Populist Antitrust and the 1927 Radio Act

In policy circles of Washington DC, in academia, and among advocates and lobbyists, there has been growing attention to the role of antitrust enforcement versus regulation in today’s economy (see, e.g., Shapiro in Int J Ind Organ 61:714–748, 2017). Various populist arguments seek an expanded role for antitrust law, as proponents seek to control the perceived political and free speech dangers associated with market concentration. These new populists are particularly interested in large, content-laden companies such as Google, Facebook, and broadcast and cable firms. Strong interest in content companies is, of course, not new. This essay explores different political, economic, and philosophical regimes at play when the United States chose to enact the Radio Act of 1927 and regulate, rather than leave to antitrust controls, the emerging radio industry. By examining antitrust at the dawn of the Radio Act of 1927, there are lessons to be learned for the political treatment of today’s social media, broadcast, cable, and telecommunications industry. In particular the story of the Radio Act of 1927 highlights two historically recurring political themes: (1) a longstanding, near-universal political goal to control content and (2) the tension between selecting an ex post antitrust enforcement regime versus an ex ante regulatory regime to control economic concentration and power. It is this second theme that is primarily explored here.