That’s the Ticket: Promoting Competition and Protecting Consumers in Live Entertainment (U.S. Senate Committee on the Judiciary)

Hearing	That’s the Ticket: Promoting Competition and Protecting Consumers in Live Entertainment
Committee	U.S. Senate Committee on the Judiciary
Date	January 24, 2023

 

Hearing Takeaways:

• The Market Dominance of Live Nation Entertainment: The hearing considered the market dominance of Live Nation Entertainment. Live Nation Entertainment is a ticketing and live event conglomerate that owns and operates (among many things) Ticketmaster (which is a primary and secondary ticketing company), Live Nation (which is an event promotion company), and several live events venues. Most Committee Members, Mr. Groetzinger, Mr. Mickelson, Mr. Nuzzo, Ms. Bradish, and Mr. Lawrence contended that Live Nation Entertainment’s market dominance is driving up live event ticket prices, restricting choices for ticketing and live event stakeholders (including artists), and reducing innovation. They specifically criticized Live Nation Entertainment’s handling of the recent ticket launch for Taylor Swift’s concert tour and asserted that the launch’s problems could be attributed to Live Nation Entertainment’s market dominance. Live Nation Entertainment President and CEO Joe Berchtold disputed the aforementioned charges and stated that Live Nation Entertainment operates within a competitive market.
  • 2010 Merger of Ticketmaster and Live Nation: Live Nation Entertainment is the product of a 2010 merger between Ticketmaster and Live Nation. Most Committee Members, Mr. Mickelson, and Ms. Bradish criticized the U.S. Department of Justice (DoJ) for having permitted the merger and asserted that this merger has harmed competition. They specifically highlighted how Live Nation had begun competing with Ticketmaster within the primary ticketing space prior to the merger and that this merger had reduced competition. Ms. Bradish attributed the DoJ’s decision to not challenge the 2010 merger to their low risk tolerance and their inability to get witnesses to testify about the merger in court. She commented that many potential witnesses had feared that such testimony would lead to retaliation from Live Nation Entertainment.
  • The DoJ’s Consent Decree for Live Nation Entertainment: The DoJ imposed a consent decree on Live Nation Entertainment as a condition for approving the 2010 merger between Ticketmaster and Live Nation. The DoJ subsequently modified and renewed this consent decree in 2019 and alleged that Live Nation Entertainment had engaged in threats and retaliations (in violation of its initial consent decree). Most Committee Members, Mr. Groetzinger, and Ms. Bradish criticized the DoJ’s decision to renew this consent decree and called on the U.S. to pursue increased oversight and reforms to Live Nation Entertainment. Mr. Berchtold asserted however that Live Nation Entertainment did not engage in threats or retaliation and had amended its practices to address competition concerns. He also stated that Live Nation Entertainment had agreed to extend its consent decree because it had no interest in being perceived as defending allegations of threats and retaliation.
  • Consideration of Structural Remedies to Live Nation Entertainment: Several Committee Members, Mr. Groetzinger, and Ms. Bradish argued that behavioral remedies would not be sufficient for addressing Live Nation Entertainment’s anticompetitive practices and called on the U.S. to pursue structural remedies for Live Nation Entertainment. Ms. Bradish suggested that the DoJ could pursue a consummated merger challenge under Section 7 of the Clayton Antitrust Act of 1914 or a monopolization case under Section 2 of the Sherman Antitrust Act of 1890.
  • Increased U.S. Antitrust Enforcement: Several Committee Members and Ms. Bradish expressed support for providing U.S. antitrust enforcement agencies with more resources to pursue monopoly cases and for legislation (such as the Competition and Antitrust Law Enforcement Reform Act) to strengthen and clarify U.S. antitrust laws.
• Concerns that Live Nation Entertainment was Abusing its Market Power: The hearing specifically focused on whether Live Nation Entertainment has been abusing its market space within the ticketing, event venue, and event promotion space. Live Nation Entertainment President and CEO Joe Berchtold denied these allegations of anti-competitive practices on the part of Live Nation Entertainment.
  • Concerns over Anti-Competitive Practices within the Primary Ticketing Space: A key area of concern during the hearing was the market dominance of Ticketmaster within the primary ticketing space. Primary ticketers are the parties that contract directly with event promotors and event venues to sell tickets for events. Committee Members and most of the hearing’s witnesses noted how Ticketmaster dominates the primary ticketing market and that this dominance is especially pronounced within the large arena and stadium space. They stated that Ticketmaster’s lack of competition reduced its incentives to innovate, which harmed consumers. Mr. Berchtold acknowledged that while Ticketmaster controls most of the primary ticketing market, he asserted that Ticketmaster now faced more competition within the primary ticketing market as compared to 2010. He testified that Ticketmaster had lost market share since its 2010 merger with Live Nation Entertainment. He commented that the presence of numerous credible alternative ticketing companies has resulted in Ticketmaster getting less of the economic value in ticketing contracts each year. Moreover, Sen. Amy Klobuchar (D-MN), Sen. John Cornyn (R-TX), Mr. Groetzinger, Mr. Mickelson, and Ms. Bradish raised concerns over how Live Nation Entertainment often engaged in long-term ticketing agreements with other event venues, which reduced competition for ticketing services. Mr. Berchtold acknowledged that concert venues that own ticketing rights will seek to maximize these rights through entering into long-term exclusive agreements with primary ticketing companies. He testified that event venues had been receiving increasing shares of the revenue from ticketing contracts with their primary ticketing companies over the past decade. He commented that this trend suggested that the primary ticketing marketplace is very competitive.
  • Concerns over Anti-Competitive Practices within the Secondary Ticketing Market: Several Committee Members, Mr. Groetzinger, Mr. Mickelson, and Mr. Nuzzo also expressed concerns over Ticketmaster’s entrance into the secondary ticketing market. Secondary ticketing refers to the resale of already purchased tickets. Sen. Josh Hawley (R-MO) raised concerns that Live Nation Entertainment is attempting to control the ticketing resale market through their digital ticketing system SafeTix. He asserted that Ticketmaster is requiring ticket buyers to use the SafeTix system to make other secondary ticketing platforms more inconvenient for users. Mr. Berchtold argued however that the SafeTix system is necessary for combatting fraud and noted how secondary ticket buyers could use non-Ticketmaster secondary platforms to purchase Ticketmaster tickets.
  • Concerns over Anti-Competitive Practices within the Event Venues Space: Several Committee Members, Mr. Groetzinger, Mr. Mickelson, and Mr. Lawrence raised concerns over how Live Nation Entertainment owns and operates several event venues. They accused Live Nation Entertainment of forcing artists that performed at their event venues to use the company’s ticketing and event promotion services. Mr. Berchtold testified that Live Nation Entertainment operated approximately 200 of the approximately U.S.’s 4,000 event venues. He added that the largest event venues tended to be sports arenas and stadiums, which were generally controlled by either the sports teams or the owners of the sports teams. 
  • Concerns over Anti-Competitive Practices within the Event Promotions Space: Sen. Klobuchar, Mr. Groetzinger, Mr. Mickelson, and Mr. Lawrence raised concerns that Live Nation’s dominance in the events promotion space deterred many event venues from working with different ticketing companies. Event promotors make guaranteed payments to artists, contract with event venues to hold events, market shows, put tickets on sale, and produce shows. They stated that these event venues are often afraid that their use of competitor ticketing services could cause them to lose access to Live Nation promoted acts. They also alleged that Live Nation Entertainment uses their event promotion business to cross-subsidize their ticketing business. They stated that the lack of a necessity for profitability in event promotion gave Live Nation Entertainment an unfair competitive advantage over other event promotors.
• Other Ticketing and Live Event-Related Policy Topics and Trends: The hearing further considered other topics and trends currently impacting the ticketing and live event industries.
  • Hidden Ticket Fees and “All In” Ticket Pricing Proposals: Committee Members and the hearing’s witnesses expressed concerns over the high level of fees that were added on top of ticket base prices. There was broad support for “all-in” pricing, which would entail displaying ticket price with all fees included prior to the ticket checkout process. Mr. Lawrence stated however that the inability of artists to influence the fees would make it difficult for consumers to determine who was responsible for excessive ticket prices. He remarked that fees should therefore be listed out as part of any “all in” pricing system.
  • Prevalence of Ticketing Bots: A key area of concern during the hearing was the use of ticketing bots, which are computer programs meant to quickly obtain primary tickets put on sale for the purposes of reselling those tickets on the secondary market for profit. Committee Members and Mr. Mickelson criticized Ticketmaster for failing to adequately combat ticketing bots. Sen. Marsha Blackburn (R-TN) and Sen. Richard Blumenthal (D-CT) specifically criticized Ticketmaster for failing to report ticketing bot attacks to the U.S. Federal Trade Commission (FTC) and commented that these reporting issues demonstrated that the company was not serious about the issue. Mr. Berchtold testified that Ticketmaster had invested over $1 billion over the previous decade to combat ticketing bots and had developed the Verified Fan product to combat ticketing bots. He recommended that U.S. policymakers broaden the scope of the Better Online Tickets Sales (BOTS) Act of 2016 and increase enforcement fo the law.
  • Speculative Ticketing: Committee Members, Mr. Berchtold, and Mr. Mickelson raised concerns over the practice of speculative ticketing, which refers to the practice where a ticket seller sells a ticket despite not having the right to said ticket. Mr. Mickelson asserted that either Congress or states need to ban the practice of speculative ticket selling. He called this practice deceptive and immoral. Sen. Blackburn raised concerns that Ticketmaster’s failure to detect ticketing bots and enforce ticketing bot prohibitions was leading bad actors to engage in speculative ticketing.
  • Ticket Transferability Restrictions: A key area of debate during the hearing involved proposals to restrict the transferability of event tickets. Sen. John Kennedy (R-LA), Mr. Mickelson, and Mr. Berchtold expressed support for such restrictions and stated that these restrictions would eliminate all incentives for ticketing bots. Sen. Thom Tillis (R-NC), Sen. Mike Lee (R-UT), Sen. Josh Hawley (R-MO), Mr. Groetzinger, Mr. Nuzzo, and Mr. Bradish expressed opposition to these proposals on the grounds that they would leave consumers with no options if they could not attend a show and for harming competition. Sen. Lee and Mr. Groetzinger noted how many primary ticketing companies often start as secondary ticketing companies and commented that transferability restrictions would effectively make such companies illegal. Mr. Nuzzo also noted how the U.S. Government Accountability Office (GAO) had found that a large percentage (if not a majority) of tickets on the resale market were going for under their market values. Of note, Mr. Lawrence suggested that the U.S. could decide to only permit ticket transfers at face value. 
  • Ticketmaster’s Data Collection Practices: Sen. Blackburn and Sen. Hawley raised concerns that Ticketmaster is forcing ticket buyers to make Ticketmaster accounts so that they could harvest and sell this data to advertisers. Mr. Berchtold testified however that Ticketmaster did not use account data for marketing purposes if an account was established for the sole purpose of receiving a ticket. 
  • Ancillary Ticketing Revenue Concerns: Mr. Lawrence noted how Live Nation Entertainment is able to take a commission on his band’s merchandise sales while his band is unable to take a commission on Live Nation Entertainment’s ancillary revenues (including concessions, alcohol, and parking). He stated that the U.S. ought to address inconsistencies around ancillary ticketing revenues and noted how most event promoters will take 20 percent or more of his band’s gross merchandise sales per event. He called this situation one-sided as bands could not collect on the sales of event venues.

