NEC America, Inc. v. United States

• Citation: 8 CIT 184,596 F. Supp. 466
• Decision Date: 25 September 1984
• Docket Number: Court No. 83-3-00419.
• Parties: NEC AMERICA, INC., Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

596 F. Supp. 466

8 CIT 184

NEC AMERICA, INC., Plaintiff, v. The UNITED STATES, Defendant.

Court No. 83-3-00419.

United States Court of International Trade.

September 25, 1984.

Glad, White & Ferguson, Los Angeles, Cal. (Edward N. Glad, Los Angeles, Cal., at trial and on brief), for plaintiff.

Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, International Trade Office, Commercial Litigation Branch, New York City (Michael P. Maxwell, New York City, at trial and on brief), for defendant.

RE, Chief Judge:

The question presented in this case pertains to the proper classification, for customs duty purposes, of certain merchandise imported from Japan, and described on the customs invoice as "paging receivers."

The merchandise was classified by the Customs Service as "other solid-state (tubeless) radio receivers" under item 685.24 of the Tariff Schedules of the United States (TSUS). Consequently, the merchandise was assessed with duty at a rate of 8.8 per centum ad valorem.

Plaintiff protests this classification and contends that the merchandise is properly classifiable under item 685.70, TSUS, as "indicator panels and other sound or visual signalling apparatus" dutiable at a rate of 3.5 per centum ad valorem.

The pertinent statutory provisions of the tariff schedules are as follows:

Classified under:

Schedule 6, Part 5:

Radiotelegraphic and radiotelephonic transmission and reception apparatus; radiobroadcasting and television transmission and reception apparatus, and television cameras; record players, phonographs, tape recorders, dictation recording and transcribing machines, record changers, and tone arms; all of the foregoing, and any combination thereof, whether or not incorporating clocks or other timing apparatus, and parts thereof:

. . .

Radiotelegraphic and radiotelephonic transmission and reception apparatus; radiobroadcasting and reception apparatus, and parts thereof:

. . .

Other:

Solid-State (tubeless) radio receivers:

. . .

685.24 Other ........... 8.8% ad val.

Claimed under:

Schedule 6, Part 5:

685.70 Bells, sirens, indicator panels, burglar and fire alarms, and other sound or visual signalling apparatus, all of the foregoing which are electrical, and parts thereof ......................... 3.5% ad val.

The question presented is whether, within the meaning of the tariff provisions, the imported merchandise is dutiable as "other solid-state (tubeless) radio receivers," as classified by Customs, or as "indicator panels and other sound or visual signalling apparatus," as claimed by plaintiff. In order to decide this issue, the court must consider "whether the government's classification is correct, both independently and in comparison with the importer's alternative." Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed.Cir.1984), reh'g denied, No. 83-1108 (Fed.Cir. July 17, 1984).

After an examination of the merchandise, relevant case law, lexicographic definitions, and testimony of record, it is the determination of the court that the plaintiff has not overcome the presumption of correctness that attaches to the government's classification. 28 U.S.C. § 2639(a)(1) (1982); Jarvis Clark Co. v. United States, 733 F.2d 873, 876, reh'g denied, 739 F.2d 628 (Fed.Cir.1984); E.R. Hawthorne & Co. v. United States, 730 F.2d 1490, 1490 (Fed.Cir.1984).

The imported paging receivers are small electrical devices which are pre-set to a certain radio frequency channel. The pagers are battery-powered and have liquid crystal diode visual display (LCD) units with a ten digit capacity. They are activated by means of a 3-motion switch. When the switch is turned, the pager emits a tone and the liquid crystal display is illuminated to indicate that it is operational.

When reset, the pager is activated by a binary digital code transmitted over the pre-set radio channel. The radio signal is received by the pager, detected, and sent to a decoding device which activates the pager. When activated, the pager generates a tone and presents numerical information on a visual display LCD. The device converts binary information received through the radio frequency into digital information on the LCD. The pager can thereby receive information such as telephone numbers, stock quotations, or coded messages. It also has a memory capability which allows it to store and recall messages.

In attacking the Customs Service's classification of the paging receivers, it is plaintiff's principal contention that a radio receiver necessarily requires a tuner, that is, a device that enables the user to select more than one frequency, as well as an audio amplifier.

