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The FCC is beholden to Congress. When they said "we think the Internet is a Utility" and then said "we think the Internet isn't a utility" that's because Congress has not specifically said "the internet is a utility." Congress could declare Domino's Pizza a vital service necessary for communication and the FCC would be forced to regulate Domino's. However, if the FCC declared Domino's Pizza a vital service necessary for communication, Congress could say "lay off the crack pipe". They are not on equal footing. One is subservient to the other.