Hearing Witnesses:

1. Mr. Joe Berchtold, President and Chief Financial Officer, Live Nation Entertainment, Inc.
2. Mr. Jack Groetzinger, Chief Executive Officer, SeatGeek, Inc.
3. Mr. Jerry Mickelson, Chief Executive Officer and President, Jam Productions, LLC
4. Mr. Sal Nuzzo, Senior Vice President, The James Madison Institute
5. Ms. Kathleen Bradish, Vice President for Legal Advocacy, American Antitrust Institute
6. Mr. Clyde Lawrence, Singer-Songwriter, Lawrence

Member Opening Statements:

Full Committee Chairman Dick Durbin (D-IL):

• He discussed how the live event and ticketing industry had garnered significant attention at the end of 2022 when Ticketmaster’s systems had failed during the presale for singer Taylor Swift’s new concert tour.
  • He noted how these failures had left millions of fans in virtual queues for hours waiting to purchase concert tickets.
• He remarked that Ticketmaster’s recent issues are symptomatic of a larger problem and asserted that the ticketing and live event markets lack competition and are dominated by a single entity: Live Nation Entertainment.
• He recounted how Life Nation Entertainment and Ticketmaster had merged in 2010 and noted how the deal had combined the U.S.’s largest ticketing company with the U.S.’s largest event promoter.
• He mentioned how the DoJ and several states attorneys general had sued to block this merger and noted that this merger was ultimately permitted under a consent decree.
  • He indicated that this consent decree had imposed several conditions and divestitures designed to ensure competition in ticketing and live event markets.
• He contended however that this consent decree appears to have proven ineffective and stated that Live Nation Entertainment has consolidated its dominant position in the ticketing and live event markets.
  • He commented that this consolidation has harmed artists and fans.

Full Committee Ranking Member Lindsey Graham (R-SC):

• He remarked that the hearing would seek to learn why Ticketmaster’s systems had recently failed and would explore ways to prevent such a failure from reoccurring.
  • He expressed optimism that the hearing would provide an opportunity for bipartisan problem solving.

Sen. Amy Klobuchar (D-MN):

• She noted how over 75 percent of U.S. industries have become more concentrated over the previous 20 years.
• She mentioned how she had recently worked on a bipartisan and bicameral basis to update the U.S.’s merger fee statute and commented that this update would provide U.S. antitrust enforcement agencies with more funding to pursue cases and anticompetitive practices.
  • She also mentioned how the U.S. had recently enacted legislation to permit state attorneys general to keep cases in the states where the cases had been brought.
• She predicted that the DoJ would pursue more antitrust investigations and cases soon.
• She then remarked that concert tickets have become increasingly unaffordable as a result of marketplace consolidation.
  • She asserted that marketplace competition would be critical for reducing ticket prices and for addressing ticket marketplace “fiascos.”
• She noted how Live Nation Entertainment currently dominates 70 percent of the U.S. ticket market and owns many major event venues.
  • She also mentioned how Live Nation Entertainment often engages in long-term ticket agreements with other event venues.
• She further highlighted how Live Nation Entertainment dominated the live event promotions space and stated that many event venues are now afraid to use other companies over concerns that they would lose access to desired acts.
  • She asserted that Live Nation Entertainment meets the definition of a monopoly and commented that the company does not need to make threats to achieve its desired outcomes.
• She also discussed how Ticketmaster had recently entered the ticket resale market, which enables the company to charge fees on the initial sale of a ticket and subsequent resales.
• She remarked that the live event experience has become prohibitively expensive for too many fans.
  • She mentioned how a GAO study had found that fees account for 27 percent of the price of a live event ticket.
• She also stated that Live Nation Entertainment’s monopoly power impacts the service of ticket delivery for concert goers.
• She remarked that the hearing would seek to enlighten the public about Live Nation Entertainment’s practices, support the DoJ’s investigations into Live Nation Entertainment, and support the development of bipartisan legislation.

Sen. Mike Lee (R-UT):

• He discussed how the U.S. ticketing industry is complex and involves artists, agents, promotors, event venues, primary and secondary ticketing companies, and fans.
  • He commented that the U.S. industry space has offered a natural experiment for evaluating the efficiency claims of merging parties and the federal government’s efforts to protect competition using antitrust laws.
• He recounted how the DoJ Antitrust Division’s 2010 investigation of the then-proposed merger between Ticketmaster and Live Nation had concluded that the merger would eliminate “recent but quickly growing” head-to-head competition in the marketplace for ticketing services.
• He noted however that the DoJ had decided to approve the merger of Ticketmaster and Live Nation on the condition that the merging companies agree to a consent decree that addressed two concerns.
  • He indicated that the first concern was that the combination of the two companies would allow for the merged firm to tie the provision of ticketing services and concert promotion.
  • He indicated that the second concern was that the new combined entity would retaliate against event venues that did not comply with their wishes.
• He stated that while Ticketmaster and Live Nation had claimed that the consent decree was acceptable, he asserted that the merged entity has since appeared to have engaged in anticompetitive practices that violate consent decree.
  • He noted how there were news reports that the DoJ had opened a new investigation into the conduct of Ticketmaster and commented that Congress has an oversight role to play regarding this topic.
• He asserted that Congress should consider whether the DoJ should have permitted Ticketmaster and Live Nation to have merged in the first place.