In order to determine whether the imported paging devices are radio receivers, the court must ascertain the precise meaning of "radio receivers," as used by Congress in the tariff schedules. The meaning of a tariff term "is presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary." Bentkamp v. United States, 40 CCPA 70, 78, C.A.D. 500 (1952), quoted with approval in Rohm & Haas Co. v. United States, 727 F.2d 1095, 1097 (Fed. Cir.1984). It is well established that the "common meaning of a tariff term is not a question of fact but a question of law." Schott Optical Glass, Inc. v. United States, 67 CCPA 32, 34, C.A.D. 1239, 612 F.2d 1283, 1285 (1979).

The tariff schedules are written in the language of commerce, and the terms used are to be given their commercial or common meaning. See Ameliotex, Inc. v. United States, 65 CCPA 22, 25, C.A.D. 1200, 565 F.2d 674, 677 (1977); Esco Mfg. Co. v. United States, 63 CCPA 71, 73, C.A.D. 1167, 530 F.2d 949, 951 (1976). Accordingly, the court must examine the lexicographic definitions, as well as the testimony given at trial, to determine whether the paging devices are radio receivers.

"Radio receiver," as used in item 685.24, is an eo nomine designation. In the absence of a demonstrated legislative intent to the contrary, an eo nomine designation of an article will include all forms of the article. See, e.g., Pistorino & Co., Inc. v. United States, 82 Cust.Ct. 168, 177, C.D. 4799 (1979), quoting Nootka Packing Co. v. United States, 22 CCPA 464, 470, T.D. 47464 (1935). It must also be remembered that the tariff statutes were enacted "not only for the present but also for the future, thereby embracing articles produced by technologies which may not have been employed or known to commerce at the time of the enactment ...." Corporacion Sublistatica, S.A. v. United States, 1 CIT 120, 126, 511 F.Supp. 805, 809 (1981); see also Davies Turner & Co. v. United States, 45 CCPA 39, 41, C.A.D. 669 (1957).

In the McGraw-Hill Encyclopedia of Science and Technology, Vol. 11 (5th ed. 1982), radio receiver is defined as "that part of a radio communication system which abstracts the desired information from the radio frequency (rf) energy collected by the antenna. All radio receivers must perform three basic functions: selectivity, amplification, and detection." Id. at 282.

The Institute of Electrical and Electronics Engineers Standard Dictionary of Electrical and Electronics Terms (2d ed. 1977) defines radio receiver as a "device for converting radio-frequency power into perceptible signals." Id. at 554.

Radio receiver is defined in Cooke & Markus, Electronics and Nucleonics Dictionary (1960) as a device "that converts radio waves into intelligible sound or other perceptible signals." Id. at 380.

At trial, plaintiff offered the testimony of Mr. Michael J. McLaughlin, its Manager of Pager Engineering. Mr. McLaughlin has been employed by the plaintiff for six years since his discharge from the Air Force, and holds a third-class F.C.C. license with broadcast endorsement. Although he has taken some courses in radio communications, Mr. McLaughlin does not have a college degree and is not a member of any professional organization in the radio communications industry. On cross-examination, he testified that a radio receiver is a device "which has external tunability, receives radio frequency, and detects them, and puts them through an audio amplifier to an audio output of some type." Although Mr. McLaughlin took issue with most of the lexicographic definitions read to him, he agreed that the paging receivers perform the functions of selection, amplification, and detection, as those terms are defined by the McGraw-Hill Encyclopedia of Science and Technology.

Mr. Gerald M. LeBow, owner of Technical Marketing Consultants, Inc., a company that provides technical marketing and sales information pertaining to the consumer and professional electronics industries, testified for the government. He has extensive and varied experience in the radio broadcasting industry and is a member of a number of professional or trade associations. In addition, he has written papers on radio technology and has a first-class radio telephone license and an amateur radio license from the F.C.C. Mr. LeBow defined radio receiver as a device which performs selection, amplification and detection, and stated that the pagers perform all three of these functions. He further testified that, in his opinion, the receiving pagers would be considered radio receivers within the radio communications industry.

Selectivity is defined as the ability to select a particular frequency from the many radio signals in the atmosphere. The paging devices that are the subject matter of this action perform this function. They are pre-set to receive a particular frequency.

Amplification is the process of increasing the radio frequency energy received by the antenna so that it can be used to generate a signal. Both parties admit that the display paging receivers perform this function.

Detection is the process whereby the radio frequency waves are converted into a signal that can be utilized. The paging units convert radio frequency input, in the form of a binary code, into output in the form of a...