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History of Communications-Electronics in the United States Navy, Captain Linwood S. Howeth, USN (Retired), 1963, pages 117-132:


CHAPTER  X


Renewed  Efforts  to  Establish  Control


1.  INCREASE  IN  RADIO  INTERFERENCE

Earlier efforts and failures to establish Federal regulation of the use of radio have been related.1 Interference between Government, commercial, and amateur stations continued to increase rapidly. Operators at the various commercial stations endeavored to prevent each other from transmitting traffic. Many amateurs intentionally interfered with the receipt of both Government and commercial messages. A chaotic situation existed. The question of Federal regulation was again brought to the front when, in 1906, President Roosevelt became a victim of the situation. Interference in the Boston area made it necessary to dispatch a torpedo boat to the drill grounds off Cape Cod, Mass., to deliver messages to him in the Mayflower. As a result of this incident, Rear Adm. Robley D. Evans, Commander in Chief, U.S. Atlantic Fleet, was verbally instructed by him, on 29 September, to prepare a memorandum regarding radiotelegraphy and recommendations as to its control. In compliance he submitted the following:
MEMORANDUM  FOR  THE  PRESIDENT

1. Government wireless stations on the sea coast were placed under the control of the Navy Department by Executive Order dated July 29, 1904.
    2. There are many commercial stations along the coast that are more powerful than those now in use on naval ships: If their instruments have approximately the same wave lengths as ours, they interfere to such an extent as to prevent completely the sending or receiving of official messages. Many of them will give way to official messages, but there are any wireless stations (the Marconi stations particularly) that neither give way to official messages nor refrain from breaking in when messages are actually being transmitted.
    3. Where two or more commercial companies have wireless stations in the same vicinity they interfere with each other, and only by a common agreement can each carry out its business.
    4. Generally speaking, stations using instruments of a long wave length do not interfere with those using shorter waves; as for instance, the long distance station at Wellfleet, Mass., does not materially interfere with naval vessels. As soon as naval long distance stations are installed in the same vicinity, as may soon be necessary, this station and similar ones will also interfere unless, it, with all others on the coast, are under a common control.
    5. The Naval Service, as well as commercial interests, demands the use of wireless telegraphy for all distances possible across the water. As it is impracticable to prevent wireless interference, when any one who may so desire can establish a station of any power or any wave length and send messages at any time in the day, it is obvious that, for the common good, the Government, which represents the whole Country, should regulate all the wireless stations along the coast.
    6. I have therefore to recommend the following:
        (a) That, all coast wireless stations shall be under the control of the Navy Department.
        (b) That, these stations may be connected by special wires to the commercial telegraph lines and shall be used for commercial messages between the shore and ships at sea; under such regulations as the Secretary of the Navy may prescribe.
        (c) That, no private wireless stations shall be permitted inland, the power of which is sufficient to send a message to the sea coast.
        (d) That, the Secretary of the Navy shall be empowered to cause to be inspected any private wireless station, and, in the event of it being found by this inspection that this law has been disobeyed, he shall take immediate steps to have such station closed by due process of law until the wireless apparatus has been brought to conform to the law.2

2.  REVERSAL  OF  THE  BUREAU  OF  EQUIPMENT  POLICY  PERTAINING  TO  FEDERAL  REGULATION

At this time, after having gained the complete support of the Executive Branch of the Government in the struggle to obtain legislation controlling the use of radio, the Bureau of Equipment took a position which is difficult to understand. Commenting upon Evans' recommendations, it stated, in effect, that it was essential, both in times of peace and of war, that there be a chain of intercommunicating radio stations along the coasts of the United States and between it and its outlying possessions. Additionally, for the purposes of aiding navigation, intermediate stations should be located at each lighthouse and that several long-distance circuits should be established for the purpose of communicating with the fleet at the maximum possible distance. In the foreseeable future, it considered that commercial limitations were such that this could only be accomplished and maintained by the Government and, being of this opinion, the Bureau had established a chain of stations on the east and gulf coasts with intercommunicating stations in the West Indies and Panama, was in the process of establishing a chain on the Pacific coast, and was preparing for the establishment of a chain in the Philippines.3
    Concerning the problem of interference and its control, the Bureau expressed the opinion that experience had already demonstrated that interior radio communication was impractical and that any attempt to establish this on a commercial scale would fail. Therefore, it considered the only available commercial radio field was in the provision of communications between ships at sea, between ships and shore, and across bodies of water. This type of business might, and probably would, be remunerative to a single company and thus it appeared that, in the near future, there would be but one company maintaining radio communications for public service. When this came to pass arrangements could then be made with that company for the prevention of interference. After that it would only be necessary to regulate the operation of experimental and private stations, without interfering with vested commercial rights. The policy of the Bureau to encourage the commercial use of radio and to encourage private experimental work had resulted in rapid development of the art in the United States, and it deemed that, for the time being, at least, it was not desirable to restrain the working of such stations afloat or ashore. The decisions of the International Conference on Wireless Telegraphy, then in session in Berlin, would have an important bearing upon matters relating to ship-to-ship and ship-to-shore communications. The Bureau concluded its remarks by recommending that no immediate action be taken to regulate the operation of commercial radio stations, hoping that, before long, it could bring about the desired control of radio.4

