Surely Congress did not intend to concern itself with such implementation details, and if a regulatory regime conceived in a world that was all circuit-switched is now ill-suited to the economics of a world that is mostly packet-switched, it's not the court's place to invent a way to exclude packet-switched networks from laws that don't care about that distinction.
(I'm also not at all convinced that internet backbone/backhaul congestion is sufficiently different from telephone switchboard congestion from a standpoint of market dynamics.)
The early days of the internet were defined by copious options for ISPs because telephone lines were required to be available under common carrier conditions.
The only reason this situation deteriorated is that broadband infrastructure was classified as for “information” and not “telecommunications”.