In a botched Nov. 15 presale of concert tickets to pop star Taylor Swift’s upcoming tour, millions of Swift’s fans crashed the website of ticket seller Ticketmaster, leading the company to cancel its public sale. Now Ticketmaster’s parent company, Live Nation Entertainment, is the subject of renewed criticism from members of Congress who call the company a monopoly and faces an ongoing investigation by the Department of Justice.
The Justice Department investigation is part of a larger effort by the department and the Federal Trade Commission to pursue a robust agenda of antitrust initiatives in the past several years. The New York Times reported that the Justice Department had already been pursuing an antitrust investigation into Live Nation prior to the botched ticket sale on Nov. 15.
Live Nation has dramatically increased its federal lobbying efforts since 2017, spending $1.2 million on federal lobbying in 2021 alone. Lobbying disclosures show the company pushed back on efforts to increase oversight of ticketing regulations and secondary sales. The company also launched “astroturf” campaigns, funding groups that advocate for the freedom of its customers to resell tickets.
Live Nation did not respond to a request for comment.
After the Taylor Swift concert ticket debacle in November, Ticketmaster faced renewed criticism from lawmakers. The U.S. Senate announced hearings on Live Nation’s dominance over the live music industry. A group of 31 House Democrats signed a letter to Attorney General Merrick Garland on Nov. 17 seeking to reverse the 2010 merger of Ticketmaster and Live Nation, writing that the merger “strangled competition for ticketing in the live entertainment marketplace.”
At the state level, attorneys general in states including Tennessee, Pennsylvania and Nevada have said they will launch probes into whether antitrust laws were broken in Ticketmaster’s presale of Taylor Swift tickets.
Prominent members of Congress, including Rep. Alexandria Ocasio-Cortez (D-N.Y.), have called Ticketmaster a monopoly and urged that it be broken up. Sens. Amy Klobuchar (D-Minn.) and Mike Lee (R-Utah) announced that the Senate Judiciary Committee’s subcommittee on antitrust will hold a hearing on the lack of competition in the ticketing industry.
One of the most prominent critics of Ticketmaster in Congress is Rep. Bill Pascrell, Jr. (D-N.J.). Pascrell first introduced the Better Oversight of Secondary Sales and Accountability in Concert Ticketing Act, or BOSS Act, in 2009 after fans seeking to buy tickets to a Bruce Springsteen concert in New Jersey from Ticketmaster.com were redirected to ticket reselling website, TicketsNow.com, which offered the same tickets at inflated prices. TicketsNow, which is now defunct, was acquired by Ticketmaster in 2008.
Lobbying records reviewed by OpenSecrets show that in the first three quarters of 2022 Live Nation spent at least $540,000 lobbying against federal legislation including the BOSS Act, which Pascrell reintroduced in 2019. Live Nation also reported lobbying the U.S. House and Senate on “Issues related to anti-trust enforcement” more broadly.
Live Nation also lobbies at the state level, since each state has its own laws and regulations about ticketing. This year, Live Nation spent $90,000 lobbying at the state level in Florida, helping to defeat a bill in the state’s legislature that would have loosened restrictions on the resale of tickets by consumers. Such legislation is typically supported by ticket resellers in the secondary ticket market, such as StubHub and SeatGeek.
“A company that consistently abuses its power”
After the Live Nation-Ticketmaster merger, Live Nation and rival StubHub funded nonprofits that appeared to be grassroots consumer rights groups, but were actually intended to influence ticketing legislation favorable to the companies. These so-called “astroturf” campaigns included the Live Nation-backed Fans First Coalition, which purported to be an anti-scalping group, and StubHub-supported Fan Freedom Project, which said it advocated for consumers’ freedom to resell tickets.
Dean Budnick, co-author of the book “Ticket Masters: The Rise of the Concert Industry and How the Public Got Scalped,” said that there is no major legislation at the national level regulating ticket reselling, and that lobbying from ticket resellers like StubHub at the state level has “defanged” most state laws regulating scalping.
Krista Brown, senior policy analyst for the American Economic Liberties Project, an organization promoting antitrust enforcement, told OpenSecrets she is “very hopeful” that Live Nation could be broken up.
“This is a company that consistently abuses its power,” Brown wrote in an emailed statement to OpenSecrets, citing a 2015 controversy in which Ticketmaster hacked the computer servers of a rival ticketing startup to steal information, and a 2018 investigation by the Canadian Broadcasting Corporation that revealed that Ticketmaster was operating a multi-million-dollar ticket reselling program that recruited professional “scalpers” in violation of the company’s own limits on ticket-buying.
Brown said that even with a strong antitrust lawsuit, “judges have the ultimate say in whether a company will be broken up.”
David Balto, an antitrust lawyer who served in the Department of Justice and as the assistant policy director in the Bureau of Competition at the Federal Trade Commission, testified before the U.S. Senate in 2009, warning that the impending merger between Live Nation and Ticketmaster would raise “serious competitive concerns and could potentially lead to significantly higher prices” for consumers.