Witness Opening Statements:

Mr. Joe Berchtold (Live Nation Entertainment, Inc.):

• He remarked that Live Nation Entertainment has long operated with an “artist-first” business model that was focused on enabling artists to perform live and connecting the artists with their fans.
  • He commented that the artist-fan connection was the foundation of the live entertainment industry, the source of nearly all commercial value, and the top thing that public policy should seek to protect.
• He testified that Live Nation Entertainment has invested billions of dollars to fund artists globally, including $9 billion in 2022 alone.
• He testified that the company has invested over $1 billion in capital to improve the Ticketmaster system since 2010.
  • He stated that much of these investments were in technologies to eliminate fraud and to ensure that ticket scalpers using bots did not prevent fans from obtaining tickets.
• He remarked that Ticketmaster was best in class in terms of conducting large onsales, marketing concerts, preventing frauds, and ensuring that real fans could obtain tickets.
• He then discussed how primary ticketing companies (including Ticketmaster) do not set ticket prices, do not decide how many tickets would be put up for sale, do not decide when tickets would be put up for sale, and do not set service fees.
  • He indicated that ticket pricing and distribution strategies are determined by artists and their teams.
  • He also indicated that service fees (even if they are called ticketing fees) are retained mainly by the event venues and testified that Ticketmaster’s retained share of service fees has been falling “steadily” over time.
• He then disputed the assertion that the U.S. ticketing market is less competitive today than at the time of the Ticketmaster-Live Nation Entertainment merger.
  • He noted how the DoJ had alleged in 2009 that Ticketmaster’s market share was over 80 percent.
• He stated that the emergence of the “enormous” secondary ticketing market has changed the ticketing landscape and commented that Ticketmaster only has a “modest” share of the secondary ticketing market.
• He also remarked that Ticketmaster now faces more competition within the primary ticketing market as compared to 2010.
  • He commented that new and highly capitalized competitors (including SeatGeek, AEG’s AXS, and Eventbrite) have since entered the primary ticketing space.
  • He also noted how Ticketmaster continues to face competition from Tickets.com and Paciolan within the primary ticketing space.
• He testified that Ticketmaster has lost market share since its 2010 merger with Live Nation Entertainment.
  • He commented that the presence of numerous credible alternative ticketing companies has resulted in Ticketmaster getting less of the economic value in ticketing contracts each year.
• He remarked that legislation could address several problems within the U.S. ticketing industry and attributed many of these problems to “industrial-scale” ticket scalping.
  • He noted how ticket scalping is a $5 billion industry within the U.S. concert space alone and commented that this industry is fueled by practices that ran counter to the interests of artists and their fans.
• He stated that the recent problems associated with the ticket launch for Taylor Swift’s concert tour has highlighted the need to address problems within the ticketing space.
  • He testified that the ticketing bot traffic that Ticketmaster had experienced during this launch was three times greater than the company had ever experienced.
• He stated that the spike in ticketing bot traffic during the recent ticket launch for Taylor Swift’s concert tour had forced Ticketmaster to slow down and pause its sales.
• He provided an apology on behalf of Ticketmaster to both Taylor Swift and her fans for the problems with the launch and asserted that Ticketmaster must improve its operations.
• He then remarked that Ticketmaster accepts its role as the “first line of defense” against ticketing bots. 
  • He referred to the ticketing bot situation as an “ever escalating arms race” and asserted that industrial scalpers using ticketing bots and cyberattacks to unfairly gain tickets had contributed to the recent Taylor Swift ticket issues.
• He recommended that U.S. policymakers enlarge the scope of the BOTS Act of 2016 and increase enforcement.
  • He also called for the enactment of categorial prohibitions on fraudulent ticketing practices, including deceptive URLs and ticket sale offerings before said tickets were put on sale in the primary market.
• He further called on the U.S. to mandate “all-in” pricing so that customers would see the full cost of their tickets from the start.

Mr. Jack Groetzinger (SeatGeek, Inc.):

• He remarked that he has drawn three main conclusions from his 13 years working in the U.S. live entertainment industry.
  • He indicated that the first conclusion was that the industry’s lack of robust competition has “meaningfully” stunted innovation and that this stunted innovation had harmed consumers.
  • He indicated that the second conclusion was that event venues fear losing Live Nation-promoted concerts if they did not use Ticketmaster.
  • He indicated that the third conclusion was the only way to restore competition within the U.S. live entertainment industry is to break up Ticketmaster and Live Nation.
• He remarked that the best way to address the U.S. live entertainment industry’s challenges is to ensure that there exists robust competition and asserted that such competition does not currently exist.
• He stated that this robust competition does not exist because Live Nation Entertainment currently controls the world’s most popular entertainers, routes most of the large tours, operates the ticketing systems, and owns many of the event venues.
  • He commented that this power over the entire live entertainment industry enables Live Nation Entertainment to maintain its monopolistic influence over the primary ticketing market.
• He noted how Live Nation Entertainment is the product of the merger between Ticketmaster and Live Nation and mentioned how the two companies had entered into a consent decree at the time of their merger.
  • He explained that this consent decree was supposed to ban Ticketmaster from threatening or retaliating against event venues through withholding Live Nation concerts.
• He asserted however that this consent decree has failed and noted how a 2019 investigation from the DoJ had found that Live Nation Entertainment had repeatedly violated the consent decree since its inception.
  • He mentioned how the DoJ had found “numerous” examples of Live Nation Entertainment threatening and retaliating against event venues that did not contract with Ticketmaster.
• He noted how Ticketmaster’s estimated market share is currently over 70 percent of the U.S. primary ticketing market and how Ticketmaster is the primary ticketing provider for over 80 percent of NBA, NFL, and NHL teams.
  • He also mentioned how Live Nation is the largest promotor of major concerts and highlighted how the company had promoted over 73 percent of the top 25 tours in the U.S. in 2021.
• He remarked that major U.S. event venues are afraid that moving their primary ticketing business away from Ticketmaster would cause them to lose revenue earned from Live Nation concerts.
  • He commented that Live Nation had both directly and indirectly told event venues that this would be the case through public pronouncements, private communications, and subsequent retaliations against event venues that had signed deals with competitor ticketing companies.
• He indicated that the DoJ had concluded that event venues throughout the U.S. have come to expect that refusing to contract with Ticketmaster would result in the venue receiving fewer or no Live Nation concerts.
• He remarked that behavioral remedies would not be sufficient for addressing Live Nation Entertainment’s anticompetitive practices and called on the U.S. to pursue structural remedies for Live Nation Entertainment.
  • He specifically called for the dissolution of Ticketmaster and Live Nation.

Mr. Jerry Mickelson (Jam Productions, LLC):

• He discussed how event promoters work with artist agents and managers to route tours into markets across the U.S.
  • He explained that event promoters make guaranteed payments to artists, contract with event venues to hold events, market shows, put tickets on sale, and produce shows.
• He indicated that while Live Nation Entertainment could make up for financial losses on a show through operating income from ticketing and sponsorships, he noted that his promotion company could not do the same.
  • He also stated that his promotion company’s competitor (Live Nation Entertainment) could earn money from selling tickets to his promotion company’s concerts.
• He recounted how he had testified before the Committee in 2009 that the merger between Ticketmaster and Live Nation would create a business with “extraordinary” market power and clout.
  • He mentioned how he had warned the Committee that a successful merger of the two companies would result in the suppression or elimination of competition in many segments of the live entertainment industry.
• He remarked that the Ticketmaster and Live Nation merger constitutes “vertical integration on steroids” and asserted that Live Nation Entertainment is using its dominance in one market to expand its power and dominance in another market.
• He discussed how arena-level concerts had previously been his promotion company’s most profitable segment and noted how his company’s number of arena-level concerts has declined since 1996.
  • He asserted that the merger between Live Nation and Ticketmaster has accelerated this decline and accused Live Nation Entertainment of driving independent promotion companies out of the arena-level concert segment.
• He stated that Live Nation Entertainment has effectively eliminated competition for indoor arena shows through purchasing national indoor tours and arenas and for their outdoor amphitheaters, threatening financial penalties on a tour deal if the artist wanted to work for his promotion company, and paying artists 100 percent or more of the gross ticket sales.
  • He further noted how Live Nation-managed artists typically only perform for Live Nation-promoted shows at the arena level.
• He remarked that Live Nation Entertainment is now pursuing music theaters and clubs of all sizes so that it could control the entire music industry.
  • He highlighted how Live Nation Entertainment had added 61 theaters and 41 clubs to their “already large arsenal of venues” between 2010 and 2021.
• He mentioned how Live Nation Entertainment’s former CEO had stated on a 2016 earnings call that one of the company’s biggest goals was to convince artists to agree to integrate the primary and secondary ticketing markets.
• He suggested that the Committee consider two antitrust U.S. Supreme Court decisions that had found that vertical integration had played a prominent role in restricting competition.
  • He indicated that the first decision was the U.S. Supreme Court’s 1948 United States v. Paramount Pictures, Inc. decision, which had led to the abolishment of block booking and had forced movie studios to sell off their theater chains.
  • He indicated that the second decision was the U.S. Supreme Court’s 1992 Eastman Kodak Co. v. Image Technical Services, Inc., which found that power gained through some advantage could create a liability if a seller exploits their dominant market position to expand into additional markets.
• He concluded that Live Nation Entertainment’s control of ticketing, promotion, and artist management is suppressing competition.