3.  THE  SECOND  INTERNATIONAL  RADIO  TELEGRAPHIC  CONFERENCE,  BERLIN,  1906

In May 1906, the Chief of the Bureau of Equipment made comments concerning the International Radio Telegraphic Conference scheduled to be held in Berlin in October. The first of these recommended the acceptance of the invitation.5 Since the President's approval of the recommendations of the Interdepartmental Wireless Telegraph Board had placed the control of all Government coast radiotelegraph stations under the Navy Department, the Bureau recommended that Rear Adm. H. N. Manney, USN, lately retired, and Commander Barber be designated as the Navy Department's representatives at the Conference, and that Manney be designated the head of the U.S. delegation.6 No legislation having been enacted on the subject, the Bureau favored an interdepartmental conference to draw up instructions for the delegation and that these instructions should be considered as expressing this Government's attitude. The Bureau made several suggestions as to how the delegates should be instructed. The first was that they advocate the international adoption of sections 2 and 3 of article I of the final protocol of the 1903 Conference. These required coastwise stations to receive and transmit radiograms originating on ships at sea without distinction as to the make of equipment employed and that contracting States make public any technical improvements which would facilitate such communications. Secondly, that, as an important aid to navigation, it was further recommended that they advocate an extension of the weather reporting services of all countries, in accordance with recommendations of the Interdepartmental Wireless Telegraph Board. The third was a recommendation for an extension of the use of the International Signal Book to radiotelegraphy, with the letters for "International Code" to be given international recognition, on a call for that code, in the same way that the code pennant was then used. Those letters were not to be assigned as a "call" to any shore station or vessel in any country.7
    The suggestion of appointing an interdepartmental board to arrive at a U.S. position was accepted, and one was ordered to convene in Washington during May 1906. Having been designated by the Secretary of the Navy as the delegate of the Navy Department to the International Conference, Admiral Manney was also appointed the Navy's representative at the meeting of this Board.8
    As finally constituted, the American delegation consisted of Ambassador Charlemagne Tower, head of the delegation; Rear Adm. Henry N. Manney, USN (retired); Brig. Gen. James Allen USA, Chief Signal Officer of the U.S. Army; Mr. John I. Waterbury, Department of Commerce and Labor; and Com. F. M. Barber, USN (retired), who was appointed technical secretary to the delegation. For Waterbury and Barber it was a repeat performance, both having been delegates to the 1903 Conference. The delegates took with them to the Conference a mass of statistics showing the work done by the Navy Department in the development of radio during the 3 previous years.
    Pursuant to the invitations issued by the German Government, the Second International Radio Telegraphic Conference finally convened at Berlin on 3 October 1906. This Conference had originally been scheduled for 1904 but Great Britain and France requested postponement in order to examine the material to be submitted. Germany agreed to this postponement and suggested 4 April 1905 as the convening date. By that time Russia and Japan were engaged in conflict. Later, a convening date of 28 June 1906 was established, but another delay was requested by Great Britain. One hundred and nine delegates and functionaries represented Germany, the United States of America, the Argentine Republic, Austria, Hungary, Belgium, Brazil, Bulgaria, Chile, Denmark, Spain, France, Great Britain, Greece, Italy, Japan, Mexico, Monaco, Norway, the Netherlands, Persia, Portugal, Rumania, Russia, Sweden, Turkey, and Uruguay. Whereas the 1903 Conference had the representatives of 8 powers, this one was attended by delegations from 27 nations.9
    By formal arrangement, adopted at the first of the 26 sessions, it was voted that the proceedings would be secret, therefore only accredited members were admitted to the conference rooms of the Imperial Reichstag.10
    The initial discussions were for the purpose of determining the subjects to be contained in the Convention itself, as well as in the Rules and Regulations to be appended to it. These were induced largely by the difference in point of view and the variance in individual interests as well as in the geographical situation of the participants in the discussions. The attitude of the United States, as declared at the outset and maintained throughout the debates, was distinctly in support of unrestricted interchange of communications between all, stations, without regard to the make of radio equipment used by any. It was evident from the beginning that countries such as Great Britain and Italy, which had already entered into contracts with the Marconi interests, based upon the exclusive use of their equipment and which prohibited interchange of messages with stations equipped with other than Marconi apparatus, could not readily agree to such a proposal. This caused difficulty in adjusting the differences of interests that were involved. The first focal point of variance was Article 3 of the Convention, the principle of which was that coastal stations and ship stations would be obliged to interchange messages with each other without distinction as to the apparatus used. Adoption of this would necessitate a violation, by several nations, of contracts executed between them and the Marconi interests. Although this article was finally accepted in principle, a vote upon it was postponed, at the request of Great Britain, until after the other articles of the Convention and of the Service Regulations had been discussed, adopted, or rejected. The U.S. delegation, considering it good policy to acquiesce to this postponement, gave notice that it did not modify its views concerning the principle involved. As the many other articles were discussed and amended from day to day in the sessions of the Conference, the delegation of the United States became concerned lest amendments might be introduced aimed at weakening the provisions of article 3 and nullifying its value even before it came up for final debate. To forestall such action, it made the following declaration:
The proceedings of this Conference have reached a point at which the delegates representing the United States of America find themselves obliged to make the following declaration:
    "The acceptance of Article in the terms proposed to the Conference is in their opinion indispensable to the due consideration of the Convention submitted to our deliberations. Its incorporation into the Convention without modification is necessary in order that that article may serve as the basis of an international agreement.
    "The only objection which has been made to the provisions of this article is the assertion that the different systems of radio telegraphy are not able to communicate effectively one with the other; and, further, that all well organized systems already installed are susceptible to disturbances.
    "It has been fully demonstrated by the Government of the United States of America, through experiments carried out in climates of every kind, that the different systems of radio telegraphy can be effectively used simultaneously one with the other. In fact, a combination made by selecting amongst the elements of different systems of radio telegraphy has produced better results than those which any one system has been able to give by itself.
    "The United States Navy is actually using at present eight different systems in its coastal stations and its stations aboard ship; and during the three years in which it has been making these experiments it has reason to be entirely satisfied with the results obtained.
    "As to the questions of interruptions between one station and another, we have been able to operate without interruption telegraph stations in the immediate vicinity of others having a different system of radio telegraphy, whilst stations close to each other although equipped with the same system of installation have not succeeded in securing freedom from disturbances.11
    This declaration brought forth a flood of polemics that rocked the chamber, but resulted in article 3 being immediately floored for final debate. The British delegation exerted its strongest effort to defeat it, but, with the vigorous support of the United States and Germany, it was adopted without alteration. Since it was impossible for the British to accept the provision without violating the conditions of their Government's contract with Marconi, its delegation intimated that it could not remain at the Conference under such conditions. The Conference then agreed that an easement in the final protocol, in the form of an article, might be inserted for the sole purpose of permitting such nations as were involved with the Marconi interests to adhere to their contracts.12 This provided that each contracting government could reserve to itself the right to designate, according to the circumstances, certain coastal stations which should be exempt from the obligations imposed by article 3 of the Convention, provided that, as soon as the measure went into effect, there should be opened, within its territory, one or more stations subject to the obligations of article 3, and insuring, within the region where the exempted stations were located, such radio service as would satisfy the needs of the public. Those governments which desired to reserve that right were to give notice thereof, by the form provided by the Convention, not later than 3 months before the Convention was scheduled to go into effect, or, in the case of subsequent adhesion, at the time of such adhesion. At the same time it was also agreed that those governments which did not wish to avail themselves of this reservation should formally declare that they would not do so. This declaration was intended as a show of hands and was signed by two-thirds of the represented nations. These were Germany, the United States of America, the Argentine Republic, Austria, Hungary, Belgium, Brazil, Bulgaria, Chile, Greece, Mexico, Norway, the Netherlands, Rumania, Russia, Sweden, and Uruguay.13