In an interview with OpenSecrets, Balto said that “one of the most harmful effects of monopoly is the deterioration in quality and the lack of innovation.”
“When you’re a monopolist, you lead the easy life. You don’t have competitors biting at your heels to force you to run faster. And so you become sloven, lazy, and irresponsive to consumer demand, and all those things are true about Ticketmaster,” Balto said.
Balto said that even if a lawsuit seeking to break up Ticketmaster and Live Nation were to fail in court, it would still be important as part of a “long game” in antitrust enforcement.
“It’s a mistake to focus on whether they win this one case or they lose this one case. I think what you’re going to see is a pattern of cases brought to really strengthen the scope and bounds of antitrust law. And to the extent that they’re not successful, maybe this will educate us, and educate Congress, about the need to expand the boundaries of the antitrust laws,” he said.
Ticketmaster and Live Nation’s 2010 merger
Ticketmaster was founded in Phoenix, Ariz., in 1976 as a computerized ticketing company. After expanding and eventually acquiring rival companies like Ticketron in 1991, Ticketmaster became the largest ticketing company in the world. Prominent business executives like Microsoft co-founder Paul Allen and the Pritzker family, which owns the Hyatt Hotel empire, have owned a majority stake in the company at different times.
During the 1990s, rock band Pearl Jam battled with Ticketmaster over ticket prices and service fees. Members of the band testified before Congress in 1994 and filed a complaint with the Justice Department that Ticketmaster was monopolizing the market.
The next year, after trying unsuccessfully to tour without working with Ticketmaster, Pearl Jam gave up the fight, with band manager Kelly Curtis telling the Washington Post, “I regret to say that it is impossible for a major rock group to put on a national tour under the current circumstances without Ticketmaster.”
Ticketmaster and concert promoter Live Nation merged in 2010, with the approval of the Justice Department, becoming Live Nation. The merger was opposed at the time by prominent Senate Democrats including Sen. Chuck Schumer (D-N.Y.), who was then a member of the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights.
Part of the merger was a 10-year consent decree preventing Live Nation from pressuring concert venues to contract with Ticketmaster by threatening to withhold access to the artists it promotes if the venues used another ticketing service. The consent decree was set to expire in 2020 but was extended for another five years after an investigation by the Justice Department found that Live Nation had repeatedly violated the agreement.
Since 2011, Ticketmaster has used the “dynamic pricing” model of ticket sales, in which prices are increased in response to demand from consumers. Dynamic pricing is commonly used by airlines, hotels and ride-sharing companies like Uber. It has also been adopted by popular artists including Taylor Swift, Paul McCartney and Bruce Springsteen.
Budnick said that dynamic pricing is intended to give the artist a bigger share of revenue than ticket resellers, often referred to as “scalpers.” He said that while critics of dynamic pricing often blame Ticketmaster, it is a system that requires the cooperation of artists.
“Ticketmaster isn’t doing anything without the approval of the artist, artist’s manager, or agent,” Budnick said in an interview with OpenSecrets.
“Ticket prices are set by the artist. That is the bottom line,” Budnick said. But he also acknowledged that factors like the decline of sales of recorded music since 1999, as well as the impact of the COVID-19 pandemic on the live music industry, have made it difficult for some artists to stay afloat.
Budnick said that the service fees, which can be more than 30% of the ticket price, are determined by Ticketmaster, not the artists.
“That aspect of the concert-going experience is a little bit out of control,” he said.
In 2019, the year prior to the outbreak of the COVID-19 pandemic, Live Nation held 40,000 events around the world and sold 485 million tickets through Ticketmaster.
On Nov. 3, Live Nation announced its revenue for the third quarter of 2022 was $6.2 billion, up 63% from the third quarter of 2019.
According to Pollstar, a trade magazine, the average ticket price for the top 100 North American tours in 2022 was $108.20, up 17% from the 2019 average of $91.86.
Federal agencies challenge corporate mergers and acquisitions
The Justice Department has pursued a number of antitrust cases during President Joe Biden’s administration, but a string of losses have tempered hopes that antitrust lawsuits alone can break up monopolies. In October, the Justice Department was successful in convincing a federal judge to block the $2.2 billion merger of book publishers Penguin Random House and Simon & Schuster.
Since June 2021, the Federal Trade Commission has been chaired by Lina Khan, an attorney who first gained prominence as a student at Yale Law School, writing an influential law review article describing Amazon.com as a monopoly. Khan is a prominent advocate of the New Brandeis movement of antitrust policy, named after early 20th century Supreme Court Justice Louis Brandeis, a critic of monopolization.
At a Wall Street Journal CEO summit on Dec. 6, Khan joked that Ticketmaster’s bungled sale of Taylor Swift concert tickets “converted more Gen Z’ers into antimonopolists overnight than anything I could have done.” She added that when firms dominate an industry, “they become too big to care,” leading them to invest less in their services and products.