I think it is safe to say that broadband access has an impact on commerce, specifically commerce that passes though the digital conduit we know as the internet. Individuals and businesses use broadband access to acquire online content, deliver services, and communicate.
It would be a difficult argument to make that Congress’ constitutonal power to regulate commerce did not include the electronic commerce. There is a rational basis for concluding that broadband substantially effects interstate commerce. While broadband access is a sub-division of the internet; it provides that last mile connection between end-user and the information cloud, As an impacting factor on commerce, its regulation would come under the reach of Congress.
I suspect that Congress’ regulation of commerce was a left over from the mercantilist period that started to wind down in the late 18th century. Mercantilist policies were designed to protect the government and commercial class. By restraining imports and expanding exports, governments and their commercial classes hoped to expand their nations’ wealth.
Contrast the mercantilist approach with the laissez-faire and free market approach that would replace it. The free market approached emphasized trade based on specialization in production benefited importer and exporter. Economic welfare would, because of free trade and freer markets, be spread across a population outside of government and commercial interests.
But whether in the context of a mercantilist system or today’s preferred free market system, no government would regulate commerce in order to reduce it’s output and vibrancy. The Federal Communications Commission, as a creature of Congress, should, as an economic regulator, demonstrate that its Title II rules for broadband access would do just that. Simply repeating the phrase, “virtuous cycle” doesn’t equate to evidence of growth in the knowledge economy spawned by new rules. In 300-plus pages of support for less than ten pages of actual rules, the FCC offerred no evidence of rigorous quantitative support for growth in commerce as a result of its new rules.
The courts like using deference to an expert agency as their out for not expanding the overreach of government. It may be time to turn the tables on that judicial philosophy by requiring agencies show how their actions improve our economy.