    Having led in the successful campaign to insure compulsory radio communication between ships and shore stations, the next task which devolved upon the Americans was to assure intercommunication between ships, regardless of apparatus employed. Technically, only matters related to or included in the final protocol of the 1903 Conference were open to discussion in this one. That protocol contained no provision on the subject of compulsory intercommunication between ships. The President of the Conference, Herr Von Kraetke, Secretary of State for the German Postal Department, was reluctant to enter upon consideration of the subject, characterizing it as a new matter and hence one which could not properly be presented. The persistent, determined, and united opposition on the part of countries involved in Marconi contracts presented quite an obstacle to be surmounted, but the American delegation was equally persistent and determined. In this connection a quotation from one of the Manney's reports to the Chief of the Bureau of Equipment well illustrates the point:
Also the American delegation because of the policy of the Marconi Company in refusing to permit vessels equipped with Marconi apparatus to communicate with vessels equipped with other wireless apparatus, as instanced in the case of the steamer Vaterland refusing maritime information to a government vessel to assist her in her search for a derelict, and the more outrageous instance of a Marconi station interfering to prevent communication between a U.S. Government vessel that had suffered loss in a storm and desired to send notice to the authorities, and an American Merchant steamer; on the ground that the wireless instruments on the government vessel was not of the Marconi system, submitted to the Conference Amendment #75 requiring general intercommunication between stations regardless of the wireless system employed in them.14
    The delegation held that the principle of requiring ships to intercommunicate regardless of their make of radio equipment was of first importance to maritime interests and urged it in the Conference on the basis of commercial advantage, although it was chiefly concerned with it as a humanitarian measure.15
    This ship-to-ship compulsory intercommunication proposal aroused the same, but a more hostile, opposition as that which had attempted to defeat article 3. For a time its sponsors stood alone. The chief delegate of Great Britain went so far as to declare formally to the U.S. representatives that his delegation would never allow that point to be carried out and that they "would fight us tooth and nail." The Italian delegation was frank enough to announce that its sentiments were in favor of the American proposition, but, owing to the nature of the contracts between the Marconi Company and the Italian Government, it could not support the proposal. The delegation of the United States was determined not to make any concessions preferring to be defeated, if necessary, in order that it might bring its proposal before the Conference and give notice to the world that the U.S. Government stood for the principle that intercommunication must be obligatory between ship and ship.16
    As the debate continued the United States began to gain support as Germany, France, Austria, Hungary, Belgium, Holland, and Russia shifted their positions. The British delegation then offered to concede insofar as messages relating to saving life and property at sea were concerned. The Germans countered this by proposing that messages related to navigation should be considered in that category. Additionally, they proposed that the Conference should commit itself to an expression of hope that the next conference would adopt the American proposition. The American delegation continued to maintain their steady day-by-day pressure to attain what to them seemed so very vital. Under the influence of this insistence, and following much spirited and somewhat heated debate, the opposition to their proposal began to wither. Finally, in the session of 31 October, they were rewarded with the great satisfaction of seeing their proposal, in the form of a supplementary agreement providing that every ship station referred to in the first article of the International Radio Telegraphic Convention "shall be bound to intercommunicate with every other shipboard station, without distinction as to the radiotelegraphic system adopted respectively by these stations," carried by a majority vote of the Conference. With the exception of Mexico, the delegations of all the countries which had previously indicated that they desired no exclusion of compulsory communications by their shore radio stations, signed this agreement. In addition to these, the delegations of Denmark, Spain, France, and Turkey also voted for this measure.17
    Having gone down in defeat as antagonists of article 3, the British delegation had submitted a proposal to the Committee on Regulations which provided that a surtax might be charged when stations employing one system were forced to receive and transmit messages emanating from a rival system. This proposal was entirely out of accord with the broad and liberal spirit which animated the Conference. Although the British proposal was presented most plausibly and with marked ability, it was plainly intended to make parties to the Conference generally assist in the payment of such royalties or indemnities as might be due the Marconi Co. by Great Britain. The proposition was being debated at the same time as the compulsory ship-to-ship one, but came to a final vote first. The American delegation fought it vigorously and exposed its character so effectively that the decision went overwhelmingly against the British position. As a result of this defeat the British delegation lost much of its following, and this was instrumental in the American victory on the ship-to-ship proposal.18
    The success of the American delegation was due to the unusual position it occupied at the Conference. This was the result of the United States being neither involved in the ownership nor the operation of telegraph or other systems of communication nor restricted by engagements with private interests which were conducting business ventures of that nature. Its delegates at the Conference were able to direct their energies, singly and solely, to the primary purposes of the Conference in their broadest interpretation; the adoption of provisions calculated to promote a wider use of international radio under proper control, to bring its benefits home to the greatest number of people, to stimulate further invention, and to encourage progress and development in the application of the results already achieved.19 Absolute freedom of action placed them in a very strong position, as was amply demonstrated by records of the proceedings, and even more so by the remark of the Emperor of Germany. After the final adjournment, he told the American delegation that the United States had saved the Conference from failure, and he expressed, with marked emphasis, his appreciation of their efforts.20
    All the documents embodying the decisions of the Conference were signed on 3 November, exactly 1 month from the date it convened.21
    The agreements had an effective date of 1 July 1908, or upon ratification if of a later date, and were to be tentative in character and were to remain in force for an indefinite time. It was believed that various modification and extensions would be suggested by experience before the next conference which was scheduled for 1911. The main provisions of these agreements were:
The requirement for compulsory communications between all coast and ship stations. Great Britain reserved the right to organize a separate system of shore stations in fulfilling this requirement;
    All radio stations must accept, with priority handling, calls of distress from ships, and must answer these calls with priority dispatch;
    The establishment of an International Bureau at Berne, Switzerland, for the housing and distribution of information regarding the several systems in use and the wireless stations in each country; and,
    The tariffs to be charged for international radio communications.
The Italian delegation made reservation of its Government's ratification until such date as it could reach agreement with the Marconi interests.22
    Summing up the work of the Conference and the four documents which emanated from its efforts, it is observed that it not only achieved notable results concerning vital, matters but it also explored the entire subject in detail as indicated by the total of 100 proposals which were introduced and discussed. A large number of technical administrative regulations, as well as such problems of regulations of interference by one station with the workings of another the imperative priority of distress calls over all other communications, with the extension of this rule to all commercial naval and military stations; the steps taken toward the settlement of the delicate question of colonial representation in a future conference; and the scheme of arbitration laid down in the event of disagreement between parties to the Convention were worked out at the expense of much labor on the parts of the delegates.
    Several months later, Manney, while being interviewed in London on various naval subjects, voiced his opinion concerning U.S. naval radio:
I have been grateful to learn as a result of attending the Wireless Telegraphy Conference in Berlin that we also lead in this science.23

