There's also a lot to be said about how the SEC refuses to say one way or the other.
There are only a couple of different ways to interpret this fact.

1. They don't know.
2. They think it is but their arguments are weak.
3. They know it's not but they don't want to officially say that to retain power.

IMO it's obviously #3.
This has been the theme with the SEC and the entire crypto ecosystem.
They refuse to do their job because doing their job means losing power voluntarily.