Full opinion text
OPINION AND ORDER (1916 ANTIDUMPING ACT) EDWARD R. BECKER, District Judge. TABLE OF CONTENTS Page I. PRELIMINARY STATEMENT 1194 II. CONTENTIONS OF THE PARTIES 1198 A. The Defendants 1198 B. The Plaintiffs 1201 III. THE FACTUAL RECORD ON SUMMARY JUDGMENT A. Introduction 1202 B. Physical Similarities and Differences Between U. S. and Japanese Television Receivers 1204 C. Effect of the Physical Differences on Consumer Use and Marketability 1298 D. Physical Differences Between U. S. and Japanese Non-Television Consumer Electronic Products; Effects Thereof on Consumer Use and Marketability 1210 IV. ANALYSIS OF THE ANTIDUMPING ACT OF 1916 1211 A. Introduction 1211 B. The Statutory Text 1213 1. Similarities to Antitrust Statutes 1213 2. Incorporation of Customs Appraisement Terminology 1215 C. Antitrust and Tariff Law and Politics in the First Wilson Administration 1217 D. Legislative History of the Antidumping Act of 1916 1220 E. Relationship Between the Antidumping Act of 1916 and the Anti-dumping Act of 1921 1223 V. THE DEGREE OF SIMILARITY REQUIRED FOR PRODUCT COMPARISONS UNDER THE 1916 ANTIDUMPING ACT 1226 A. Introduction 1226 B. Applicability of the 1916 Act to Non-Identical Goods 1227 C. The Standard of “Like Grade and Quality” Under the Clayton Act and the Robinson-Patman Act 1231 D. The Standard of Similarity Under the Tariff Acts 1234 VI. STANDARDS FOR SUMMARY JUDGMENT; APPLICATION OF THE LEGAL STANDARDS OF COMPARABILITY TO THE FACTS 1239 VII. CERTIFICATION FOR INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 1292(b) 1243 I. PRELIMINARY STATEMENT Dumping is a phenomenon in international trade which has been defined as “price discrimination between purchasers in different national markets.” Generically, dumping is the sale of commodities in a foreign market at a price which is lower than the price or value of comparable commodities in the country of their origin. The issue before us arises in the context of the alleged dumping in the United States of television receivers, radios, phonographs and tape and cassette recorders manufactured in Japan. Plaintiffs Zenith Radio Corporation (“Zenith”) and National Union Electric Corporation (“NUE”) have alleged in their complaints that the Japanese defendants and their co-conspirators are and have been participants in a conspiracy which, by artificially lowering export prices, has for more than 20 years sought the methodical destruction of the United States domestic consumer electronic products industry. This litigation is described generally at pp. 1195-1198 of our opinion on subject matter jurisdiction, filed this day. Instead of rescribing that description here, we simply incorporate those pages by reference. Suffice it here to say that this is one of the most massive cases ever heard by the United States courts, and that in addition to numerous claims under the antitrust laws, plaintiffs seek treble damages for alleged violations of the Antidumping Act of 1916, one of several dumping statutes enacted by the Congress. This opinion addresses the separate motions of several groups of defendants for summary judgment on the plaintiffs’ 1916 Antidumping Act claims. The motions addressed to the 1916 Act claims have been advanced as part of wider motions seeking summary judgment on other discrete portions of the litigation as well. Motions which deal with the 1916 Act claims have been filed by Mitsubishi Electric Corporation and Melco Sales, Inc.; by Sears, Roebuck and Co.; by Matsushita Electric Industrial Co., Ltd., and affiliated defendants; and by Hitachi, Ltd., Toshiba Corporation, Sanyo Electric Co. and their affiliated defendants. The numerous summary judgment motions concerning this and other issues are catalogued in our opinion on subject matter jurisdiction. As is explained there, we intend to decide the pending motions issue by issue, writing separate opinions on each issue if necessary. Accordingly, this opinion disposes of the arguments based on the 1916 Antidumping Act made in all of the motions listed above, and does not reach the other issues which are comprehended in these motions. In order to decide the defendants’ motions for summary judgment on plaintiffs’ dumping claims, we are required to interpret the 1916 Act and to apply it to the undisputed facts before us. Although television sets and other consumer electronic products manufactured for sale and use in the United States, as a class, and consumer electronic products manufactured for sale and use in Japan, as a class, look essentially the same and serve precisely the same functions for the listener or viewer, U. S. and Japanese consumer electronic products are adapted to the technical conventions of television and FM broadcasting and of the electrical power systems which are different in the two countries. While the standards for encoding visual and aural information on a radio wave are identical in the television and FM systems of the U. S. and Japan, the frequencies allocated to TV and FM broadcasts are different. As a result, television and FM receivers manufactured for use in Japan cannot receive many broadcasts in the U. S. and vice versa. In addition, the Japanese electrical power system uses 100 volts and frequencies of either 50 or 60 Hertz (“Hz”), while the U. S. system is at 120 volts and only 60 Hz. Because of this difference, Japanese television receivers used in the U. S. would be in serious danger of failing because of overheating, Japanese phonographs and tape recorders of a certain design would run at the wrong speed, and the audio output of radios, phonographs, and tape recorders would include an objectionable hum. These facts, which are undisputed, form the background for the task before us in this opinion—i. e., the first construction in the 64 years since the enactment of the 1916 Act of its core provisions. More specifically, we must decide what standards the Act imposes for the comparability of the United States and foreign products required in order for an import transaction to be subject to the prohibition of the 1916 Act. While the contentions of the parties will be set forth in detail infra, suffice it to say for purposes of this preliminary statement that the defendants, arguing from the text of the 1916 Act which uses the referent “such articles,” contend that goods do not meet the comparability standards of the Act unless they are identical which concededly the goods in question are not. Alternatively, defendants argue that the “like grade and quality” standard of § 2 of the Clayton Act, which preceded the 1916 Act, is applicable, a standard which defendants assert, plaintiffs have not met. Plaintiffs, on the other hand, vigorously protest over-literal constructions and assert that television sets manufactured for use in the United States and those manufactured for use in Japan are both television sets serving precisely the same function, and that with the exception of adaptation to the technical conventions of the two countries, they are essentially the same. Just as the defendants contend that the 1916 Act does not apply, the plaintiffs vigorously assert that it does. The precise question before us is whether TV sets and other consumer electronic products manufactured for sale and use in the United States, as a class, and consumer electronic products manufactured for sale and use in Japan, as a class, are sufficiently similar to be comparable for purposes of the 1916 Act even though: (1) the two