4.  THE  STRUGGLE  FOR  RATIFICATION  OF  THE  BERLIN  CONVENTION

President Roosevelt transmitted the proposed treaty to the Senate with the recommendation that it be ratified. Hearings on this began before the Committee on Foreign Relations on 15 January 1908. The chairman, Senator Frye, had been briefed previously by Admiral Manney. In this briefing the events of the Conference were related in detail, especially the opposition which had been overcome by the United States delegates in compelling recognition of the principles and purposes of the United States, all of which were considered unselfish and designed to create a wider and more systematic use of radio in the best interests of the world at large.24 Manney stated that he considered it vital that Federal legislation be enacted to control the conflicting interests, and that the United States become a party to the treaty since international incidents brought about by radio transmissions from our mainland and our possessions could easily arise. Incidents of noncooperation were cited as necessitating international regulation.25
    Ex-Attorney General of the United States, the Honorable John W. Griggs, then president of the Marconi Wireless Telegraph Co. of America, appeared before the Committee and led the fight for the Marconi interests. He submitted a "memorandum of objections" which contained many pages of arguments opposing ratification, because such action, it maintained, would most seriously and injuriously affect the business and profits of the Marconi interests and practically destroy the advantages which the inventor and his assignees expected to receive and were entitled to obtain from the priority of their inventions and from the establishment of their system.26
    The salient points of this memorandum and his testimony were:
The convention is repugnant to the Constitution of the United States.
    Radio is a recent discovery and assent to the convention would be premature.
    The convention commits this Government to the policy of government operation of wireless telegraphy for commercial purposes.
    The arrangement proposed represents an enforced partnership to which the Marconi companies contribute everything and the German manufacturers of radio apparatus nothing, neither invention, nor capital, nor skillful enterprise.
    The rates fixed by the regulations are not remunerative.
    Satisfactory working involves not only uniform apparatus but uniform methods.
    The authors of the memorandum were vehement in their objections stating:
We object, therefore, to the mandatory provisions of articles 3 and 14 of this Convention, because, in effect, it is taking the property of the Marconi Company and subjecting it to the use and service of others against the will of the owners, and to their injury.
    We object, further because the Convention provides no adequate means of compensation for such service.
    We object because the Convention, if adopted by the United States, will impair the value of the patents issued to Marconi and thus violate the national faith.
It stated that a committee of the British Parliament, which had this convention under consideration, had stated that if British ratification caused damage to the Marconi interests those interests should be fully compensated for their losses. Insistent the American Marconi interests should receive the same treatment, they stated:
We respectfully insist that if this treaty is ratified by the United States the owners of the Marconi patents are likewise entitled to recompense for injury and loss.27
    The next witness appearing before the Chairman was Mr. Cloyd Marshall, representing the United Wireless Company.28 He presented a brief, signed by Christopher Columbus Wilson, notorious President of the company, in support of ratification. This was mostly a denunciation of the Marconi interests, but the final three paragraphs dealt with the treaty and are quoted:
We are firmly of the belief that the ratification of the Treaty would be advantageous not only to the government, but also to the wireless telegraph companies, although we think that great care should be exercised in embodying service regulations into laws, so that the development of the industry will not be hindered by impracticable or unscientific regulations. The powers of licensing and witholding licenses to stations or operators would make it possible for this board or a government department to destroy the business of an established company. But we think this is no more than is the case of the Interstate Commerce Commission, which has very great power over the interstate railroads. As we understand it, it is the policy of the Government to foster the development of wireless invention and its use, and to duly encourage such companies as are striving to give a wireless-telegraph service to the merchant marine and also for the handling of the overland business.
    The advantages of compulsory intercommunication have been ably set forth by the memoranda submitted by the officers of the War and Navy Departments, and we believe that as a matter of safety on the high seas there is nothing to equal wireless telegraphy, which enables the ship to keep in communication with shore and call for assistance or orders when in distress.
    "We therefore recommend and believe that there should be incorporated in the Service Regulations the provision that all vessels carrying the American flag should be required to be equipped with wireless stations within a reasonable period of time. This would work no hardship upon the shipping interests, as the expense of a wireless-telegraph installation is moderate in comparison with the expenditures for other safety devices on board passenger steamers."29
    Mr. James F. Hayden, representing the National Electric Signaling Co., submitted a brief which, in substance, was similar to the one submitted by the Marconi interests. When questioned by the Chairman, he stated that in his opinion the Marconi Co. was standing on its strict legal rights in refusing to communicate with a company which it considered to be infringing its patents. Analysis of the objections of the National Electric Signaling Co. reveals that the principal reason for their opposition was based on presumed financial injury resulting from impairment in the value of its patents.
    Mr. F. W. H. Clay, also an attorney for the National Electric Signaling Co., in a letter to Senator McCreary, a member of the Committee, stated in substance that the real effect of the proposed regulations was to restrict operations to the capabilities of the poorest apparatus and to chain our inventive genius to the inferior genius of many other nations. He stated that in the popular mind a great deal of mystery existed concerning radio, as well as an erroneous assumption that it was already a fully developed art, fixed in status, and viewed in that manner by signers of the convention. He concluded with the following paragraph:
It is axiomatic that laws not needed are detrimental. This is especially so in dealing with an art now new but liable to expand and develop beyond the dreams of the poet. It might be well by international law to force ships and shore stations to abstain from interfering with each other, leaving it to them to devise means for so doing, and to transmit messages from ships at sea at recognized rates. But I submit that if this is not as far as the law ought to go, and if more definite regulations are to be adopted, such adoption ought to be delayed until a full conference is had with experts skilled in this art, and until a careful consideration of the danger to restriction of invention and property rights can be had after a fuller understanding of the present condition of this art in our own country. The Constitution has proven itself capable of adoption to new conditions, because its provisions are general. This Convention is already out of date before adoption, because its provisions are specific, and specific to a state of the art which American inventors have already left behind.30
    Mr. Walter M. Massie, President and General Manager of the Massie Wireless Telegraph Co., a small concern with equipment installed in passenger vessels plying between the ports of New York, Providence, and Boston, wrote, stating:
    The principal question is that of "interference." Stations at several miles distance cause serious trouble in this respect, but wireless inventors are endeavoring to overcome the obstacle and believe it will be accomplished before long. The wireless treaty is dealing with the situation as it now is, and should it be ratified there will be no object for inventors to perfect this or other features of the system.
    Another important question is the requirement of all stations to exchange messages regardless of the system used. This point should be settled by the steamship managers themselves, and we are surprised they have not, before this, refused to install a system that would not communicate with other vessels irrespective of system used. It is for their benefit to know, for instance, the location of a derelict in their path of navigation; refusing such news is not only endangering their ships but the many lives they carry.31
    Brig. Gen. James Allen, USA, Chief Signal Officer of the Army; Lt. Comdr. Cleland Davis, USN, who had relieved Robison as Head of the Radio Division; Mr. Eugene T. Chamberland, Commissioner of Navigation; and Mr. Charles Earl, of the Department of Commerce and Labor, represented the Executive Branch of our Government at these hearings. They jointly submitted a very lengthy argument on behalf of the treaty and advocated that it be ratified without delay. Prominent among the many salient points of their argument was their conviction that the Convention, in its most important features, was peculiarly the work of the U.S. delegation. Not only was it an important and timely measure, in the line of progress in commerce and science and in the interest of the better safeguarding of life and property, but it was also an international accomplishment acceptable from our national point of view. Both in its principles and provisions, the treaty met with the strong support and approval of every branch of the Government having concern in the matter. They felt that ratification of the Convention by the United States would carry great weight with other powers who were considering it. Contrariwise, the influence of the United States, acquired in a marked degree by its representatives at the Conference, would likely be lost by delay.32