Mr. Sal Nuzzo (The James Madison Institute):

• He discussed how his state of Florida is home to numerous sports teams, facilities, arenas, and event venues and highlighted how most of these venues will serve as concert sites when not in use for sporting events.
  • He noted how sports and live entertainment was a $6.5 billion market in Florida and a $133 billion market in the U.S.
• He discussed how Ticketmaster dominates 80 percent of the primary ticketing market and stated that Ticketmaster could leverage this dominance through services fees, exclusivity requirements, and other practices that impose costs on consumers.
• He remarked that the debate surrounding the ticketing market centered around what a person actually obtains when they purchase a ticket to a live event.
• He noted how some would argue that a ticket buyer is simply renting a space in a venue and that the lease would be subject to terms and conditions.
  • He argued that this view rests upon a misguided assumption that the commodity is the venue (and not the sports event or the performer).
• He contended that consumer welfare is very clearly defined and reflective of the issues and challenges within the live event and ticketing space.
• He disputed Live Nation Entertainment’s assertion that their growth has enabled the company to innovate and make advancements that benefit consumers.
  • He stated that the recent problems during the launch of tickets for Taylor Swift’s new concert tour had simply revealed how the live event and ticketing industry’s lack of competition has corroded innovation and distorted the market.
• He reiterated his contention that consumer welfare could be clearly defined within the live event and ticketing industry and asserted that there are actual harms to consumers stemming from anticompetitive practices.

Ms. Kathleen Bradish (American Antitrust Institute):

• She remarked that the Live Nation Entertainment contains elements of both traditional monopolies and dominant online platforms.
• She stated that the dominance of Live Nation Entertainment across the live entertainment supply chain creates both the incentive and the ability for the company to limit competition so that it can protect its market position.
  • She commented that Live Nation Entertainment could use its market power to exclude smaller and independent concert promoters, concert venues, ticket resellers, and ticket brokers.
• She remarked that Live Nation Entertainment’s monopoly has created problems for customers, including higher ticket prices and fees, reduced quality, less choice, and less innovation.
  • She commented that Live Nation Entertainment’s market dominance has particularly harmed smaller artists and smaller rivals in the live entertainment supply chain.
• She then stated that U.S. policymakers should learn from the failure of the conduct remedies that were a condition of the DoJ’s clearance for the 2010 merger between Ticketmaster and Live Nation.
• She noted how the DoJ had concluded in 2020 that Live Nation Entertainment has repeatedly violated the conditions of its consent decree.
  • She lamented however that the DoJ had not pursued structural remedies against Live Nation Entertainment and had instead opted to amend and extend the company’s consent decree.
• She asserted that Live Nation Entertainment’s amended consent decree does nothing to change the company’s anticompetitive incentives.
• She called on the DoJ to pursue new enforcement actions against Live Nation Entertainment to obtain effective structural relief.
  • She suggested that the DoJ could pursue a consummated merger challenge under Section 7 of the Clayton Antitrust Act of 1914 or a monopolization case under Section 2 of the Sherman Antitrust Act of 1890.
• She stated that the separation of ticketing from event promotion and event venues would eliminate Live Nation Entertainment’s incentives to stifle competition.
  • She also stated that reducing the market share of Ticketmaster through spinoffs would address Ticketmaster’s incentives to limit competition within the secondary ticketing market.
• She remarked that protecting consumers, artists, and smaller rivals from Live Nation Entertainment’s harmful conduct would require multiple policy tools, including strong antitrust enforcement against the company and legislative action.
• She stated that U.S. policymakers should consider three actions a part of a multi-pronged approach for addressing Live Nation Entertainment’s monopoly.
  • She first recommended U.S. policymakers consider standards that would enable antitrust enforcement agencies to challenge vertical mergers as effectively as horizontal mergers.
  • She then recommended that Congress pass legislation (such as the Competition and Antitrust Law Enforcement Reform Act) to strengthen and clarify U.S. antitrust laws.
  • She lastly recommended that U.S. policymakers consider the merits of an oversight regime to facilitate access to and transparency in ticketing.

Mr. Clyde Lawrence (Lawrence):

• He discussed how his band faced “lopsided” deal mechanics and asserted that Live Nation Entertainment constitutes a monopoly.
• He noted how Live Nation Entertainment often acts as three things simultaneously: the event promoter, the event venue owner, and the ticketing company.
• He stated that this vertical integration enables Live Nation Entertainment to extract unnecessary costs from artists through various venue fees and that artists lack the necessary leverage to negotiate these fees down.
  • He asserted that this vertical integration makes it impossible for artists to fairly negotiate with Live Nation Entertainment when the company acts as an event promoter.
• He further noted how Live Nation Entertainment can collect additional money from concert goers through ticketing fees via the Ticketmaster platform. 
• He indicated that artists that play shows at Live Nation Entertainment-owned event venues are required to use Ticketmaster as their ticketing service.
  • He testified that artists have no say or visibility into the ticketing fees charged by Live Nation Entertainment and added that artists do not receive any portion of ticketing fees.
• He acknowledged that many of the problems being discussed at the hearing are not exclusive to Live Nation Entertainment and commented that his band has had several positive experiences with parts of the company.
• He contended that Live Nation Entertainment is not the “enemy” and is simply the largest player in the U.S.’s broken live entertainment and ticketing market.
  • He noted how Live Nation Entertainment can recoup all of its costs before the show hit its profit point while his band’s show must be profitable for it to recoup its costs.
  • He noted how Live Nation Entertainment does not provide transparency regarding the various line items that they charge to artists.
  • He noted how Live Nation Entertainment can take a commission on his band’s merchandise sales while his band cannot take a commission on Live Nation Entertainment’s ancillary revenues (including concessions, alcohol, and parking).
  • He noted how Live Nation Entertainment can set high ticket fees without any transparency or input and highlighted how the U.S. government has capped fees in other industries.

Congressional Question Period:

Full Committee Chairman Dick Durbin (D-IL):

• Chairman Durbin asked Mr. Lawrence and Mr. Berchtold to indicate who sets event ticket prices.
  • Mr. Lawrence stated that artists have input into the base prices for their event tickets. He stated however that artists do not have input into the service fees that are charged with tickets. He testified that event venues have told his band that Ticketmaster sets these fees.
  • Mr. Berchtold stated that artists set ticket prices and that event venues set ticket fee levels.
• Chairman Durbin interjected to ask Mr. Berchtold to indicate whether Live Nation Entertainment controls the event venues that set ticket fee levels.
  • Mr. Berchtold testified that Live Nation Entertainment operated approximately 200 of the U.S.’s approximately 4,000 event venues.
• Chairman Durbin asked Mr. Berchtold to indicate whether Live Nation Entertainment’s event venues are among the largest event venues in the U.S.
  • Mr. Berchtold answered no. He stated that the largest event venues tend to be sports arenas and stadiums, which are generally controlled by either the sports teams or the owners of the sports teams.
• Chairman Durbin then asked Mr. Groetzinger to recount SeatGeek’s experience becoming the primary ticketing company for the Barclays Center. He noted how Ticketmaster had previously been the Barclays Center’s primary ticketing company.
  • Mr. Groetzinger mentioned the Barclays Center had experienced a decrease in concerts from Live Nation Entertainment artists after SeatGeek had become the venue’s primary ticketing company. He testified that the Barclays Center’s management team had subsequently requested that Ticketmaster become the primary ticketing company for concerts at the Barclays Centers (and that SeatGeek remain the primary ticketing company for Brooklyn Nets basketball games). He stated that this request was not financially feasible, which had led SeatGeek to terminate its relationship with the Barclays Center.
• Chairman Durbin asked Mr. Groetzinger to indicate whether Live Nation Entertainment had exploited its market power to pressure the Barclays Center to use Ticketmaster as their primary ticketing company.
  • Mr. Groetzinger stated that there was an uptick in concerts from Live Nation Entertainment artists at the Barclays Center after the company resumed its partnership with Ticketmaster.
• Chairman Durbin interjected to ask Mr. Berchtold to indicate whether Mr. Groetzinger’s recounting of SeatGeek’s experience with the Barclays Center is accurate.
  • Mr. Berchtold noted how another venue had opened in the marketplace during the time when SeatGeek had become the primary ticketing company for the Barclays Center. He indicated that this second venue competed with the Barclays Center for the shows that did not go to Madison Square Garden. He noted that the number of shows that went to the Barclays Center from all of the major event promoters had gone down as a result of this increased competition for event venues. He testified that he is unaware of any allegations that Live Nation Entertainment had changed its concert booking practices for the Barclays Center and stated that he had closely monitored this matter given the profile of the New York market. He testified that Live Nation Entertainment has records showing that it had not engaged in retaliation against the Barclays Center in its placement of shows.
• Chairman Durbin provided Mr. Groetzinger with an opportunity to respond to Mr. Berchtold’s account of the Barclays Center episode.
  • Mr. Groetzinger commented that he does not have additional information to provide on Live Nation Entertainment’s actions relating to the Barclays Center. He mentioned however that the DoJ in 2019 had found “numerous” instances of Live Nation Entertainment threatening and retaliating against event venues once the event venues had moved away from Ticketmaster. He stated that Live Nation Entertainment’s threats to event venues are real and documented.
• Chairman Durbin asked Mr. Mickelson to indicate whether his company has observed challenges with ticketing bots.
  • Mr. Mickelson remarked that ticketing companies are supposed to have solutions to ticketing bots. He stated that Ticketmaster’s inability to handle these bots is “unbelievable.” He asserted that ticketing bots could not be solely blamed for the problems surrounding the launch of concert tickets to the recent Taylor Swift concert tour.
• Chairman Durbin then mentioned how Mr. Berchtold’s testimony had called for “all-in” ticket pricing, fighting deceptive URLs, and creating a civil action under the BOTS Act of 2016. He asked Ms. Bradish to provide her reaction to these suggestions.
  • Ms. Bradish remarked that none of Mr. Berchtold’s suggestions would address the antitrust problems within the U.S. ticketing and live event industry. She stated that the market power of Live Nation Entertainment has provided the company with an incentive to exclude competition in all of its markets. She commented that while Mr. Berchtold’s suggestions might be good ideas, she asserted that these suggestions do not address the threats posed by Live Nation Entertainment’s monopoly within the U.S. ticketing and live event industry.