classes of products are adapted to the different technical conventions of the two countries; (2) accordingly, the products have different tuners, power transformers, and electric motors; and (8) as a result, the products differ in consumer use and marketability and are not commercially interchangeable. As will be seen during the course of our lengthy discussion, we answer this question in the negative, holding that the two classes of products are not comparable under the 1916 Act. Although the Antidumping Act of 1916 has been in force for nearly 64 years, it has rarely been used and therefore has rarely been construed. In order to resolve the issue before us we find it necessary to examine the legislative history of the Act, and its background in contemporary law and politics, in far greater depth than has heretofore been recorded. Our detailed analysis of the 1916 Act is contained in Part IV of this opinion. We also have occasion to compare the 1916 Act, which creates a private right of action for treble damages and provides criminal penalties for dumping, with the Antidumping Act of 1921 (“the 1921 Act” or “the 1921 Antidumping Act”), which established an administrative system for the assessment of special customs duties for dumping. The 1921 Antidumping Act has very recently been repealed but the system of dumping duties which it created remains essentially intact in its successor legislation. The 1921 Antidumping Act is involved in this litigation because the plaintiffs seek to introduce into evidence the fact that the Treasury Department, which formerly administered the 1921 Act, has assessed dumping duties against many of the defendants for importing television receivers from Japan at prices lower than those at which comparable models have been sold in Japan. As is set forth more fully in a subsequent part of this opinion, we hold that the administrative findings of dumping under the 1921 Act are not pertinent to the instant claims of privately actionable dumping under the 1916 Act because the 1921 Act and its successor legislation grant the administering authority broad discretion to determine whether products sold in the two countries are comparable, whereas litigants under the 1916 Act are not clothed with the same discretion. As will be seen, our examination of the legislative history of the 1916 Act reveals that it was intended to complement the antitrust laws by imposing on importers substantially the same legal strictures relating to price discrimination as those which had already been imposed on domestic businesses by the Clayton Antitrust Act of 1914. Conforming to the will of Congress, we will hold that the 1916 Act cannot be applied to articles which are not sufficiently similar to be comparable for purposes of domestic price discrimination law. Hence, to give rise to a violation of the 1916 Act, the products sold in the United States and the products sold in the foreign country must be of “like grade and quality” as that phrase is used in § 2 of the Clayton Act as amended by the Robinson-Patman Act, 15 U.S.y. § 13. Case law under the RobinsonPatman Act makes it clear that physically different articles are not of “like grade and quality” if the differences affect consumer use and preference or marketability. Although the 1916 Act was intended as a companion to the antitrust laws, Congress borrowed language from contemporary customs appraisement law to refer to the price of goods in the foreign country. As we shall explain, by using the term “actual market value or wholesale price,” Congress incorporated by reference the valuation provisions of the Tariff Act of 1913 (“the 1913 Act” or “the 1913 Tariff Act”). Under that statute, and under both earlier and subsequent practice, the value of imported merchandise could be determined by reference to sales of “similar” merchandise in the country of origin. The standard employed to decide whether merchandise was sufficiently “similar” was strict, however: “similar” merchandise had to be commercially interchangeable with the articles under appraisement. Because of the use of language taken from the 1913 Tariff Act in the 1916 Antidumping Act, we will hold that there is no violation of the 1916 Act unless the standards of similarity of customs appraisement law are met. Both of the legal standards which we find applicable speak in terms of consumer use, consumer preference, and marketability. The standard derived from customs appraisement law is the more rigorous of the two: it requires commercial interchangeability. While we recognize that the relevant differences between consumer electronic products manufactured for use in the U. S., as a class, and those manufactured for use in Japan, as a class, are only adaptations to the differing technical conventions of the two countries, their impact on consumer use, consumer preference, and marketability is clear: a product manufactured for sale in one nation is of no practical use to a consumer in the other nation. Consequently, the products do not meet the standards which are applicable to product comparisons under the 1916 Antidumping Act, and summary judgment on the 1916 Act claims must be granted. The foregoing is a capsule summary of the ultimate conclusions of this opinion. In the course of its development we have many tasks. Our first task is to state the parties’ contentions, both legal and factual. Next we will make “findings” of the facts as to which no genuine issue exists. In the next following portion of the opinion, we review the 1916 Antidumping Act in general terms, analyzing its language, its legislative history, and its background in the law and politics of the first administration of Woodrow Wilson. After this review, we address our attention to the particular legal issues raised by the instant motions. In the penultimate part of this opinion, we discuss the standards controlling the grant of summary judgment and demonstrate that summary judgment is required here. Finally, we explain our reasons for certifying our order for immediate interlocutory appeal under 28 U.S.C. § 1292(b). II. CONTENTIONS OF THE PARTIES A. The Defendants The principal argument which defendants have advanced in support of their motions for summary judgment on plaintiffs’ dumping claims hinges on the meaning of the word “such.” The 1916 Act mandates that the price at which imported articles are sold within the United States be compared with “the actual market value or wholesale price of such articles” in a foreign country, after certain expenses are added to the foreign value. 