    In rebuttal of the suggested postponement of action until such time as the business of radio had developed to its broadest scientific possibilities, they considered this would prolong the period of uncertainty without providing any solutions upon which the future could be determined, since it was impossible to predict when its scientific aspects would undergo such important changes as would necessitate modification of the Convention's regulations. The Convention, as drafted, provided means of renunciation which required only a notice of 1 year for such renunciation to become effective. At any time the Government found the agreement detrimental to the Nation or to the disadvantage of its people or industries, this could be invoked. Considering that the enactment of Federal legislation for the control and regulation of radio was necessary, the ratification of the Convention would provide a basis, international in scope, upon which to frame such legislation.33
    Much of the argument of these officers was devoted to the desirability of compulsory intercommunication, claiming that the enforcement of this between ship and shore and between ships possessed a strong claim to recognition, since the principle involved had received the support of the representatives of 27 of the chief nations of the world. They noted that even the spokesmen of those nations which could not concur, because of contractual agreements, frankly acknowledged the fairness of compulsory intercommunications. They stressed that "compulsory intercommunication, internationally obligatory," provided the only positive method of assuring vessels in distress the benefits of radio and, therefore, should be demanded in the interests of humanity. The opening of the field to any and all users, and thus fostering competition by promoting its use and increasing the demand for it, was clearly calculated to stimulate invention and encourage development and improvement. In the case where different systems were involved and the choice between compulsory intercommunication or refusal to communicate presented itself, the former practice would obviously bring benefits to the greater number. Such a practice, permitting stations equipped with any form of existing equipment to communicate freely with the greatest number of other stations, would facilitate and extend intercourse, and thus manifestly be of immense importance to commerce and navigation. Contrariwise, arbitrary restriction upon such a practice, enforced in the interests of a particular system, would be to their detriment. By encouraging the application and promoting the development of radio, and thus tending to place merchant vessels in a state of organization, legislation on compulsory intercommunication would be important from a naval point of view, since such merchant ships, properly outfitted, could be made use of by the Navy as a source of information and for other purposes.34
    The supporters of the treaty were of the opinion that the only alternative to compulsory intercommunication was the existing situation in which the firms or individuals engaged in the operation of radio were free to refuse any message tendered by another system, regardless of the urgency of the message. They were prepared to cite instances to demonstrate that such a situation was intolerable. Under the terms of the agreement it would be impossible to restrict the application of the principle of compulsory intercommunication to calls of distress, and to so limit the principle by the legislation of a single government would prove ineffective. Even if practicable, to so restrict the principle by a new international agreement would be insufficient, as the operator of the receiving station could still be the judge of the urgency of the communication. Any such restriction upon the principle would fail to consider the rights of the general public "to free and untrammeled intercourse through the use of this instrumentality."35
    Concerning the desirability of preventing or minimizing interference, they observed that so far as was known there were no laws, either State or national, for the regulation of radio operations. Such being the existing situation, anyone was at liberty to use the ether when and how it pleased his fancy, utterly unmindful of the effects produced upon other stations, be they military, naval, commercial, or experimental. Repeated instances of interference and confusion often rendered communication uncertain or impossible.36
    In rebuttal of the statement by the Marconi interests that "the rates fixed by the regulations . . . are not remunerative," they pointed out that "it is a principle universally recognized by those who are engaged in what is termed 'a public employment or service' that they must carry on their business upon reasonable terms. The business of conducting a wireless telegraph service is an employment of this character. It is only to be expected, therefore, that in framing regulations for the Government of this business of international obligation so fundamental a proposition as this should be taken note of and provided for."37 They further stated that the only proof given in support of this contention was that the rates fixed were less than those then being charged by the Marconi Co., under which that firm maintained it had not been able to pay its operating expenses and earn a return on the capital invested and the value of its patents. This, it was felt, was far from proving that the rates fixed were not reasonable, which was the only question considered pertinent. It was surmised that the rates being charged by the Marconi Co. could be, and probably were, too high, but before it could be stated that the rates fixed would not yield a fair return various matters would have to be investigated, among others "the relation between capitalization and actual investment, the cost of operation, maintenance, and depreciation, as well as the probability of increased business as a result of the encouragement given to wireless communication by reason of the liberal policy of the agreement."38 In support of their opinions they advised that Mr. H. Babington Smith, one of the delegates of Great Britain, had stated to the Select Committee of the British House of Commons, with reference to the rates fixed: "These limits are considered somewhat high for ordinary stations, but each government is at liberty to fix lower limits for its own stations if it thinks it desirable."
    As to the reasonableness of these rates fixed they stated:
"That it was fixed by representatives of governments who are themselves operating wireless telegraph systems and who therefore may safely be presumed to know from experience what would be a proper charge.
The Convention itself provides that notwithstanding the maximum each government is nevertheless at liberty to authorize higher rates in the case of stations whose ranges exceed 800 kilometers or whose work is exceptionally difficult.
Notwithstanding the fact that the Marconi Company was represented both at the international conference and at the hearings before the Select Committee of the House of Commons, at neither of these places does it appear that any objection was made to the charges fixes."39
    In concluding their argument the Government representatives stated:
". . . . . that the agreement reached was designed to accomplish, within practical limits three great results--first, the effective establishment of general intercommunication between all systems and stations, without discrimination; second, the effective elimination of interference, intentional or unintentional, between stations; third, the opening of the service of wireless telegraphy to the public upon reasonable terms.
"The ratification of the agreement, it is believed, depends primarily upon whether in the judgment of the Senate, these three requirements are severally desirable."40
    Mr. John I. Waterbury, one of the United States plenipotentiaries to the Conference, did not appear before the Senate Committee but he submitted a statement in support of its ratification. Salient portions of this stressed the inevitability of international action, regardless of whatever incidents may have precipitated action as early as 1903. The rapid expansion and use of apparatus for employing the ether as a public highway for the transmission of radio communications resulted in confusion which threatened "serious curtailment of the vast benefits to humanity which the discovery had promised." With radio installations anywhere near the border he clearly saw that among the possibilities were international, complications, likely to be unpleasant and vexatious, if not worse. Aside from such contingent problems, there were existent wrongs directly emanating from the absence of proper regulation--wrongs that were becoming a form of anarchy repugnant to progress and "detrimental in high degree to public welfare in the broadest application of the term." He cited the friction between conflicting interests and the deliberate obstructions purposely placed in the way of attempts to avert danger to life and property at sea.41
    As he saw it, in the final analysis, all the discord, all the curtailing of the benefits to mankind in general from the new medium, all the savage obstructions to attempts to protect life and property on the high seas, all the chaos and lawlessness into which the practical use of radio was rapidly drifting, turned upon the two points on which there was nonagreement--"obligatory communication between stations regardless of system, and noninterference between stations."42