Sen. Mike Lee (R-UT):

• Sen. Lee noted how the DoJ’s 2010 antitrust complaint against the then-proposed merger between Ticketmaster and Live Nation had alleged that Ticketmaster had possessed an 83 percent market share with no single competitor having more than 4 percent of the market. He also noted how this 2010 complaint had alleged that Live Nation had been Ticketmaster’s biggest customer and had begun to compete directly with Ticketmaster for ticketing services. He highlighted how Live Nation had acquired 16 percent of the market share for the ticketing space within just two months of entering the space. He asked Ms. Bradish to explain why the DoJ had permitted the consummation of the Ticketmaster and Live Nation merger in 2010. He commented that there had appeared to exist a strong case at the time that merger would be anticompetitive. He argued that the DoJ’s 2010 approval of the Ticketmaster and Live Nation merger did not constitute a failure of U.S. antitrust laws and was instead a failure of enforcement. He asked Ms. Bradish to indicate whether she agreed with this view.
  • Ms. Bradish provided two reasons for why the DoJ would decide to pursue a consent decree rather than a direct court challenge of a proposed merger. She indicated that the first reason that the DoJ would pursue a consent decree is that court cases involve risk. She commented that it is very difficult for the DoJ to successfully challenge vertical mergers in court. She indicated that the second reason that the DoJ would pursue a consent decree is that court cases require witnesses. She stated that many event venues, event promoters, and other independent rivals had been afraid to testify against Live Nation Entertainment out of a fear of retaliation. She commented that it had been difficult for the DoJ to convince these companies to agree to testify in court.
• Sen. Lee asked Ms. Bradish to clarify whether the DoJ had viewed the merger between Ticketmaster and Live Nation as a horizontal merger.
  • Ms. Bradish remarked that the merger between Ticketmaster and Live Nation had involved both horizontal and vertical components. She stated that the DoJ’s conduct remedy is meant to address the merger’s vertical component.
• Sen. Lee then noted how Live Nation Entertainment’s consent decree includes a divestiture and prohibitions on tying ticketing services with concert promotion. He asked Ms. Bradish to discuss how these provisions have worked in practice.
  • Ms. Bradish stated that the DoJ’s investigation that culminated in the 2020 modification to Live Nation Entertainment’s consent decree had found repeated violations of the consent decree. He mentioned how the DoJ had identified six instances where the consent decree had been violated. He also mentioned how the DoJ had stated that there was a “pervasive environment” of fear of retaliation. She concluded that this episode demonstrates that consent decrees are limited in their ability to stop companies from acting upon their incentives.
• Sen. Lee provided Mr. Berchtold with an opportunity to respond to the previous comments.
  • Mr. Berchtold acknowledged how the DoJ had alleged six issues in 2019 involving Live Nation Entertainment and indicated that these allegations had led the DoJ and Live Nation Entertainment to decide to extend their consent decree. He asserted that Live Nation Entertainment does not engage in threats or retaliation and that Live Nation Entertainment has sought to align its business interests with those of artists. He testified that these aligned interests had made Live Nation Entertainment “comfortable” with extending its consent decree with the DoJ. He then discussed how several dynamics have changed since the 2010 merger between Ticketmaster and Live Nation, which he attributed to differing interpretations across parties. He testified that Live Nation Entertainment has eliminated the practice of tying ticketing services and concert agreement for event venues. He commented that the elimination of this practice would prevent the perception of threats and retaliation associated with bundling done at the request of event venues. He also testified that Live Nation Entertainment has established monitors to ensure that any venue employee or other party could confidentially report any issues.
• Sen. Lee asked Mr. Berchtold to indicate whether Live Nation had been a motivated and capable competitor to Ticketmaster at the time of 2010 merger between the two companies.
  • Mr. Berchtold remarked that Live Nation had experienced challenges in building its own ticketing system around the time of its 2010 merger with Ticketmaster. He stated that Live Nation’s inability to develop its own ticketing system had been a driving factor in Live Nation’s decision to pursue a merger with Ticketmaster.
• Sen. Lee noted how Live Nation’s ticketing system prior to the merger with Ticketmaster had sold 6 million tickets and had gained significant market share within two months of launching.

Sen. Amy Klobuchar (D-MN):