15 U.S.C. § 72 (emphasis added). From this juxtaposition alone, the defendants contend that the 1916 Act contemplates a comparison of the price of identical articles sold in the U. S. and in the relevant foreign market. This simplistic argument is, however, not strongly pressed; rather, the defendants rely upon a line of cases in the customs courts, which interpret the word “such” in a related context. Unlike the 1916 Act, which uses the lone term “such” in the phrase we have just quoted, many other customs appraisement statutes use the language “such or similar” to specify which articles may be considered by the customs appraiser in his determination of value. In construing the phrase “such or similar,” the customs courts have held as follows: (1) the word “such” means identical; (2) when applying an appraisement statute which includes that phrase, an appraiser should look first to sales of identical merchandise, and should only look to sales of similar merchandise if identical merchandise is not sold in the relevant market; and (3) whether or not merchandise is “similar” within the meaning of customs appraisement statutes is to be determined by the application of several criteria, including commercial interchangeability of the putatively “similar” articles. E. g., United States v. Irving Massin & Bros., 16 Ct.Cust. App. 19 (1928); United States v. Johnson Co., 9 Ct.Cust.App. 258 (1919). Relying on this line of customs decisions, defendants argue that the word “such,” standing alone in the context quoted in the 1916 Antidumping Act, should be interpreted to mean “identical.” They contend that by using the single word “such” in the 1916 Act, where it might have used the disjunction “such or similar,” Congress must have intended to limit the application of the Act to situations in which identical merchandise is sold in the United States and in the relevant foreign market. Accordingly, they argue that the 1916 Act is inapplicable in this litigation unless the consumer electronic products sold in the United States and in Japan are identical. To establish the factual predicate for their summary judgment motions, defendants have submitted numerous affidavits and have taken the depositions of several of plaintiffs’ expert witnesses. In a subsequent part of this opinion, we state the material facts as to which there is no genuine issue, and there is no reason to duplicate that exposition here. For our present purposes, it is sufficient to note that defendants’ affidavits are advanced to show that there are specific physical differences between consumer electronic products manufactured for use in the United States, as a class, and those manufactured for use in Japan, as a class. These differences arise from the different technical conventions of television and FM radio broadcasting, and of the transmission of electrical power, in the two countries. Since the evidence produced by the defendants tends to show specific differences between U. S. and Japanese products, it tends to demonstrate, a fortiori, that in defendants’ contention those products are not identical. The defendants have also advanced several other arguments concerning the comparability of U. S. and Japanese consumer electronic products under the 1916 Antidumping Act. Noting that the 1916 Act had an underlying antitrust purpose, they posit that the Clayton Antitrust Act of 1914, which banned price discrimination but applied only to domestic transactions, exempted from its proscription any price discrimination made “on account of differences in the grade [or] quality” of the articles sold. They submit that because of this language the Clayton Act, like the 1916 Antidumping Act, required physical identity of the products sought to be compared on a charge of domestic price discrimination. They note also that Section 2 of the Clayton Act, as amended by the Robinson-Patman Act of 1936, which currently governs domestic price discrimination, applies only to sales of commodities which are of “like grade and quality.” 15 U.S.C. § 13(a). They accordingly argue that the 1916 Act must be interpreted in light of § 2 of the Clayton Act, and that because of the undisputed physical differences between U. S. and Japanese consumer electronic products, which affect their marketability, they are not of “like grade and quality.” The defendants’ argument based on the Robinson-Patman Act was originally set forth in no more than two pages of their memoranda supporting their motions, but the argument has assumed increased prominence in their latest submission dated March 7, 1980. Alternatively, the defendants contend that U. S. and Japanese consumer electronic products are not even “similar,” as that term is construed in post-1916 customs appraisement law. As we have noted, the customs courts have held that “similar” articles must be, inter alia, commercially interchangeable. Defendants point in particular to two decisions. In United States v. Eggen, 55 C.C.P.A. 95 (1968), the Court of Customs and Patent Appeals held that ball bearings in metric sizes were not “similar” to ball bearings in inch sizes, because the two were not commercially interchangeable. In United States v. Ford Motor Company, 46 Cust.Ct. 735 (1961), the Customs Court held that right-hand-drive automobiles manufactured for use in Ireland were not “similar” to left-hand-drive automobiles manufactured for use in the United States, again because the two types of automobiles were not commercially interchangeable. The argument based on construction of the word “similar” in customs appraisement law was originally set forth in a brief footnote in a Sears Roebuck memorandum, but like the Robinson-Patman argument it has assumed increased prominence in defendants’ latest submission. In response to our request, the parties submitted supplemental memoranda on the legislative, political, and social history of the 1916 Antidumping Act. In their joint memorandum, the defendants argue that “the 1916 Act was firmly rooted in antitrust principles and was passed by a Congress whose majority was fervently anti-protectionist.” They contend that the Act should therefore be construed in harmony with the antitrust laws to foster, and not to inhibit, vigorous price competition in United States markets. The defendants have also argued that the 1916 Act includes criminal penalties, and was viewed by Congress primarily as a criminal provision. Although the criminal penalties created by the Act are not involved in this civil litigation, defendants point out that whatever construction we give the statute might be appliéd in future criminal cases, and therefore argue that we should construe the statute strictly against those who seek to invoke its provisions. See FCC v. American Broadcasting Co., 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699 (1954). While we do not address this argument specifically in our discussion, we are mindful that the 1916 Act is a criminal as well as a civil statute. The criminal side of the statute does not affect our reasoning, however, for we are convinced that we would interpret the Act as we do in this opinion even if this were a criminal prosecution under the 1916 Antidumping Act. The defendants have also advanced several arguments concerning the interpretation of the 1916 Act with respect to issues besides the comparability of U. S. and Japanese products. These other arguments concern the interpretation of two other key phrases in the statute: the predatory intent clause, and the language making the statutory prohibition applicable to “any person importing or assisting in importing.” See n. 4, supra (quoting the Act in full). For example, some defendants have argued that in order to show predatory intent, plaintiffs must show that each defendant sold its products at a price below its marginal cost, citing, e. g., Areeda & Turner, Predatory Pricing and Related Practices Under Section 2 of the Sherman Act, 88 Harv.L.Rev. 697 (1975), or that the defendant has a sizable share of the market. Some defendants have argued that they have neither imported nor assisted in importing products from Japan to the United States because their sales are made only in Japan. In addition, several defendants have argued that the Act is inapplicable to them because they sell consumer electronic products only in the United States, and the Act should be applied only to companies