So, do tell, what's been going on while I was away, part two

I've just had a very frightening experience.

First came the Supreme Court decision regarding eminent domain and the intent of the city of New London, Connecticut to seize a neighborhood of family homes to provide land for a private developer.

When I first posted about this back in October, after the Court agreed to take the case, I noted that

[t]he power of eminent domain, the power of government to take private land, is an ancient one, one of such long standing that even the most conservative, the most libertarian, do not challenge it in principle. But under the Fifth Amendment to the Constitution, it's limited in two ways by the closing phrase, "nor shall private property be taken for public use without just compensation."

"Just compensation" is usually understood to mean fair market value. Although there are frequent arguments as to what is fair value in a given case, the meaning of the phrase is well established. Traditionally, "public use" was understood equally clearly: The land must be designated for use by the public. It must be for a road, a school, a post office, some sort of public facility.

Over the past few decades, however, that definition has slipped considerably and now cash-strapped localities are increasingly using eminent domain to force landholders - often homeowners - to sell in order to turn the land over to private developers for profit-making projects. The cities claim that because the development will bring in more tax revenue than the homes, that constitutes a "public use."

So what's at issue in the New London case is the constitutional limits, if any, on the definition of "public use" a government body can use to benefit private corporations.

And the Court ruled, 5-4, that for practical purposes there are none. As long as cities can argue that some other use of your land, your home, will bring in more tax revenue, you have no recourse against its being seized for the gain of some big-bucks corporate developer waving extravagant promises and hefty campaign contributions.

In a blistering dissent, Sandra Day O'Conner, joined by William Rehnquist, Antonin Scalia, and Clarence Thomas, declared that the majority were handing "disproportionate influence and power" to the rich and powerful and that "the specter of condemnation [now] hangs over all property." Indeed, as I said in October, I think these vastly-expanded powers of eminent domain are

a perversion of the Constitution. The "takings" clause of the Fifth Amendment, as it is known, was designed to protect people from arbitrary government authority, not to enable that government to take land away from one private party only to give it to another.

And we're seeing it more and more. That is, more and more, we are seeing, again as I said in October,

cities ripping up established, stable neighborhoods in order to mortgage their economic futures to greed-driven corporations, selling their birthright, as it were, for a mess of pottage ... in pursuit of what too often turns out to be a mirage rather than a miracle.

And now it's all right and proper and decent and upstanding and legal and fair. Consider it a lesson re-learned: When it comes to corporate power, Democrats are just as ready to kowtow as the Republicans, so-called "liberals" as quick to genuflect as conservatives.

But then, on top of that, there was today's decision in the case of NCTA v. Brand X. It would seem at a quick glance to be one of those arcane cases about regulatory interpretations but it actually could have a dramatic effect on the future of the internet.

What was at issue was if cable companies (such as Comcast, TimeWarner, and so on) were to be regarded as "common carriers" under the 1996 Telecommunications Act. (Bored yet?) If they were, they would be required to allow other service providers to obtain access to their networks for the purpose of transmitting information - data, voice, video, and audio. Thus, for example, if you used Comcast cable for your internet access but still wanted to use Earthlink as your ISP, you could, because Comcast would have to allow Earthlink access to its lines on an equal basis with everyone else.

In 2002, the FCC ruled that cable systems, unlike telephone systems, are not common carriers. A federal circuit court overruled the Commission - but on Monday, the Supremes reversed and upheld that FCC ruling. In what can only be considered utterly bizarre "reasoning," the majority in the 6-3 decision found that because cable companies provide packages that include other services as well as internet access instead of selling "stand alone" internet access, they are not "offering" high-speed access! And, therefore, they are not providing "telecommunications service" under the meaning of the act and thus not subject to the regulations derived from it. That, as Scalia pointed out in an inelegant but effective dissent, is like saying that because a pet store has a policy of providing a leash with every puppy sold that it's actually not selling puppies.

After all is said and done, after all the regulatory cant has been translated, and the smoke of agency expertise blown away, it remains perfectly clear that someone who sells cable-modem service is "offering" telecommunications.

So what's the big deal? Well, under this ruling, if you, say, sign up with Comcast, it could, if it choose, legally block you from using any other ISP. More significantly, it also could control what information goes through its system since it is under no obligation to provide access. As an obvious example, as a fine, upstanding, moral member of the community, it could block access to the new .xxx domain intended for adult sites. Not, you understand, that it'd enable you to do it, it'd do it and you'd have no say. Or it could execute a contract with Fox News to be its "exclusive" news provider and suddenly all other news sources are blocked. It could decide that antiwar sites are taboo and poof, they're gone. The Supreme Court decision authorizes cable systems to exercise total control over what content can be accessed through their networks.

Some of that may seem far-fetched - although I don't think it is - but there are two other very real and very immediate dangers: One is that local networks established by libraries and schools in rural areas which now depend on cable systems for access beyond their own networks could be forced to pay usurious fees or be shut out entirely. Since cable companies tend to hate those networks because they inhibit "market penetration," that is a very real concern.

The other is that phone companies are now likely to petition the FCC for a similar exemption from common carrier requirements for their DSL systems. The majority of the Court made a point of declaring it expressed no opinion on that, but as Scalia pointed out, based on Monday's decision there really is no way to lodge a rational objection. Especially because Thomas, writing for the majority, ended with this:

The questions the Commission resolved in the order under review involve a "subject matter [that] is technical, complex, and dynamic." The Commission is in a far better position to address these questions than we are. Nothing in the Communications Act or the Administrative Procedure Act makes unlawful the Commission's use of its expert policy judgment to resolve these difficult questions.

Or, more simply, after all is said and done, we'll rubber stamp whatever the FCC comes up with.

The only silver lining in this is that this is a regulatory, statutory, matter - not a constitutional one. Which means it can be corrected with legislation. Perhaps the outcry over media deregulation last year that caught the FCC and Congress so much by surprise can be repeated. There are those in Congress - Rep. Ed Markey (D-MA,7), who blasted the decision as "both anti-consumer and anti-competition" is one - who will raise this. It's still possible to head off the worst effects.

Okay, apart from the actual decisions themselves, what was the frightening experience here? Just this, and it still makes me quake: I agreed with Antonin Scalia twice in a row! Oh, my word, I believe I may swoon.

Footnote, Just in Time Div.: In the head-scratching split decisions over public displays of the Ten Commandments, which together concluded that such displays are okay - sometimes - Scalia said that

a "dictatorship of a shifting Supreme Court majority" was denying the Ten Commandments' religious meaning. ...

"Nothing stands behind the court's assertion that governmental affirmation of the society's belief in God is unconstitutional except the court's own say-so," Scalia wrote.

That is, separation of church and state is not a constitutional principle, it's the result of a judicial "dictatorship."

Whew. Balance is restored.