5.  THE  SHELVING  OF  THE  TREATY

The proponents of ratification might have continued on and on providing excellent reasons for Senate action, but these would have had little avail against the determined opposition of the commercial interests and their thousands of stockholders. The Senate committee's action on the convention was summed up in a news item in the 1 February 1908 issue of the Electrical World:
"It is stated from Washington that the Republican members of the Senate have reached a virtual agreement to take no action relative to the Wireless Telegraphy Treaty which has been pending before the Committee on Foreign Relations since almost the first day of the session. This conclusion is in spite of the fact that a dozen or more great powers have already approved the treaty and are now waiting for the cooperation of the United States. It is proposed to let the wireless Treaty remain in the committee indefinitely while the Navy Department watches the behavior of the wireless companies. If they refuse to transmit distress signals or show reasonable cooperation the treaty will be taken from its pigeon hole and ratified. The passage of the treaty would place all companies under international supervision.43
    While in retrospect it may be difficult to understand what appears to have been procrastination on the part of the Senate, that body was simply reflecting the prevailing business sentiment of the time. President Roosevelt had already irritated "big business" by antitrust actions and the Republican Party, in that election year, was little intent upon causing further antagonism. Its failure to foresee that its inertia was aiding the British-dominated Marconi Wireless Telegraph Co. of America was unfortunate, but in those early days of the new medium, when comparatively little was known about it, the committee's cautious approach to the problem should not be considered unusual. With the Marconi and National Electric Signaling interests arrayed against ratification, and with the strong cases presented by their leader, Mr. John W. Griggs, the result was as might be expected.
    Upon being informed of the intention of the Senate committee, the Secretary of the Navy addressed a letter to both branches of Congress, via the President, in which he recommended:
That such legislation be enacted as will insure freedom of official messages from interference. To accomplish this the law should make it a punishable offense--
        (a) To originate or transmit a false message purporting to be official;
        (b) To break in and interfere with any wireless station while it is transmitting an official message;
        (c) To refuse to cease or fail to cease sending a private wireless message when called upon to do so by an operator having an official message to be sent.
It will be noted that the enactment of law of the nature proposed would never seriously interfere with the legitimate working of commercial wireless installation. The restrictions suggested are intended to apply particularly to times of peace. During war, it is contemplated that much more extensive prohibitions would be exercised to be put into effect in the absence of legislation by executive proclamation as a belligerent right.
    In transmitting this to the Senate and the House of Representatives, on 13 February 1903, President Roosevelt added:
I cordially indorse all that is above stated and recommend the passage of such legislation as will accomplish the desired end.