which themselves sell products in both markets. With a single exception, we need not, hence we do not reach any of these arguments. B. The Plaintiffs The plaintiffs argue that defendants’ proposed construction of the 1916 Antidumping Act “is nothing more than an evisceration of the Act and a vehicle for frustrating the clear purposes of Congress.” They point out that the customs decisions construing the phrase “such or similar” are all interpretations of other statutes, not of the 1916 Antidumping Act. They argue that the narrow construction of the term “such” in those decisions was necessary there to avoid rendering that word redundant, but is not necessary in the interpretation of the 1916 Act. They argue that a restrictive reading of the Act would be at odds with its remedial purpose, and that Congress intended to broadly proscribe unfair methods of competition in international trade. Noting, as do defendants, that the Act was primarily intended to complement the antitrust laws, plaintiffs contend that private antitrust plaintiffs should be favored and not hindered in their efforts to enforce the antitrust laws, and that this principle should apply equally to plaintiffs seeking damages under the 1916 Antidumping Act. They characterize defendants’ reading of the Act as “hypertechnical,” and contend that the Act should be read to permit the comparison of products in broad, common-sense generic categories. Plaintiffs here focus, needless to say, on the obvious functional similarity between Japanese TV sets and other products, as used by consumers in Japan, and U. S. TV sets and other products, as used by consumers in the U. S. Plaintiffs also observed that the ordinary meaning of the word “such” is not so narrow as the construction for which defendants contend, and produce many pages of dictionary definitions to support their argument. They next argue that the expression “actual market value or wholesale price of such articles” means the actual market value or wholesale price of the very articles imported into the United States, and that those articles can have an actual market value in Japan even though identical articles are not sold in Japan. This contention is supported by an extensive review of customs appraisement law, including in particular ¶ R of the Tariff Act of 1913, which defined “actual market value or wholesale price” and was in force when the 1916 Anti-dumping Act was passed. Plaintiffs point out that ¶ R permitted customs appraisers to refer to sales of similar but not identical merchandise to determine the value of goods undergoing appraisement, and argue that the same rule should be applied in the interpretation of the 1916 Antidumping Act. Plaintiffs have not responded to defendants’ arguments based on the Robinson-Patman Act and on post-1916 customs interpretations of the term “similar.” With respect to the facts, plaintiffs admit that most of the specific differences between U. S. and Japanese consumer electronic products which defendants have identified do exist. Plaintiffs’ affiant and expert witnesses aver, however, that these differences are insignificant technically and do not substantially affect the cost of manufacturing U.S. and Japanese products. Plaintiffs argue that because the differences are insignificant from a technical or cost standpoint, the differences do not affect the comparability of U. S. and Japanese products. In their memorandum on the legislative, political, and social history of the 1916 Act, plaintiffs characterize the Act as an “economic statute” which has both protectionist and antitrust aspects. They argue that the Act was the product of a political compromise between the Democratic majority in Congress, which opposed tariff protectionism, and the Republican minority, which was avowedly protectionist. Any protectionist facet of the statute would, of course, help plaintiffs’ cause. Having completed our review of the parties’ contentions, we turn next to an examination of the factual record before us on the motions for summary judgment. III. THE FACTUAL RECORD ON SUMMARY JUDGMENT A. Introduction In deciding the instant motions addressed to plaintiffs’ 1916 Act claims, we have consulted all pertinent evidentiary sources. These include the numerous affidavits filed in support of and opposition to the motions, testimony taken in depositions, plaintiffs’ expert witness reports on product comparisons, the model-by-model matchups submitted by the plaintiffs, and the relevant portions of the plaintiffs’ Final Pretrial Statement. As will be seen, these sources reveal that the facts which are material to the instant motions are not in dispute, although of course the parties disagree vigorously on the significance of the undisputed facts. The facts which we relate in the following pages are, without exception, admitted by the plaintiffs, and there is accordingly not even the slightest doubt as to their veracity. Before relating these facts it is important that we discuss their evidentiary foundation. The various defendants have submitted the affidavits of six persons to support their motions on the 1916 Act claims: Masami Itoga (Mitsubishi Electric Corp.), Harry E. Ruther, Jr. (Sears, Roebuck & Co.), Gordon Reichard (Sears, Roebuck & Co.) (two affidavits), Nobuyuki Yamataka (Matsushita Electrical Industrial Co.), M. Yoshida (Sharp Electronics Corp.), and Akio Morita (Sony Corp.) (¶ 64). Defendants have also referred to the deposition testimony of Zenith executives Vito Brugliera and Karl H. Horn. Plaintiffs’ principal affiant with respect to product comparisons under the 1916 Antidumping Act is Vito Brugliera, Manager of Value Engineering for Zenith. He has submitted six affidavits responding to defendants’ affiants, and one affidavit in response to our request. Plaintiffs have also submitted the affidavits of George A. Schupp and Rocco F. Mainiero, two other Zenith officials. Plaintiffs have also submitted two expert witness reports on the technical comparability of consumer electronic products manufactured for the Japanese market with products manufactured for the U. S. market. The report of Walter Lukas on behalf of plaintiff National Union Electric Corporation concerns only television receivers, which are the only products involved in NUE’s claim. The report of Karl Horn and Vito Brugliera on behalf of Zenith addresses the comparability of television receivers, radios, phonographs, and tape recorder/players. Both reports are based on voluminous and detailed model-by-model match-ups, which were made independently by the authors of each report. The reports include exposition of the technological basis for the matchups and the method of their construction, and express opinions, based on the matchups, as to the technological comparability of the products sold in the U. S. and in Japan. The matchups constructed by the plaintiffs’ expert witnesses do not take into account the categorical differences between products manufactured for the Japanese market, as a class, and those manufactured for the U. S. market, as a class, which are detailed infra. Lukas states explicitly that these differences are “general considerations” which “do not materially impact upon technological comparability.” See n. 22, infra. The method of selecting comparable models which Lukas describes in his report makes no allowances for differences in tuners and power supply components to accommodate the differences we describe below. Although the Horn/Brugliera