• Sen. Klobuchar asked Ms. Bradish to indicate whether the U.S. ticketing market had been more competitive when Ticketmaster had been a separate company from Live Nation and had competed with Live Nation on ticketing.
  • Ms. Bradish answered affirmatively. She stated that Live Nation’s demonstrated ability to rapidly increase its market share would have been beneficial in checking the market dominance of Ticketmaster. She commented that the loss of Live Nation’s independent ticketing business had reduced competition within the U.S. ticketing market.
• Sen. Klobuchar noted how artists, promoters, and event venues have raised concerns that Live Nation Entertainment’s dominance in the concert tour promotion space could pressure event venues to use Ticketmaster’s primary ticketing service exclusively. She asked Mr. Berchtold to explain how Ticketmaster contains 80 percent of the ticketing contracts for major event venues in the U.S.
  • Mr. Berchtold testified that Live Nation Entertainment’s policy is to not pressure, threaten, or retaliate against event venues by using content as part of the ticketing discussion.
• Sen. Klobuchar interjected to ask Mr. Mickelson to indicate whether Live Nation Entertainment had ever leveraged its power as the leading concert promoter to pressure event venues to use Ticketmaster for primary ticketing.
  • Mr. Mickelson remarked that the biggest fear of venue owners and managers is that the termination of their ticketing contracts with Ticketmaster would lead them to lose access to content. He commented that this fear of losing access to content came from implicit threats. He also discussed how the Target Center in Minneapolis is ticketed by AXS and the Xcel Energy Center in St. Paul is ticketed by Ticketmaster. He stated that the number of shows at the Xcel Energy Center “far exceed” the number of shows at the Target Center. He indicated that most of the shows at the Xcel Energy Center are Live Nation-promoted shows. He further indicated that the Target Center has very few Live Nation-promoted shows.
• Sen. Klobuchar then stated that Live Nation Entertainment will eliminate competitive pressures through locking event venues into multi-year contracts. She asked Mr. Berchtold to address how Live Nation Entertainment’s competitors could enter the concert space given how Live Nation Entertainment had tied up 80 percent of major concert venues with multi-year contracts.
  • Mr. Berchtold first noted how the 80 percent figure comes from a 2008 DoJ study. He stated that Live Nation Entertainment’s current market share of primary ticketing services for major concert venues is “substantially” lower than 80 percent.
• Sen. Klobuchar interjected to asked Mr. Berchtold to estimate Live Nation Entertainment’s current market share of primary ticketing services for major concert venues.
  • Mr. Berchtold commented that there exist a variety of ways for estimating the primary ticketing industry’s market share depending on which venues are included. He estimated that Live Nation Entertainment’s current market share of primary ticketing services is between 50 percent and 60 percent. He then acknowledged that concert venues that own ticketing rights will seek to maximize these rights through entering into long-term exclusive agreements with primary ticketing companies. He indicated that these ticketing agreements tend to last between three and five years. He testified that event venues had obtained increasing shares of the revenue from ticketing contracts with their primary ticketing companies over the past decade. He commented that this trend suggests that the primary ticketing marketplace is very competitive. He also highlighted how SeatGeek had experienced significant success in terms of adding roughly 15 percent of NFL and NBA teams as primary ticketing clients between 2018 and 2022. He commented that SeetGeek’s success demonstrates the dynamism of the primary ticketing market.
• Sen. Klobuchar asked Ms. Bradish to address whether exclusive multi-year contracts between event venues and primary ticketing companies are reducing competition.
  • Ms. Bradish remarked that the exclusive multi-year contracts between event venues and primary ticketing companies are reducing competition. She stated that longer exclusivity periods in contracts lead to greater risks of competitive effects. She also remarked that the ability of primary ticketing companies to obtain multi-year deals suggests that the companies possess significant market power. She concluded that long-term exclusive contracts between event venues and primary ticketing companies make it more difficult for new primary ticketing companies to enter the market.
• Sen. Klobuchar then asked Mr. Groetzinger to indicate whether the fact that Live Nation Entertainment maintains both a primary ticketing business and a concert promotion business has made it difficult for SeatGeek to compete with Ticketmaster for primary ticketing services.
  • Mr. Groetzinger answered affirmatively. He stated that many of SeatGeek’s prospective venue clients are reluctant to pursue negotiations with SeatGeek on primary ticketing services out of a fear that the use of SeatGeek could cause them to lose access to Live Nation-promoted shows. He also stated that Live Nation Entertainment has recently been extending the length of its multi-year exclusive contracts from five years to ten years. He remarked that these longer exclusivity periods would exacerbate the competition issues in the U.S. primary ticketing market and asserted that the U.S. must swiftly address these issues.
• Sen. Klobuchar then asked Mr. Lawrence to address the size of the fees imposed on his band’s recent concert tickets.
  • Mr. Lawrence stated that Ticketmaster will typically impose a fee on his band’s concert tickets between 40 percent and 50 percent of the ticket’s base price. He testified that his band had observed fees as high as 82 percent of the concert ticket’s base price. He stated that his band does not know the size of these fees until the tickets go on sale.
• Sen. Klobuchar asked Mr. Berchtold to address why Ticketmaster has not done more to reduce its fees.
  • Mr. Berchtold stated that fees were set by event venues. He testified that Live Nation Entertainment-owned venues has fees that were consistent with other event venues in the marketplace. He indicated that these fees cover the cost of venue operations.
  • Mr. Lawrence testified that the event venues that his band contracts with have told his band that they have no control over fees. He added that many of these event venues will tell his band that they cannot predict the fee amounts.
• Sen. Klobuchar asked Ms. Bradish to indicate whether it would be helpful for there to exist transparency in ticketing fees.
  • Ms. Bradish answered affirmatively.

Sen. John Cornyn (R-TX):

• Sen. Cornyn first applauded Congress’s work to help music venues survive the COVID-19 pandemic. He then stated that while Congress should address issues within the U.S. ticketing and live entertainment industry, he expressed uncertainty as to whether U.S. antitrust laws are best suited to address these issues. He then asked Mr. Berchtold to confirm that Live Nation Entertainment maintains an “artist first” business model.
  • Mr. Berchtold remarked that Live Nation Entertainment focused on enabling artists to connect with their fans. He stated that Live Nation Entertainment’s focus on artists would enable the company to remain viable over the long-term.
• Sen. Cornyn asked Mr. Lawrence to indicate whether Live Nation Entertainment had always put the interests of the artist over their own business.
  • Mr. Lawrence remarked that Live Nation Entertainment’s venue employees have generally worked well with his band to put on the best possible shows. He stated however that the structures of many deals between Live Nation Entertainment and artists do not prioritize the interests of artists. He commented that some of the line items in these agreements sought to take advantage of artists through forcing the artists to pay for items from Live Nation Entertainment-owned entities.
• Sen. Cornyn commented that Live Nation Entertainment’s ability to obtain most of the money derived the ticket sales from Mr. Lawrence did not seem like an “artist first” business model. He then noted how Mr. Berchtold had indicated that Live Nation Entertainment owns a small number of event venues. He noted however that Live Nation Entertainment maintains long-term exclusive primary ticketing rights contracts with additional event venues and effective contractual ownership of additional event venues.
  • Mr. Berchtold noted how Live Nation Entertainment operates roughly 200 event venues in the U.S. and indicated that Live Nation Entertainment often does not own these event venues. He also noted how Live Nation Entertainment has roughly 40 more buildings with which it maintains an exclusive promotor relationship. He commented that these venues constitute a small percentage of the U.S.’s roughly 4,000 event venues.
• Sen. Cornyn asked Mr. Berchtold to indicate whether Live Nation Entertainment could influence or even dictate the ticket prices charged by certain event venues.
  • Mr. Berchtold stated that Live Nation Entertainment could influence or dictate ticket prices at roughly 6 percent of the U.S.’s event venues.
• Sen. Cornyn then asked Mr. Mickelson to address why it was so difficult for consumers to get access to live event tickets. He also asked Mr. Mickelson to identify the beneficiaries of this limited consumer access to tickets.
  • Mr. Mickelson recounted how Taylor Swift fans had to sign up for Ticketmaster’s Verified Fan program in order to purchase tickets to her upcoming concert tour. He commented that Ticketmaster had known that demand for these Taylor Swift concert tickets would be “enormous.” He discussed how there are two ways to sell tickets for an event. He indicated that the first way involves a “best available” approach, which will limit consumer choices. He indicated that the second way involves a “pick a seat” approach, which will make the ticket purchasing process slower. He stated that the “pick a seat” approach is more profitable for Ticketmaster because the tickets are dynamically priced. He elaborated that slower ticket sales will drive up the ticket demand (and prices), which will in turn increase the fees imposed on the tickets. He asserted that Ticketmaster therefore has a financial incentive to pursue a “pick a seat” approach for concert ticket sales.

Sen. Sheldon Whitehouse (D-RI):

• Sen. Whitehouse noted how artists that play in Live Nation Entertainment-owned and operated venues are expected to use Ticketmaster and a Live Nation Entertainment-owned promotor. He asked Mr. Lawrence to address how these expectations impact both artists and fans.
  • Mr. Lawrence remarked that his band’s ability to consider different ticketing companies and promoters could enable his band to obtain deals.
• Sen. Whitehouse also asked Mr. Lawrence to indicate whether other artists had been able to play at Live Nation Entertainment-owned and operated venues that did not have to use Ticketmaster and a Live Nation Entertainment-owned promotor.
  • Mr. Lawrence testified that he was unaware of artists that could play at Live Nation Entertainment-owned and operated venues without having to use Ticketmaster and a Live Nation Entertainment-owned promotor. He stated however that artists that play at arenas or stadiums might be able to bring in outside concert promoters.

Sen. Marsha Blackburn (R-TN):

