Logitech: Is a Teams Call Television?

It has been a while, which makes me unhappy. It also means that I have been very busy at work and a lot of what I have been doing is interesting. Some of it will end up getting explained here (eventually). In the meantime, I am squeezing in a few quick updates.

The first is about Logitech, Inc. v. United States in which the Court of International Trade decided the classification of regular webcams and better webcams used for video conferencing. The legal question comes down to whether they are television cameras of HTSUS Heading 8525 or apparatus for transmitting (or receiving) voice, images or other data for communication in a network (wired or wireless) of 8517.

I suspect we instinctively know the answer to this. 8517 is for network-connected communications devices for sending voice, images, and data. Meetings in Teams, Zoom, and other platforms are communications involving voice, images, and other data sent via the internet, which is a network. No matter how devoid of content (and joy) you may find a meeting, webcams are apparatus for capturing and transmitting that content.

Despite that intuitive sense, this is one of those classification issues in which the more I stare at the headings, the more certain I am that the answer is unclear. Here is the language of 8517 in full:

Telephone sets, including telephones for cellular networks or for other wireless networks; other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network), other than transmission or reception apparatus of heading 8443, 8525, 8527 or 8528 . . . . 

While this appears to me to clearly encompass webcams, it seems to also cover television cameras for broadcast and closed-circuit use. Cable television is, after all, a wired network of sorts. In these days of cable cutting, "television" is very likely to be streamed via the same network that is delivering your family reunion over Zoom. Why isn't a traditional television camera included in 8517? And, for that matter, what prevents a small, personal or corporate webcam from being a television camera of 8525?

First, the carve out at the end of 8517 for transmission or reception apparatus of 8525 does not fix this issue. To see why, we need to look at Heading 8525 in full:

Transmission apparatus for radio-broadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras, digital cameras and video camera recorders

This involves the legal impact of the semicolon. Transmission apparatus (with or without reception apparatus) are to the left of the semicolon. That is a distinct category from "television cameras," which are to the right of the semicolon. So, the carveout in 8517 does not get to television cameras and the headings are not mutually exclusive.

The Government's theory of the case is that the "other apparatus" of 8517 is limited to intermediary devices and not to the end terminals. Under that interpretation, "other apparatus" would include modems, data switches, and routers but not webcams and presumably not separately presented wired or Bluetooth microphones. Note that microphones of 8518 are not excluded from 8517 in the "other than" carve out. The Court rejected this notion on the entirely sound principle that the text does not say it.

Heading 8525 is, on the other hand, equally as open ended. A camera that can record and possibly broadcast moving images is a television camera. That covers everything from the jankiest security camera in a convenience store, to a webcam, to whatever CNN is using in the studio these days.

So how does this get resolved? The key lies in the text of 8517, which requires that the apparatus be "for communication in a wired or wireless network." That means that 8517 is a "use provision" and the webcams can only be classified there if they are "principally used" for communication in a wired or wireless network. "Television camera," on the other hand, is an eo nomine description of the article by name rather than use. 

If we conclude that the webcams could be properly classified in either heading, then the one with the more specific description will prevail. See GRI 3. That set the analytical path for the Court.

The next step is to determine whether the principal use of webcams is networked communications. To do that, the Court applied the "Carborundum factors." We have covered the Carborundum factors elsewhere ("Is it Soup Yet?" for example) and do not need to do so again. Check out the earlier post for details. Having applied each, the Court concluded that the Carborundum factors point toward the principal use of webcams being networked communication consistent with classification in 8517.

But what about 8525, you ask? Doesn't matter. As between 8525 and 8517, the requirement in 8517 that the device be used for communication via a network makes it more specific. Moreover, there is a legal principal that when the choice is between an eo nomine heading and a principal use heading, the use provision is generally considered to be the more specific. 

That allowed the Court to conclude that the webcams are classifiable in 8517, which is a win for the plaintiffs.

What, then, is left to be a TV camera of 8525? I suspect this is the problem the Government sees in this decision. One definition cited in the opinion is that a TV camera is a device that captures images and converts them to an electronic signal that is transmitted as a video image to a location outside the camera. We have already seen that a webcam does that. Moreover, the TV cameras, even those used in broadcast studios, are apparatus for the transmission of voice and images. That transmission may be over a network (even if that means a computer network not an old-school network of broadcast TV stations). The use of the studio TV camera would indicate that it should also be classified in 8517, putting a giant whole in the scope of 8525. 

Since words in a statute must be given some meaning, this cannot be the right result. On the other hand, the movement of television to an online phenomenon is changing what we mean by television. That is going to have to get resolved, which is why I think these Headings need to be reviewed and updated. 

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