report does not include an explicit disclaimer of the sort made by Lukas, the detailed explanation in that report of the method of their construction of the model-by-model matchups makes it clear that the differences we describe were not factors in their analysis either. Plainly, the model-by-model matchups are based on the assumption that those differences are not legally significant. Since the matchups constructed by plaintiffs’ experts do not address but do not contravene the differences described herein, the validity of the matchups as essential support for plaintiffs’ claims under the 1916 Antidumping Act is wholly dependent on whether or not we agree with the assumption upon which the matchups are based: that the undisputed physical differences between products uked in Japan and those used in the U. S. '¡are legally insignificant. The plaintiffs’ Final Pretrial Statement (“FPS”) was filed pursuant to Pretrial Order No. 154, a case management order which we entered on March 20, 1979, to govern the final pretrial phases of this gargantuan litigation. Pretrial Order No. 154 has been published as an appendix to our opinion certifying for interlocutory appeal our prior opinion and order concerning plaintiffs’ Seventh Amendment right to civil trial by jury, 478 F.Supp. 889, 946-60 (E.D.Pa.1979), appeal pending, No. 79-2540 (3d Cir. filed Sept. 20, 1979). The requirements governing the FPS are set forth in Part III of Pretrial Order No. 154, 478 F.Supp. at 949-50. Plaintiffs were required to set forth in narrative form each fact which they intend to prove at trial. Id. Part III-C, 478 F.Supp. at 949. The FPS has preclusionary effect: except for good cause shown, the plaintiffs are precluded from offering at trial any facts or evidence to prove such facts which have not been disclosed to the defendants and the court in plaintiffs’ FPS. Id. Part III-D, 478 F.Supp. at 949-50. The FPS which plaintiffs have filed, including appendices, errata, and addenda, contains more than 17,000 pages. The plaintiffs’ dumping claims as set forth in the FPS, vol. 17 at 8049-8273, are based on massive model-by-model price comparisons which they have submitted with the FPS as Appendices C, D, and J. The price comparisons are based on the matchups of models sold in the U. S. with models sold in Japan which were constructed by plaintiffs’ experts Lukas and Horn/Brugliera. FPS vol. 17 at 8052 (television receivers); id. at 8151-64 (non-television consumer electronic products). As a result, the validity of the plaintiffs’ dumping claims as set forth with preclusive effect in the FPS is dependent on the validity of the model-by-model matchups which were constructed according to the methods described in the reports of plaintiffs’ expert witnesses. As we have noted, the validity of the matchups depends in turn on whether or not U. S. and Japanese consumer electronic products are comparable for purposes of the 1916 Antidumping Act despite the undisputed differences between them. Except insofar as it reveals plaintiffs’ reliance on the model-by-model matchups to support their dumping claims, plaintiffs’ FPS does not otherwise address the issues of product comparability which are involved in the instant motions. We turn now to an exposition of the technical differences between consumer electronic products made for use in Japan and in the U. S., and the effects of those differences on consumer use and marketability of those products. We begin with television receivers, and then consider the same factual matters with respect to non-television products. B. Physical Similarities and Differences Between U. S. and Japanese Television Receivers Apart from variations between and among particular models of television receivers, which do not concern us here, there are technological differences between television receivers sold for use in the United States, as a class, and television receivers sold for use in Japan, as a class. There are also extensive similarities in the technology employed in the two classes of products. We address the similarities first, and then turn to the differences. The function of any television receiver is to create sound and pictures by decoding information which has been encoded upon a radio signal of a particular frequency. There are three major systems in use for encoding audio and video information by altering the electrical characteristics of a radio signal: PAL (Phase Alternating Line) SECAM (Sequential Color and Memory); and NTSC (National Television Standards Committee). PAL is used in Germany; SECAM is used in France and the Soviet Union. NTSC is used in the United States and in Japan, and in many other countries. Because both Japan and the U. S. employ the NTSC standards, the electrical characteristics by which visual and auditory information are encoded on a radio frequency to convey sound and pictures to the consumer’s home are identical in the two countries. Because the standards are identical, the signal processing technology within television receivers used in the two countries is the same. Television receivers designed for use in Japan could be operated in the United States, and receivers designed for use in the United States could be operated in Japan, if the following components were altered or replaced: 1. Very High Frequency (VHF) Tuner 2. Ultra High Frequency (UHF) Tuner 3. Power Transformer. The functions of these components, and the reasons why identical ones cannot be used in the U. S. and in Japan, are explained infra. Television receivers which are physically identical except for these three components could be operated in both countries. The material differences between U. S. and Japanese television receivers arise from two sources: the differing frequencies upon which television broadcasts are made, and differences in the available alternating current power supply. The U. S. and Japanese television systems differ in the allocation of radio frequencies for television broadcasts. In Japan, TV broadcasts are made on frequencies ranging from 90 to 108 megahertz (“Mhz”) and from 170 to 222 Mhz for VHF broadcasts, and from 470 to 770 Mhz for UHF broadcasts. In the United States, VHF broadcasts are made on frequencies ranging from 54 to 88 Mhz and from 174 to 216 Mhz, and UHF broadcasts are made on frequencies ranging from 470 to 890 Mhz. It should be apparent from these figures alone that, although there is some overlap in both the VHF and the UHF bands, much of the frequency spectrum which is allotted to television broadcasts in each country is not so used in the other country. More importantly, the allocation of specific frequencies to particular television channels differs as between the U. S. and Japan. CHANNEL U.S.A. JAPAN 1 - Picture None 91.25 Mhz 1 - Sound None 95.75 Mhz 2 - Picture 55.25 Mhz 97.25 Mhz 2 - Sound 59.75 Mhz 101.75 Mhz 3 - Picture 61.25 Mhz 103.25 Mhz 3 - Sound 65.75 Mhz 107.75 Mhz 4 - Picture 67.25 Mhz 171.25 Mhz 4 - Sound 71.75 Mhz 175.75 Mhz 5 - Picture 77.25 Mhz 177.25 Mhz 5 - Sound 81.75 Mhz 181.75 Mhz 6 - Picture 83.25 Mhz 183.25 Mhz 6 - Sound 87.75 Mhz 186.75 Mhz 7 - Picture 175.25 Mhz 189.25 Mhz 7 - Sound 179.75 Mhz 193.75 Mhz 8 - Picture 181.25 Mhz 19 .25 Mhz 8 - Sound 185.75 Mhz 197.75 Mhz 9 - Picture 187.25 Mhz 199.25 Mhz 9 - Sound 191.75 Mhz 203.75 Mhz 10 - Picture 193.25 Mhz 205.25 Mhz 10 - Sound 197.75 Mhz 209.75 Mhz 11 - Picture 199.25 Mhz 211.25 Mhz 11 - Sound 203.75 Mhz 215.75 Mhz 12 - Picture 205.25 Mhz 217.25 