• Sen. Blackburn noted how Mr. Berchtold had blamed ticket bot attacks for causing Ticketmaster’s system to crash during the recent ticket launch for Taylor Swift’s upcoming concert tour. She also mentioned how event venues appear to view ticketing bot attacks as normal to their operations. She noted however that the U.S. Federal Trade Commission (FTC) had only brought one enforcement action ever under the BOTS Act of 2016 and called this situation “unacceptable.” She indicated that she would work with Sen. Richard Blumenthal (D-CT) to address this underenforcement of the BOTS Act of 2016 through their positions on the U.S. Senate Committee on Commerce, Science, and Transportation’s Subcommittee on Consumer Protection, Product Safety, and Data Security. She then mentioned how a 2019 report had found that Ticketmaster’s application had more downloads and more active users than any of its competitors. She also noted how Ticketmaster’s application had the most monthly active user growth. She recounted her personal experience using the Orange Bowl application (which is powered by Ticketmaster) and highlighted how this application enables users to purchase parking, official merchandise, and access travel sites. She indicated that this application had collected large amounts of consumer data and information and expressed interest in how Live Nation Entertainment is using this data and information. She then noted how Mr. Berchtold had claimed that Ticketmaster is able to block 90 percent of ticketing bot attacks. She asserted that this should be viewed as a failure. She noted how critical infrastructure providers experience large numbers of cyberattacks every day and commented that these providers can successfully defend themselves against these attacks. She asked Mr. Berchtold to indicate what Ticketmaster does with the information it collects from consumers and whether ticketing bots are accessing Ticketmaster consumer information. She also asked Mr. Berchtold to indicate whether Ticketmaster collected data from StubHub customers that needed to use the Ticketmaster platform to fulfill their orders. She further asked Mr. Berchtold to indicate whether there were protections around Ticketmaster user data. She requested that Mr. Berchtold respond to her questions in writing. She then asked Mr. Berchtold to indicate how many times Ticketmaster had reached out to the FTC requesting help on ticketing bot issues.
  • Mr. Berchtold testified that Ticketmaster had worked with the FTC on a ticketing bot investigation sometime around 2019 or 2020.
• Sen. Blackburn interjected to asked Mr. Berchtold to indicate whether Ticketmaster had only once worked with the FTC.
  • Mr. Berchtold answered affirmatively.
• Sen. Blackburn asked Mr. Berchtold to explain why Ticketmaster has challenges identifying ticketing bot attacks on its system. She commented that critical infrastructure providers can easily identify cyberattacks.
  • Mr. Berchtold referred to the ticketing bot situation as an “ever-going arms race.” He noted how ticketing bots are generally not trying to hack into Ticketmaster’s systems and are instead trying to impersonate people in order to obtain tickets on an automated basis. He commented that these ticketing bots are attempting to put U.S. consumers at a disadvantage.

Sen. Richard Blumenthal (D-CT):

• Sen. Blumenthal criticized Mr. Berchtold for seeking to deflect blame from Live Nation Entertainment during the hearing. He asserted that Live Nation Entertainment maintains clear market dominance within the U.S. ticketing and live events space. He stated that the numbers refute many of Mr. Berchtold’s arguments and commented that competition concerns had led the DoJ to pursue two consent decrees with Live Nation Entertainment. He further mentioned how the DoJ is currently investigating Live Nation Entertainment for potential violations of their second consent decree. He criticized Ticketmaster for blaming Taylor Swift for the problems associated with her ticket sales. He asserted that Live Nation Entertainment is ultimately responsible for rising concert ticket prices, exorbitant and hidden ticketing fees, ticket availability issues, and ticketing bot and scalpers problems. He highlighted how Mr. Berthold had indicated that Ticketmaster had only reported one incident of ticketing bot problems to the FTC. He expressed agreement with Sen. Marsha Blackburn’s (R-TN) assertion that the FTC needs to better enforce the BOTS Act of 2016 and criticized the FTC for its limited enforcement of the law. He mentioned how he supports the Better Oversight of Secondary Sales and Accountability in Concert Ticketing (BOSS) Act, which would require transparency and accountability for hidden ticket fees and ticketing bots. He asked Mr. Berchtold to indicate whether Live Nation Entertainment would support the BOSS Act.
  • Mr. Berchtold remarked that the ticketing and live events industry has many problems and stated that Live Nation Entertainment has an obligation to address these problems as the industry’s leading player. He then indicated that while he did not know all of the specific elements of the BOSS Act, he commented that there were many elements of the legislation that Live Nation Entertainment agrees with. He indicated however that Live Nation Entertainment also has some differing views regarding certain provisions of the legislation. He expressed the company’s willingness to further discuss the legislation with Sen. Blumenthal.
• Sen. Blumenthal asked Mr. Berchtold to indicate whether Live Nation Entertainment would support legislation to require complete ticketing transparency and to provide stronger enforcement powers against ticketing bots and scalpers.
  • Mr. Berchtold expressed Live Nation Entertainment’s support for “all-in” ticket pricing, greater enforcement against ticketing bots, higher penalties for ticketing bots, and a broader prohibition on ticketing bots.
• Sen. Blumenthal commented that while the FTC had failed to fully enforce the BOTS Act of 2016, he contended that Live Nation Entertainment’s failure to report the use of ticketing bots to the FTC had reduced the FTC’s ability to enforce the law. He stated that Live Nation Entertainment’s failure to report the use of ticketing bots has undermined the company’s claim that it is actively combating ticketing bots. He called for new legislation to address the current problems within the U.S. ticketing and live event industry. He stated that if the DoJ were to establish a violation of Live Nation Entertainment’s consent decree, then the DoJ must consider unwinding the Live Nation Entertainment merger. He also that if the DoJ were to establish facts that involve monopolistic and predatory abuses on the part of Live Nation Entertainment, then the U.S. must consider structural remedies to address these abuses. He further remarked that Congress owed the FTC additional resources and support so that it could pursue more enforcement cases. He then asked Mr. Berchtold to indicate whether Live Nation Entertainment would support legislation that would increase transparency within the U.S. ticketing and live event space.
  • Mr. Berchtold expressed Live Nation Entertainment’s support for more transparency as a general concept. He also expressed Live Nation Entertainment’s commitment to support Congress’s efforts to combat ticketing bots.
• Sen. Blumenthal asked Mr. Berchtold to indicate whether Live Nation Entertainment would take actions to combat ticketing bots.
  • Mr. Berchtold stated that Live Nation Entertainment would take actions to combat ticketing bots if there were ticketing bot laws that were enforced and had strong penalties.
• Sen. Blumenthal interjected to comment that Live Nation Entertainment already has the power to take action against ticketing bots. He asked Mr. Berchtold to explain why Live Nation Entertainment had not yet taken action against ticketing bots.
  • Mr. Berchtold stated that Live Nation Entertainment currently has a “limited level of power” on a matter that had not been consistently enforced.
• Sen. Blumenthal asserted that Live Nation Entertainment had unlimited power to pursue ticketing bots under the BOTS Act of 2016. He stated that primary ticketing companies are the only parties with the necessary resources and knowledge to take effective action against ticketing bots. He asked Mr. Berchtold to explain why Live Nation Entertainment had not taken action against ticketing bots.
  • Mr. Berchtold expressed Live Nation Entertainment’s desire for additional ticketing bot laws and for obtaining more information about the sale of ticketing-bot generated tickets on secondary ticketing platforms.
• Sen. Blumenthal remarked that if Live Nation Entertainment is concerned about artists, consumers, venues, and the public interest, then the company would take action under current law to combat ticketing bots. He asserted that Live Nation Entertainment possesses the right of action and the resources needed to pursue these cases. He reiterated his criticism of Mr. Berchtold for seeking to deflect blame from Live Nation Entertainment during the hearing.

Sen. John Kennedy (R-LA):

• Sen. Kennedy first criticized Live Nation Entertainment for its recent handling of the ticket sales for Taylor Swift’s concert tour. He then posited a requirement for all concert tickets to be non-transferable. He commented that this requirement would end the practice of ticketing bots because the ticketing bots would not be able to profit from their acquired tickets. He asked the witnesses to comment on this proposal.
  • Mr. Lawrence suggested that Sen. Kennedy expand his proposal to permit ticket transfers at face value. He commented that such a proposal would not impact the incomes of artists.
• Sen. Kennedy stated that consumers did not care whether Live Nation Entertainment was technically violating antitrust laws and asserted that consumers are fundamentally concerned about concert ticket prices.
  • Ms. Bradish expressed her opposition to a non-transferability requirement for concert tickets.
  • Mr. Nuzzo expressed his opposition to a non-transferability requirement for concert tickets.
  • Mr. Mickelson expressed his support for a non-transferability requirement for concert tickets.
  • Mr. Groetzinger asserted that event ticket transferability is important for consumers.
• Sen. Kennedy asked Mr. Groetzinger to indicate whether ticket transferability benefits consumers or middlemen.
  • Mr. Groetzinger stated that consumers need the ability to transfer tickets to friends so that they can attend events together.
• Sen. Kennedy acknowledged that while a few people might not be able to use their event tickets if there were a non-transferability requirement, he stated that most people would think more about who would be attending the event prior to purchasing the tickets. He asserted that a non-transferability requirement (or permitting ticket transfers at face value) would eliminate ticketing bots and benefit consumers. He asked the witnesses to indicate whether a major artist with market power could dictate their concert ticket prices and that their concert tickets would be non-transferable.
  • Mr. Groetzinger answered affirmatively and noted how some artists have pursued Sen. Kennedy’s proposal.
  • Mr. Berchtold stated that Live Nation Entertainment would support an artist’s right to make tickets for their shows non-transferable. He also expressed the company’s support for a non-transferability requirement for event tickets.
• Sen. Kennedy reiterated his assertion that a non-transferability requirement for event tickets would solve the problem of ticketing bots and benefit consumers. He then noted how some witnesses had accused Live Nation Entertainment of making too much money. He stated however that there is a difference between redistributing this money within the ticketing and live event supply chain and providing relief to consumers. He remarked that capping ticket prices, addressing ticketing bots, and cutting out middlemen would benefit consumers. He called on major artists to support non-transferability requirements for their concert tickets and to cap their ticket fees.