6.  THE  STRUGGLE  FOR  EFFECTIVE  CONTROL  CONTINUES

The request of the Secretary of the Navy and its endorsement by President Roosevelt led to the immediate introduction of three separate measures for the control of radio; one in the Senate by Senator Hale and two in the House, one by Mr. Shephard and the other by Mr. Peters.
    The Hale bill, with a proposed effective date of 1 July 1908, contained clauses requiring all radio stations engaged in foreign or interstate communication to be federally licensed at a fee of $100 per annum for fixed stations and $5 per annum for ship stations; compulsory relay of messages regardless of ownership or equipment; and the answering of calls of any other licensed person or corporation by every person or corporation holding a Government license. It further provided that the President could abolish licenses in time of war; prescribed heavy fines or confiscation for violation of the above; and prescribed severe penalties for interference with messages sent or intended for Government officials, or for the malicious use or operations of wireless instruments under license by the Government.44
    In commenting on the bill introduced by Senator Hale, the Electrical World in an editorial in its issue of 21 March 1908 stated:
The several bills now before Congress for the regulation of wireless telegraphy are an indication of a condition which undoubtedly calls for some action eventually on the part of the Federal authority. None of the present bills, however, appears to represent a sufficiently mature or broad consideration of the subject to which they relate, and the Hale Senate bill is no less than pernicious in some of its provisions. With the ether as a common medium of transmission, which medium can be preempted at pleasure by a youth for amateur play, or at any moment rendered unavailable for serious purposes by malicious disturbances from stations of competing wireless companies, the need of some regulation of its use cannot be gainsaid. The Hale bill, however, would in effect make the ether an instrument of warfare and in time of peace an appendage of the military establishment. It was in this spirit that wireless regulation was discussed at the Berlin conference of 1906, and the international agreement there drafted appears to have very properly been pigeon holed by the committee of the Senate before which it came for consideration in the form of a treaty. But we now have in the Hale bill an attempt to enact by indirection some of the most criticised features of the Berlin agreement, which are rendered more objectionable by limitations in the sole interest of our military establishment. This attitude recalls the recommendation of a naval authority several years ago, that the coal fields of Eastern Pennsylvania--the source of supply of some millions of people--should be pre-empted for war purposes.45
    The editor went on to note that any regulation of radio should be based on recognition of the fact that it was a new art, still in its infancy, and for proper development freedom from every unnecessary restraint was desirable. Agreeing that government had a prescriptive right to an art given the world by a long line of inventors and scientists, such was hardly an inference that such a right could not be exercised "with clue regard to the use of the same art for nongovernmental purposes." Should there arise in time of peace an occasion of sufficient importance to require temporary preemption of the ether by the Federal Government, inconveniences occasioned thereby to private and commercial interests could be endured with some equanimity. However, assurances should be provided that interruptions of such a nature would be incident to matters of real significance, and that private interests would not be sacrificed to routine communications which could just as well be transmitted by other means, or by trivial messages among officials. To avert a gross abuse of the radio privilege by inconsiderate or overofficious persons, there should be a definition of the nature of Government communication by radio, as well as a requirement that a copy of every communication be filed for critical examination of its real importance. Thus, any peacetime preemption of the ether by the Government should only be for emergency purposes, and officials should be held strictly responsible for the proper exercise of such a privilege. In common with all the peaceful arts of civilization, radio would, in time of war, be relinquished to military usage. "But as a recompense," he observed, "it should not be held in abeyance in time of peace in accordance with what appears to be a policy for the exaltation of the military over the other classes of American people, which classes would be the ones to give their resources and offer up their lives in national defense, and not even balk if the nations should become committed through vainglorious bravado to a war of foreign aggression." While he felt that none would deny the need of some radio regulation, its character should be such as to be subject to careful consideration in the interests of the medium and the people as a whole. He suggested the creation of a commission by Congress to investigate the matter and make recommendations, but cautioned that membership should be so constituted so that neither military nor bureaucratic elements would dominate it. It was hoped that no hasty congressional action would be taken before the subject of regulation in the United States had been exposed to "much broader and wider consideration than is evidenced by the bills thus far offered in Washington."46
    Another item in the same issue quoted the views of the Marconi and United companies, which characterized the Hale bill, as introduced in the U.S. Senate on 6 March 1908, as the third in a series of efforts to circumvent a pledge of the leaders of the Senate, who, it had been stated, had assented to shelving action on the ratification sought by the American delegation to the International Radio Telegraphic Convention held in Berlin, November 1906, it being known to them that both the United Wireless Telegraph Co. and the Marconi interests were bitterly opposed to the Hale measure in the form presented.47
    Also brought out in the same article was that there were two other bills before the House, those of Messrs. Shephard and Peters, which, if adopted, would have the effect of making radio a Government monopoly.48
    Mr. S. S. Bogart, vice president of the United Wireless Telegraph Co., voiced objection to a section of the Peters bill which specifically provided that the use of 700 and 800-kc. frequencies were prohibited except for official stations, concerning which he said, "The passage of this bill would throw out all long-distance commercial stations and practically make wireless telegraphy inoperative."
    One part of the Shephard measure provided that the originating or transmitting of false messages purporting to be official be a penal offense, to which the companies gave their approval, but they strenuously opposed its sections 5 and 6, involving the breaking in or interfering with radio stations transmitting official messages, which was not well understood by them. They felt it would be extremely difficult, if not impossible, for the Federal or for State governments to pass laws preventing interference. Such attempted legislation on the part of those lacking adequate knowledge of a subject with which they were incompetent to deal was, to them, entirely unnecessary.
    Vice President Bottomley, of the Marconi Co., expressed himself to the effect that the above bills represented an attempt of the Government to create a monopoly and that the "Government was controverting its past policy of keeping clear of the field of commercial enterprise."
    Thus while the Government departments continued in their efforts to effect Federal regulation, and had the support of President Roosevelt, the commercial interests, with their large number of stockholders, remained sufficiently powerful to forestall legislation. The Congress adjourned without voting on any of the three bills.