Mhz 12 - Sound 209.75 Mhz 221.75 Mhz 13 - Picture 211.25 Mhz UHF BAND 13 - Sound 215.75 Mhz STARTS UHF BAND STARTS The VHF and UHF tuners within a television receiver receive transmitted radio signals of desired frequencies, upon which audio and video information has been encoded. The tuners convert the received signals to specific lower frequencies, see n. 18, supra, and transmit the converted signal to other components of the TV receiver for processing. The VHF and UHF tuners employed in the U. S. and in Japan must be physically different to accommodate the different frequencies upon which television picture and sound are broadcast in the two countries. As a result of the foregoing, Japanese television receivers could not receive most VHF television broadcasts in the United States, and vice versa, even if the sets were otherwise operable. The Japanese channels 8, 9, 10, and 11 correspond to the U. S. channels 10, 11, 12, and 13, respectively. A Japanese set operated in the U. S. could receive U. S. channels 10-13 and no others; a U. S. set operated in Japan could receive Japanese channels 8-11 and no others. The Japanese UHF band is wholly included in the U. S. UHF band; a U. S. set operated in Japan could receive all UHF broadcasts, but a Japanese set operated in the U. S. could not receive all U. S. UHF broadcasts. The U. S. and Japanese systems for the transmission of electrical energy in the form of alternating current also differ. Thus the power sources available for the operation of television receivers and other appliances are not the same in the two countries. In the United States, electric power is supplied at 120 volts, with a power frequency of 60 Hz; in Japan, power is supplied at 100 volts, with frequencies of either 50 Hz or 60 Hz in use in different parts of the country. The power transformers in television receivers convert incoming alternating current to direct current at a voltage appropriate to the electronic design of the receiver. Because television receivers used in the U. S. and in Japan are designed to operate on the available power supply, the power transformers in use in the two countries are different. However, receivers which are powered only by batteries could be used interchangeably in the two countries, if they were altered to receive the appropriate frequencies. C. Effect of the Physical Differences on Consumer Use and Marketability The plaintiffs’ affiants and expert witnesses emphasize that the physical differences which we have outlined between television receivers sold in the U. S., as a class, and television receivers sold in Japan, as a class, are technically insignificant. In deciding these summary judgment motions, we must credit these averments, as they clearly suffice to raise a genuine issue of fact. Even if we were not so bound, we have no doubt that the differences described above have little more significance technically, and are of little more professional interest to an electronic engineer, than the prices at which the receivers are sold or the nationality of their producers. Plainly, the undisputed physical differences between television receivers used in the U. S. and in Japan are merely adaptations to the technical conventions of broadcasting and of electrical power transmission in the two countries. They are closely analogous to the differences necessitated by the use of the metric system in many countries, and of the traditional units in the United States, or by the use of right-hand-drive automobiles in some countries and of left-hand-drive vehicles in the United States. Our task, however, is to determine the legal significance of the undisputed physical differences. We are not concerned with the technological significance of the differences unless the legal standard which we must apply is formulated in terms of their technological significance. The legal standards which are controlling here, for reasons which are stated at great length in the remainder of this opinion, do not require us to evaluate the significance of the differences as a technical matter, or to assess the extent to which they would affect an engineer designing a television receiver. Nor do the controlling legal standards require us to evaluate the differences in cost of production which result from adaptation to the differing technical conventions of the U. S. and of Japan. Instead, the pertinent legal standards require us to assess the impact of the undisputed physical differences on consumer use and marketability. To these matters we now turn; again, the facts related are admitted by the plaintiffs and there is not the slightest doubt as to their veracity. Zenith’s Executive Vice President, Karl H. Horn, one of its highest officers and a member of its Board of Directors as well as an expert witness in this litigation, discussed the utility in Japan of TV sets designed for United States use, and vice versa, at his deposition. He admitted that a set designed for use here might be incapable of receiving any picture at all in Japan, let alone a satisfactory one, and conceded that sets designed for use in Japan cannot receive two of the three major U. S. television networks in Chicago, the situs of the deposition. Mr. Horn testified, inter alia: Q. Do you know whether I could walk into a Sears Roebuck store here in Chicago and buy a Sears color television set and take it over to Tokyo and plug it in and operate it? A. You could plug it in and you could operate it. Whether you would receive any picture at all or whether you would receive a satisfactory picture is a big question mark. Q. Would you in good conscience suggest to anyone that he take a Sears television set as they are sold in the United States and sell it to somebody for use in Japan? A. No. . . . Q. Could I, assuming I were to go to Tokyo or Osaka, or any large city in Japan, and walk into the department store and purchase a television set, could I bring that set as I purchased it in Japan to this country and operate it satisfactorily? A. . . . You do not receive the U. S. low channels, 2 through 6, but you can receive without any adjustment 9 [sic] through 13 and with adjustment 7 through 9. . Q. So that without modification that set in Japan would be incapable at least of receiving two of the three major television networks in the United States in Chicago? A. Yes. Vito Brugliera, plaintiffs’ affiant and expert witness, testified at his deposition that a TV receiver manufactured for use in Japan, if used in the United States, probably would run hot and might “overheat and go” as a result of the voltage differences. He testified that it would be “ridiculous” to try to use in the U. S. a receiver manufactured for use in Japan: Q. Would you consider it ridiculous to try to use a Japanese set in the United States? A. Well, in that context I would say yes, because— Q. You consider that ridiculous apart from the question of cost? A. Yes, because from a cost viewpoint, there is not that kind of difference. Q. Apart from any question of cost or price of the Japanese set, would you consider it to be ridiculous to try to use that set in the United States? A. In terms of, let’s say, usable frequency allocations, I would have to agree with you. Q. Because it wouldn’t get all the U. S. channels, would it? A. But that doesn’t say the sets are different from a technological or cost viewpoint. That is a point I want to make very clear. Brugliera also testified that attempted use in the United States