the source and use of all funds made available to the Foundation to carry out the activities described in subparagraph (A) to ensure transparency in the alignment of the missions of the Department and the Commission; and (C) includes a summary of each evaluation regarding the decision to award a grant that is conducted under the requirements of subsection (e)(2)(B). (5) Evaluation by comptroller general Not later than 5 years after the date on which the Foundation is established, and once every 5 years thereafter, the Comptroller General of the United States shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives— (A) an evaluation of— (i) the extent to which the Foundation is achieving the mission of the Foundation; and (ii) the operation of the Foundation; and (B) any recommendations regarding how the Foundation may be improved. (6) Audits The Foundation shall— (A) provide for annual audits of the condition of the Foundation; and (B) make the audits, and all other records, documents, and papers of the Foundation, available to the Secretary and the Comptroller General of the United States for examination or audit. (7) Integrity (A) In general To ensure integrity in the operations of the Foundation, the Board shall develop and enforce procedures relating to standards of conduct, financial disclosure statements, conflicts of interest (including recusal and waiver rules), audits, and any other matters determined appropriate by the Board. (B) Financial conflicts of interest An individual who is an officer, employee, or member of the Board may not participate in deliberations by the Foundation regarding a matter that would directly or predictably affect any financial interest of— (i) the individual; (ii) a relative (as defined in section 109 of the Ethics in Government Act of 1978 (5 U.S.C. App.)) of that individual; or (iii) a business organization or other entity in which the individual has an interest, including an organization or other entity with which the individual is negotiating employment. (8) Intellectual property The Board shall adopt written standards to govern the ownership and licensing of any intellectual property rights— (A) developed by the Foundation through activities funded by a for-profit subsidiary established under subsection (e)(6); or (B) otherwise derived from the collaborative efforts of the Foundation. (9) Liability (A) In general The United States shall not be liable for any debt, default, act, or omission of— (i) the Foundation; or (ii) a Federal entity with respect to an agreement of that Federal entity with the Foundation. (B) Full faith and credit The full faith and credit of the United States shall not extend to any obligations of the Foundation. (10) Nonapplicability of faca The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Foundation. (g) Community advisory committee and report (1) Composition (A) In general Not later 90 days after the date on which the Foundation is established, the Board shall convene an advisory committee comprised of community members from covered populations and experts with experience providing essential products and service to covered populations. (B) Stakeholders represented To the extent practicable, the Board shall ensure that members appointed to the advisory committee under subparagraph (A) represent diverse regions, sectors, and communities, including not less than 1 member who is affiliated with, or has experience working with, all of the following: (i) Digital inclusion practitioners. (ii) Rural-focused programs. (iii) Members of Indigenous communities. (iv) Civil rights advocates. (v) Consumer advocates. (vi) Libraries. (vii) School systems or education technology specialists. (viii) Accessibility advocates or experts. (ix) Retired or older individuals. (x) Private sector internet service providers. (xi) Other relevant groups with experience addressing the access, adoption, and affordability of broadband services. (2) Annual report Not later than 2 years after the date on which the Foundation is established, and annually thereafter, the Board shall direct the community advisory committee convened under paragraph (1) to submit to the Board a written report that includes recommended changes, if any, to the Foundation and any other matter the Board considers appropriate. (3) Reimbursement for certain expenses In accordance with the bylaws of the Foundation, members of the community advisory committee convened under paragraph (1) may be reimbursed for travel expenses, including per diem in lieu of subsistence, and other necessary expenses incurred in carrying out the functions of that advisory committee. (h) Support services The Secretary shall provide facilities, utilities, and support services to the Foundation if the Secretary determines that the provision of those items is advantageous to the programs of the Department. (i) Anti-Deficiency act Section 1341(a)(1) of title 31, United States Code (commonly referred to as the Anti-Deficiency Act ), shall not apply to any Federal officer or employee carrying out any activity of the Foundation using funds of the Foundation. (j) No preemption of authority This section shall not preempt any authority or responsibility of the Secretary under any other provision of law. (k) Transfer funds The Foundation may transfer funds to the Department, which shall be subject to all applicable Federal limitations relating to federally funded research. (l) Authorization of appropriations There are authorized to be appropriated such sums as may be necessary— (1) to the Secretary for fiscal year 2023 to establish the Committee; (2) to the Foundation for fiscal year 2024 to carry out the activities of the Foundation; and (3) to the Foundation for fiscal year 2025, and each fiscal year thereafter, for administrative and operational costs.