___________________
    1 Supra, ch. VII.
    2 Files, Bureau of Equipment, National Archives, Washington, D.C.
    3 Letter, dated 22 Oct. 1906, Bureau of Equipment endorsement on Commander in Chief, U.S. Atlantic Fleet, letter, dated 9 Aug. 1906, files, Bureau of Equipment, National Archives, Washington, D.C.
    4 Ibid.
    5 Letter, dated 14 May 1905, Chief of the Bureau of Equipment to Comdr. F. M. Barber, USN (retired), files, Office of Naval Records and Library. National Archives, Washington, D.C.
    6 Letter, dated 16 Jan. 1905, Chief of the Bureau of Navigation to Comdr. F. M. Barber, USN (retired); letter, dated 15 Aug. 1906, Chief of the Bureau of Equipment to Chief of the Bureau of Navigation; letter, dated 21 Aug. 1906, from Secretary of the Navy to Rear Adm. H. N. Manney, USN (retired), files, Bureau of Equipment, National Archives, Washington, D.C.
    7 Letter, dated May 1906, Acting Secretary of the Navy to Rear Adm. H. N. Manney, USN (retired); letter, dated 30 Apr. 1906, Assistant Secretary of Commerce and Labor to Secretary of the Navy; letter, dated 10 May 1906, Secretary of the Navy to Rear Adm. H. N. Manney, USN (retired), files, Bureau of Equipment, National Archives, Washington, D.C.
    8 Letter, dated 10 May 1906, Secretary of the Navy to Rear Adm. H. N. Manney, USN (retired); letter, dated 14 May 1906, Chief of the Bureau of Equipment to Comdr. F. M. Barber, USN (retired), files, Bureau of Equipment, National Archives, Washington, D.C.
    9 "The Convention Adopted by the Second International Radio Telegraphic Conference," Berlin, Germany, 1906 (app. F).
    10 Ibid.
    11 Letter, dated 17 Nov. 1906, Ambassador C. Tower to the Secretary of State, files, Bureau of Equipment, National Archives, Washington, D.C.
    12 Letter, dated 25 Nov. 1906, Rear Adm. H. N. Manney, USN (retired), to the Chief of the Bureau of Equipment, files, Bureau of Equipment, National Archives, Washington, D.C.
    13 Letter, dated 17 Nov. 1906, Ambassador C. Tower to the Secretary of State, files, Bureau of Equipment, National Archives, Washington, D.C.
    14 Ibid.
    15 Ibid.
    16 Ibid.
    17 Ibid.
    18 Ibid.
    19 Ibid.
    20 Ibid.
    21 Excerpts from these documents, the "International Radio Convention," the "Additional Engagement," the Final Protocol, and the Service Regulations are reproduced in app. F.
    22 "The Convention Adopted by the Second International Radio Telegraphic Conference," Berlin, Germany, 1906 (app. F).
    23 Electrical World (McGraw-Hill, New York), 27 Apr. 1907, p. 828.
    24 "Memorandum Concerning the International Wireless Telegraph Convention, Concluded at Berlin, Nov. 3, 1906," placed before the Committee on Foreign Relations of the Senate of the United States, p. 4, files, Bureau of Equipment, National Archives, Washington, D.C.
    25 Statement of Rear Adm. H. N. Manney, USN, (retired), dated 25 Nov. 1906, in reference to executive A, 60th Cong., "An International Wireless Telegraph Convention With Service Regulations Annexed Thereto, a Supplemental Agreement, and a Final Protocol. All signed at Berlin on November Third 1906 by the Delegates of the United States and Those of Several Other Powers," p. 13, files, Bureau of Equipment, National Archives, Washington, D.C.
    26 Senate committee hearings on "International Wireless Telegraph" before Committee on Foreign Relations, US Senate, during the First sess., 60th Cong-Senate Committee Hearings, 1906-12," vol. 10.
    27 Ibid.
    28 The United Wireless Co. was the successor to the American De Forest Wireless Telegraph Co. C. C. Wilson had, by this time, ousted A. White from the control of this company.
    29 Hearings on "International Wireless Telegraph" before Committee on Foreign Relations, US Senate, during the 1st sess., 60th Cong.--"Senate Committee Hearings, 1906-12," vol. 10.
    30 Ibid.
    31 Ibid.
    32 Ibid.
    33 Ibid.
    34 Ibid.
    35 Ibid.
    36 Ibid.
    37 Ibid.
    38 "Memorandum Concerning The International Wireless Telegraph Convention, Concluded at Berlin, Nov. 3, 1906," before the Committee on Foreign Relations of the Senate of the United States, p. 12.
    39 Senate Committee hearings before Committee on Foreign Relations on "International Wireless Telegraph," 1st sess., 60th Cong., 1906-1912. vol. 10.
    40 "Memorandum Concerning the International Wireless Telegraph Convention, Concluded at Berlin, Nov. 3, 1906," before the Committee on Foreign Relations of the Senate of the United States.
    41 Memorandum dated 21 Jan. 1908 concerning International Wireless Telegraphy Convention concluded at Berlin, Nov. 3, 1906, by Mr. John I. Waterbury. Senate committee hearings before Committee on Foreign Relations, 1st sess., 60th Cong.
    42 Ibid.
    43 Electrical World (McGraw-Hill Publishing Co., New York), 1 Feb. 1908.
    44 Electrical World, vol. LI, No. 12, 21 Mar., 1908, pp. 589-590. "Wireless Companies Oppose Hale Bill" (McGraw-Hill Publishing Co., Inc., New York).
    45 Ibid.
    46 Ibid.
    47 Ibid.
    48 Ibid.
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