would be a “misapplication” of the Japanese domestic TV receiver. He admitted that the alterations necessary to make a TV set manufactured for one country capable of receiving all television broadcasts in the other country are beyond the capacity of the average consumer. To recapitulate; (1) a receiver designed for use in Japan would not receive most U.S. broadcasts and would be in serious danger of fatal overheating; (2) the changes necessary to make the Japanese domestic set operable in the United States could not be made by the average consumer. It is clear from the admissions of plaintiffs’ witnesses that any rational consumer in the United States would prefer a television receiver manufactured for use in this country to one manufactured for use in Japan, and that he would not purchase a set manufactured for use in Japan. Similarly, any rational Japanese consumer would prefer a TV set made for use in Japan to one designed for use in the United States. We conclude that television receivers manufactured for use in Japan are unusable by consumers in the United States, that they are unmarketable in the U. S., and, a fortiori, that the receivers are not commercially interchangeable. D. Physical Differences Between U.S. and Japanese Non-Television Consumer Electronic Products; Effects Thereof on Consumer Use and Marketability In addition to its claims with respect to television receivers, plaintiff Zenith Radio Corporation also complains of actionable dumping of radios, phonographs, and tape and cassette recorder/players. National Union Electric Corporation, the other plaintiff in this litigation, has limited its complaint to television receivers. Although the record with respect to similarities and differences between non-television consumer electronic products sold in the U. S. and in Japan is far less voluminous than the corresponding record with respect to TV receivers, two differences are undisputed. As before, all the facts we relate are admitted by the plaintiff. All consumer electronic products which are not solely battery-operated must be designed to accommodate the differences in the available power supply in Japan and the U.S. As we have explained, the voltage and frequency of alternating current differs in the electrical power systems of the two countries. Like television receivers, other consumer electronic products which operate on alternating current include a power supply component which transforms the available external electrical power into direct current at a voltage appropriate for the internal workings of the product. The electric motors in some consumer electronic products, particularly phonographs and tape recorders, may be driven by the internal power supply or may be driven directly by alternating current from the external power source. Adaptation of a product designed for use in the United States for use in Japan, or vice versa, requires the alteration of the power supply component and of the electric motor if it is driven directly by the external power source. If radios, phonographs, and tape and cassette recorders designed for use in the United States were operated from the external power sources available in Japan, the audio output of all such products would include an objectionable hum. Moreover, the motors of phonographs and tape and cassette recorders which are powered by external alternating current would operate at a slower speed in Japan, causing pronounced sound distortion. Consumer electronic products which are operated by batteries do not encounter these problems of satisfactory operation. Another difference between products used in the U. S. and those used in Japan is specifically relevant to radios which receive FM transmissions. The standards for encoding audio information on a radio frequency for FM broadcast are identical in both countries. As a result, the electronic circuits used for processing FM signals in a radio receiver may be identical in both countries. The radio frequency bands assigned to FM radio transmission are different, however. In the United States, FM broadcasts are made on a frequency band of 88 to 108 Mhz. In Japan such broadcasts are made on a frequency band of 80 to 90 Mhz. Radios which receive FM transmissions which are designed for use in one country cannot be operated satisfactorily in the other country in that they can only receive broadcasts on the narrow part of the band, 88 to 90 Mhz, on which transmissions are made in both countries. The plaintiff’s affiant and witness aver that these differences are of no technical significance and do not affect manufacturing costs. For the reasons stated at p. 1207, supra and at great length infra, we do not view the technical significance of the differences as a decisive factor in the disposition of these summary judgment motions. Instead, the relevant factor is the effect of the undisputed differences on consumer use and marketability. It is clear that any rational consumer would prefer products which do not produce an objectionable hum or other sound distortion, and would prefer radios which can receive all broadcasts in his country on the FM band. Therefore we conclude that all consumer electronic products which are not solely battery-operated, and all radios which receive FM transmissions whether or not battery-operated, which are designed for use in the United States, are unusable to consumers in Japan, are unmarketable in Japan, and, a fortiori, are not commercially interchangeable with products designed for use in Japan. Having stated the undisputed physical differences between consumer electronic products manufactured for sale in the U. S. and those manufactured for sale in Japan, and having evaluated the impact of those differences on consumer use and marketability, we now turn to our analysis of the Antidumping Act of 1916. IV. ANALYSIS OF THE ANTIDUMP-ING ACT OF 1916 A. Introduction The observation that the Antidumping Act of 1916 has not played a prominent role in the American jurisprudence is an egregious understatement. In fact, until the 1970’s the Act was mentioned in only one reported decision, and that addressed a dispute over the availability of pretrial discovery and did not reach the merits. H. Wagner & Adler Co. v. Mali, 74 F.2d 666 (2d Cir. 1935). Apparently there have been four attempts to enforce the criminal provisions of the Act, but none of them has been successful and none has given rise to a reported judicial decision. Marks, United States Antidumping Laws—A Government Overview 43 Antitrust L.J. 580, 581 (1974). It may well be that, other than the Mali case cited above, there was, prior to the 1970’s, nary an action brought by civil plaintiffs invoking the 1916 Antidumping Act. Nor has the Act occasioned much scholarly commentary. With the single exception noted, we have searched the antitrust treatises in vain for reference to it. That exception is a recent treatise on the application of antitrust law to foreign trade, which dispatches the Act in the following paragraph: The present Antidumping Act of 1921 superseded the Antidumping Act of 1916 which provided criminal penalties and a treble damage action for dumping with intent to restrain or monopolize trade or to destroy, substantially injure, or prevent the establishment of a U. S. industry. The earlier law, while still intact, has been of no significance. Not only has the 1921 Act taken its place, but the specific intent required posed a very difficult enforcement