(Bloomberg Law) — Swifties, as Taylor Swift fans are known, received a crash course in anti-monopoly advocacy this week when the Ticketmaster portal for the singer’s concert tickets crashed and caused hours-long delays.
After waiting for hours only to fail to get tickets in a Nov. 15 online portal for select fans, some of them took to social media to vent en masse about the Beverly Hills-based company’s oft-criticized market power and chokehold in live entertainment ticketing. Waves of their frustration intermixed with armchair antitrust analysis. Censure and ridicule of the company grew louder when Ticketmaster decided to cancel public ticket sales planned for Friday.
The issue is morphing into a matter beyond social media chatter. Prominent federal lawmakers, including Senate antitrust subcommitee chair Amy Klobuchar (D-Minn.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.) are joining in. State attorneys general are vowing to investigate. Klobuchar said Friday her committee will hold a hearing on Ticketmaster by the end of the year.
Ticketmaster, which consumer advocates estimate controls 70% of primary ticketing sales, is no stranger to criticism. But the latest firestorm resurfaces at a time of heightened antitrust focus among policymakers and the Biden administration’s whole-of-government approach to cracking down on anticompetitive practices.
Few expect Ticketmaster, a subsidiary of Live Nation Entertainment (NYSE:), to be imminently broken up. But Congressional scrutiny, reinvigorated public campaigns and celebrities’ public outcry could sustain the break-up-Ticketmaster drumbeat that would likely not go unnoticed by the Justice Department’s antitrust regulators.
“These efforts are really giving a direct line to the DOJ on how these harms are affecting people—not just customers, but artists, the competing ticket services, venues, and workers,” said Krista Brown, a senior policy analyst at the anti-monopoly nonprofit American Economic Liberties Project.
Ticketmaster has disputed claims about its monopoly power. It controls only about 30% of the market for concert ticket sales, according to comments made by Live Nation Entertainment CFO Joe Berchtold on NPR.
“The staggering number of bot attacks as well as fans who didn’t have invite codes drove unprecedented traffic on our site, resulting in 3.5 billion total system requests – 4x our previous peak,” Ticketmaster said in a statement Thursday. It estimated 15% of purchase attempts experienced issues.
‘Look What You Made Me Do’
Klobuchar’s letter to Live Nation lobs a series of questions, conveying concerns about the lack of competition in the ticketing industry. In 2019, she asked the Justice Department to investigate the company.
“Ticketmaster’s power in the primary ticket market insulates it from the competitive pressures that typically push companies to innovate and improve their services,” Klobuchar wrote. “That can result in the types of dramatic service failures we saw this week, where consumers are the ones that pay the price.”
Other House lawmakers joining Ocasio-Cortez in haranguing the company were Bill Pascrell (D-N.J.), Ilhan Omar (D-Minn.), and David Cicilline (D-R.I.).
“Daily reminder that Ticketmaster is a monopoly, its merger with LiveNation should never have been approved, and they need to be reigned in,” Ocasio-Cortez tweeted Tuesday. “Break them up.”
The Justice Department’s antitrust division approved the 2010 Live Nation-Ticketmaster merger despite concerns the deal would drive independent concert halls out of business and increase prices.
Attorneys general from Tennessee and North Carolina separately said earlier this week they will look into potential competition and consumer protection issues after receiving complaints.
Pennsylvania’s attorney general also invited consumers to submit complaints to his office.
The chances of DOJ enforcement under the existing consent order from the 2010 Live Nation-Ticketmaster merger are “high,” said Eleanor Tyler, a Bloomberg Law legal analyst.
Justice doesn’t have to conduct the heavy lifting of bringing a new case, and can instead build on the existing decree, she said. That option would be a faster and less work-intensive approach, Tyler said.
“I think that the administration that’s looking to unwind the Insta and WhatsApp deals could conceivably try to unwind it,” Tyler said, referring to an ongoing Federal Trade Commission lawsuit that seeks to undo Meta’s acquisition of the two social media platforms.
Breakups are a rare and significant government undertaking. But Live Nation appears to have kept Ticketmaster’s operations mostly separate, with differing focuses on ticketing and venue management, Tyler said.
They weren’t direct competitors when DOJ approved the merger, and they’re less closely tied to each other now than if they’d merged supply chains and workforces, she said.
A division spokesperson declined to comment.
Public campaigns against Ticketmaster have stood out for their populist appeal.
A break-up-Ticketmaster letter-writing campaign launched last month by advocacy groups, including the American Economic Liberties Project, has garnered over 38,000 letters. More than two-thirds were sent in the days following the sales debacle earlier this week.
“I continue to be amazed by the revolution in the way the public perceives antitrust,” said Gwendolyn Cooley, Wisconsin’s assistant attorney general for antitrust. “Antitrust used to be obscure, only something very erudite people talked about. Now we have popular interest in this area of law.”
Zoey Jordan Salsbury, a student at Seattle University School of Law, joined the letter campaign after running into repeated delays on Nov. 15 in her attempt to buy a ticket in the presale queue.
“I was trying to buy tickets, but then I got very angry about antitrust law, so now I’m trying to get Swifties angry about Ticketmaster and write to the DOJ,” Jordan Salsbury said.
‘I Knew You Were Trouble’
The Justice Department approved the 2010 merger conditioned on certain behavioral remedies. Ticketmaster vowed not to discriminate against venues when they chose not to use the company’s ticketing platform. The combined company also agreed to divest a subsidiary and license Ticketmaster software to a competitor.
In 2020, the DOJ won a ruling to strengthen some consent decree terms, after arguing Ticketmaster had repeatedly violated them.
“There’s a bigger problem in antitrust with behavioral remedies generally,” said Kevin Erickson, director of the Future of Music Coalition, an advocacy group participating in the letter campaign. “They force competitors, artists, and venues who don’t have a lot of resources or a sophisticated understanding of what is and isn’t legal to perform this unpaid labor of being the cops and monitoring for violations.”
Ticketmaster also tussled in private litigation over its market powers, but recent lawsuits have largely been unsuccessful. Most ended up in arbitration, although at least two are still pending at federal courts.
Ticketmaster’s dominance in the primary ticket-selling market drives competitors to look for gains in the secondary, reselling market, Erickson said. But Ticketmaster has a presence there, too, and at times has released tickets directly into the secondary market. That can drive up prices even more, critics say.
“If you’re a ticketing company trying to spend limited development budget to build innovative technology, you’re mostly shut out of primary sale marketplaces, so you’re focused on getting really good at facilitating resale,” Erickson said. “That reinforces the dysfunction in a way, because it becomes an arms race between resellers and technologies meant to keep stuff off the secondary market.”
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