While the eyes of much of the country were on Pennsylvania and Georgia last week, the tech community was focused on Cincinnati, where the US Court of Appeals for the Sixth Circuit heard arguments in the net neutrality case. As I’ve noted before, it’s unwise to predict a decision based on oral argument alone. But the arguments signaled that the court is far more interested in the merits of the case than most anticipated. This post discusses that shift, while acknowledging that events last Tuesday may ultimately overshadow those on Halloween.

Perhaps the biggest surprise was the three-judge panel’s seeming disinterest in the major questions doctrine. Earlier this year, a different Sixth Circuit panel stayed the Federal Communications Commission’s (FCC) rule, citing the likelihood that the doctrine prevented the FCC from classifying broadband as a Title II telecommunications service. Many commentators (including me) predicted this outcome, not just because common carrier regulation of broadband presents a “matter of great economic and political significance” better decided by Congress, but also because it avoids the complex, messy statutory questions the court would otherwise have to address in a post-Chevron deference world. But although Judges John K. Bush and Richard Allen Griffin asked some pointed questions about the major questions doctrine, the panel also expressed concern that the doctrine developed in response to Chevron may not apply now that Loper Bright overturned that decision. Judge Raymond M. Kethledge set the tone early when he said he’ll be “pretty impatient” until the parties get to the statutory arguments.

Those arguments require the court to parse the Telecommunications Act of 1996’s byzantine definitions of a Title II “telecommunications service” and a Title I “information service.” A telecommunications service means “the offering of telecommunications for a fee directly to the public.” Telecommunications, in turn, is defined as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” By comparison, an “information service” is “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.”

Everyone seemingly agrees that the transportation of packets to and from consumers constitutes “telecommunications.” The key question is whether broadband providers offer this transportation as a standalone telecommunications service, or whether it is bundled with other offerings that together would constitute an information service.

The challengers focused primarily on the phrase “offering of a capability for.” They argue that consumers purchase broadband to access the internet, in order to acquire, retrieve, utilize, or make available information from the web via telecommunications. While that information is typically provided by a third-party, the broadband service makes that access possible—meaning that consumers conceive of broadband as a service that “offers the capability” to get information online. The FCC responded that this confuses “the highway with the destination.” It noted that one could use the telephone—the quintessential Title II telecommunications service—to check movie times, but that doesn’t make the telephone an information service.

As a fallback, challengers also argued that broadband providers themselves bundle telecommunications with information services as part of delivering content to consumers. Specifically, broadband providers provide domain name system (DNS) lookup functions, which convert website addresses into the four-number IP addresses required to reach internet destinations. And they cache the delivery of packets to consumers to improve the quality of service. Both of these involve generating, acquiring, storing, or transforming information as part of the core service of delivering packets to consumers. The FCC responded that DNS lookup and caching are necessary for the management of a telecommunications service, which is an exception to the act’s definition of information service.

These nuanced and technical arguments illustrate the difficulties this case presents. The court is charged with fitting a 21st century technology into a 1990s statutory definition—written at a time when only 50 percent of Americans had internet access, and even that was mostly over dial-up. In a post-Chevron world, it falls on the courts to figure out how best to fit these square pegs into the Telecommunications Act’s round holes.

Unless Donald Trump relieves the court of that obligation. There’s little question that a Republican-led FCC will move to repeal the existing rules. The Sixth Circuit has no deadline for deciding the case, meaning it could hold the decision until the incoming administration clarifies its position. This might be the prudential choice. But part of me hopes the court chooses to decide the case and let society get off the net neutrality seesaw. Either way, the election offers Congress a chance to finally update the statute to clarify that broadband should not be saddled with outdated public utility regulations. Which means that perhaps the ultimate answer to net neutrality was found in Pennsylvania and Georgia after all.

Learn more: TikTok’s No Good, Very Bad Day in Court | Broadband Providers Should Not Be Liable for User Copyright Infringement | Telegram CEO Arrest and Brazil’s X Ban Raise Free Speech and Privacy Concerns | In a Blow to the FCC, Court Suggests Net Neutrality Is a Major Question That Congress Should Decide