problem. However, a private treble damage case brought under the 1916 Act in 1971 is pending as of this writing. W. Fugate, Foreign Commerce and the Antitrust Laws 412 (1973) (footnotes omitted). The “private treble damage case” mentioned in the above quotation is the instant litigation. The Act has been construed in an earlier decision in this litigation, in which Judge A. Leon Higginbotham, Jr., our predecessor in the case, upheld the validity of the Act against constitutional attack on grounds of vagueness. Zenith Radio Corp. v. Matsushita Electric Industrial Co., 402 F.Supp. 251 (E.D.Pa.1975). Judge Higginbotham there analyzed the language of the statute and determined that the challenged terms have a clear and ascertainable meaning. Id. at 255-58. Besides the instant litigation, the Act has also been interpreted in three other reported cases. In Bywater v. Matsushita Electric Co., 1971 Trade Cas. ¶ 73,759 (S.D. N.Y.1971), and in Schwimmer v. Sony Corp. of America, 1979-1 Trade Cas. ¶ 62,632 (E.D.N.Y.1979), the courts granted summary judgment for the defendants on the issue of standing. The courts observed that the language of the provision of the 1916 Act which authorizes private treble damage actions is substantially the same as the language of 15 U.S.C. § 15, which authorizes treble damage actions for violations of the antitrust laws, and held that the rules of standing applicable under § 15 should also apply in suits brought under the 1916 Act. Thus neither opinion tells us anything about the meaning of the Act itself. And in Outboard Marine Corp. v. Pezetel, 461 F.Supp. 384, 408-09 (D.Del.1978), Judge Murray M. Schwartz decided only that the Act has no application to goods which are manufactured exclusively for importation to the United States, and are not commonly sold either in the country of their manufacture or in third countries. Accordingly, he dismissed the plaintiff’s claim that electric golf carts were imported from Poland at prices which violated the Act, since the carts were sold only in the United States. While we find the analysis in these decisions useful, and will refer to it in our discussion, determination of the summary judgment motions which are presently before us requires a more extensive inquiry into the legislative and social history of the Antidumping Act of 1916 than has heretofore been undertaken. This will aid in our threshold task, which is to ascertain whether the Act was intended to be part of the corpus of antitrust law, or whether the Act was intended to be “protectionist” legislation, as that term is used in discussion of tariff barriers to free trade. This is a most important endeavor, for the character of the statute is of salient concern in its construction. We also seek guidance, of course, on the narrower issues before us. Our modus procedendi will be as follows. We will first examine the language of the statute itself. Next we will sketch the relevant political and legal history of the era, before the United States entered World War I, in which the Act was passed. As the Supreme Court recently observed, “courts, in construing a statute, may with propriety recur to the history of the times when it was passed; and this is frequently necessary, in order to ascertain the reason as well as the meaning of particular provisions in it.” Leo Sheep Co. v. United States, 440 U.S. 668, 669, 99 S.Ct. 1403, 1405, 59 L.Ed.2d 677 (1979), quoting United States v. Union Pacific Railroad Co., 91 U.S. 72, 79, 23 L.Ed. 224 (1875). In view of the 64 years which have passed since enactment of the statute, we will “recur to the history of the times” in somewhat more detail than is customary in the construction of more recent statutes which arise from a more familiar social and political background. After the background is sketched, we will examine the legislative history immediately pertinent to the enactment of the Antidumping Act. Finally, we will examine the essential differences between the Antidumping Act of 1916 and the Antidumping Act of 1921. B. The Statutory Text The term “dumping” has been defined as “price discrimination between purchasers in different national markets.” J. Viner, Dumping: A Problem in International Trade 4 (1966 ed.). See Zenith, supra, 402 F.Supp. at 259. Thus, to restate the obvious, the Antidumping Act of 1916 is a prohibition of international price discrimination. The Act mandates a comparison of the price at which articles are imported or sold within the United States with the “actual market value or wholesale price of such articles, at the time of exportation to the United States, in the principal markets of the country of their production.” The Act is violated if the price in the United States is “substantially less” than the foreign “actual market value or wholesale price,” after freight, duty, and incidental expenses are added thereto, and if the proscribed price discrimination is undertaken with the intent of injuring domestic industry. 1. Similarities to Antitrust Statutes As a price discrimination statute, the Antidumping Act of 1916 is functionally similar to the price discrimination statutes which are applicable to domestic business. Section 2 of the Clayton Act makes it unlawful “to discriminate in price between different purchasers of commodities.” 38 Stat. 730 (1914). This provision was in force at the time of the passage of the 1916 Antidumping Act and, as amended by the Robinson-Patman Act of 1936, is still in force. 15 U.S.C. § 13. The Supreme Court has held that the phrase “discriminate in price” embraces all differences in prices charged to different purchasers. FTC v. Anheuser-Busch, Inc., 363 U.S. 536, 549, 80 S.Ct. 1267, 1274, 4 L.Ed.2d 1385 (1960). However, Section 2 of the Clayton Act, both before and after the RobinsonPatman amendments, is applicable only if both “legs” of the alleged price discrimination involve commodities which are “sold for use, consumption, or resale within the United States.” See Zenith Radio Corp. v. Matsushita Electric Industrial Co., 402 F.Supp. 244 (E.D.Pa.1975). Hence the Clayton Act and the Robinson-Patman Act do not apply to international dumping, which involves price discrimination between commodities sold for use in the United States and commodities sold for use in foreign countries. See id. at 249. In addition to its functional similarity with Section 2 of the Clayton Act and the Robinson-Patman Act, the Antidumping Act of 1916 bears other significant resemblances to the antitrust statutes. As the courts noted in Bywater, supra, and Schwimmer, supra, the standing and damage provisions of the 1916 Act are essentially the same as those applicable to the antitrust laws under section 4 of the Clayton Act, 15 U.S.C. § 15. The clause of the 1916 Act which creates criminal penalties is virtually identical to, and specifies the same penalties as, the corresponding clauses of the Sherman Antitrust Act as then in force, 26 Stat. 209 (1890). And the intent clause of the 1916 Act speaks in antitrust terms, limiting the scope of the statutory ban to price discrimination practiced “with the intent of destroying or injuring industry in the United States, or of preventing the establishment of an industry in the United States, or of restraining or monopolizing any part of trade and commerce in such articles in the United States.” We conclude then, on the basis of the statutory text, that the 1916 Act is an antitrust, not a protectionist statute. That conclusion is strongly cor