Sen. Mazie Hirono (D-HI):

• Sen. Hirono asked Ms. Bradish and Mr. Nuzzo to explain why they do not support a non-transferability requirement for tickets.
  • Ms. Bradish stated that a non-transferability requirement for tickets would attempt to solve a competition problem with a regulatory solution. She remarked that providing competition within the ticketing market would lead customers to be satisfied. She concluded that a non-transferability requirement for tickets would thus not address the root cause of the problem.
  • Mr. Nuzzo remarked that ticket purchasers should have the right to transfer their tickets at market rates. He also noted how the GAO had found that a large percentage of tickets on the resale market are going for under their market values. He stated that the secondary ticketing market plays a key role in allowing for smaller artists to fill larger event venues, especially in instances when an individual is unable to use their event tickets.
• Sen. Hirono then asked the witnesses to indicate whether Ticketmaster has a presence in the secondary ticketing market.
  • Mr. Nuzzo indicated that the largest secondary ticketing company is StubHub. He stated however that Ticketmaster is either building or growing its secondary ticketing business.
• Sen. Hirono called it surprising that Mr. Berchtold had expressed support for non-transferability requirements for tickets considering Ticketmaster’s presence in the secondary ticket market. She then asked Mr. Lawrence to indicate what he hoped would result from the hearing.
  • Mr. Lawrence remarked that he had several desired changes for the ticketing and live event space. He stated that the U.S. ought to address inconsistencies around ancillary ticketing revenues and noted how most event promoters will take 20 percent or more of his band’s gross merchandise sales per event. He indicated that while promoters will justify this collection on the grounds that they are providing the real estate for the merchandise sales, he asserted that the bands are providing the customers for the merchandise. He called this situation one-sided as bands could not collect on the sales of event venues. He also stated that the U.S. should address the expansion of off-platform ticketing, promote ticketing choice, impose caps on ticketing fees, and provide greater transparency on the settlement sheets for artists.
• Sen. Hirono asked Ms. Bradish to indicate whether the U.S. needs to change any laws to empower artists to better negotiate with ticketing companies, event venues, and event promoters.
  • Mr. Bradish remarked that Congress needs to provide antitrust enforcement agencies with resources and legislative clarity so that these agencies can pursue antitrust cases. She suggested that Congress consider the Competition and Antitrust Law Enforcement Reform Act, which would clarify and strengthen the U.S.’s antitrust laws.
• Sen. Hirono also expressed support for the BOSS Act and indicated that she is a co-sponsor of that legislation. She then asked Ms. Bradish to address how the U.S. should approach its review of vertical mergers.
  • Ms. Bradish remarked that the U.S. could consider market share and the ability of monopolists to exercise powers in other markets (both upstream and downstream) as part of vertical merger reviews. She also stated that Congress should make it easier for U.S. antitrust enforcement agencies (including the DoJ and the FTC) to pursue vertical merger cases.
• Sen. Hirono asked Ms. Bradish to indicate whether Congress should amend or strengthen the Sherman Antitrust Act of 1890 or the Clayton Antitrust Act of 1914 to create a presumption for enabling U.S. antitrust enforcement agencies to pursue vertical merger challenges.
  • Ms. Bradish stated that both the Sherman Act of 1890 and the Clayton Antitrust Act of 1914 do not contain presumptions for horizontal mergers and indicated that these presumptions came from case law. She commented that Congress therefore did not need to fundamentally reform either law. She further suggests that the Clayton Antitrust Act of 1914 already contained a presumption for challenging vertical mergers.
• Sen. Hirono then noted that the Live Nation and Ticketmaster merger had already been consummated and expressed interest in preventing future anticompetitive vertical mergers. She also stated that Ticketmaster’s recent problems with Taylor Swift concert tickets had not been novel. She mentioned how Ticketmaster had botched the sale of tickets for 2018 Bruno Mars show in Hawaii. She expressed doubts regarding the effectiveness of Live Nation Entertainment’s investments into improving the Ticketmaster system.

Sen. Josh Hawley (R-MO):

• Sen. Hawley noted how Live Nation Entertainment is currently subject to a consent decree from the DoJ through 2025. He asked Mr. Berchtold to confirm that this consent decree is due to the DoJ’s assertion that Live Nation Entertainment had repeatedly conditioned and had threatened to condition Live Nation’s provision of live concerts on an event venue’s purchase of Ticketmaster’s primary ticketing services.
  • Mr. Berchtold noted how the DoJ had alleged that there were six instances in 2019 that they believed had been violations of Live Nation Entertainment’s consent decree. He indicated that Live Nation Entertainment had agreed to extend the consent decree rather than challenge the consent decree. He testified that Live Nation Entertainment had made this decision because it had no interest in being perceived as defending the threats and retaliation.
• Sen. Hawley called it “extraordinary” for Live Nation Entertainment to be subject to a consent decree for a long period of time without challenging the consent decree in court. He then asserted that Live Nation Entertainment is attempting to control the ticketing resale market through their digital ticketing system SafeTix. He explained that SafeTix requires that ticket holders use a mobile application and precludes ticket holders from printing their tickets. He asked Mr. Berchtold to confirm his description of SafeTix.
  • Mr. Berchtold testified that Live Nation Entertainment has made “major” investments in shifting tickets from paper and PDF form to digital tickets. He stated that digital tickets provide enhanced security and combat fraud.
• Sen. Hawley interjected to ask Mr. Berchtold to confirm that a ticket holder using the Ticketmaster mobile application could digitally transfer their tickets to other Ticketmaster mobile applications users. He also asked Mr. Berchtold to confirm that a ticket holder using the Ticketmaster mobile application could not print their ticket and place it on a secondary ticket market website.
  • Mr. Berchtold indicated that Ticketmaster mobile application users could not print their tickets because printing would leave the tickets susceptible to fraud and duplication.
• Sen. Hawley asked Mr. Berchtold to indicate whether these digital tickets could only be resold through the Ticketmaster ecosystem.
  • Mr. Berchtold answered no and indicated that these digital tickets are often resold on secondary ticketing platforms (including StubHub and SeatGeek).
• Sen. Hawley asked Mr. Berchtold to estimate the percentage of tickets being sold on the secondary market that are counterfeited.
  • Mr. Berchtold stated that the advent of digital tickets has effectively eliminated the problem of counterfeit tickets. He noted however that speculative tickets remain a problem within the event tickets marketplace. He explained that speculative tickets involve tickets where the seller do not own the right to the ticket and the fans purchasing these tickets are unaware of this fact. He emphasized that digital tickets prevent ticket sellers from selling the same ticket multiple times to different buyers.
• Sen. Hawley asked Mr. Berchtold to explain how a SafeTix ticket could be resold on a secondary ticketing platform (like StubHub).
  • Mr. Berchtold noted that a seller could list their SafeTix ticket on StubHub and then transfer the SafeTix ticket to the buyer’s Ticketmaster or StubHub account.
• Sen. Hawley asked Mr. Berchtold to indicate whether Live Nation Entertainment has any plans to restrict the ability of ticket holders to resell their digital tickets through third-party entities (such as StubHub).
  • Mr. Berchtold testified that Live Nation Entertainment does not have any plans to restrict the transferability of digital tickets. He stated that artists should be able to set the rules around ticket transferability and that all ticketing platforms ought to be subject to the same rules.
• Sen. Hawley then asked Mr. Berchtold to explain his previous assertion that a non-transferability requirement for tickets would benefit consumers.
  • Mr. Berchtold remarked that concert tickets are unique in that artists often underpriced these tickets to deliver value to their fans. He stated that this underpricing of tickets creates opportunities for ticketing bots and scalpers to unfairly and illegally gain possession of said tickets and sell said tickets on secondary markets for higher prices. He remarked that a non-transferability requirement for tickets would prevent ticketing bots and scalpers from profiting off of these tickets at the expense of consumers.
• Sen. Hawley asked Mr. Berchtold to indicate whether there exist other markets where ticket transferability is significantly limited.
  • Mr. Berchtold stated that he is not aware of any markets where there existed such a substantial arbitrage in the value of the tickets.
• Sen. Hawley expressed doubts as to how a non-transferability requirement for tickets would benefit consumers. He commented that such a requirement appears to only benefit artists and primary ticketing companies.
  • Mr. Berchtold asserted that a non-transferability requirement for tickets would benefit consumers because it would enable consumers to purchase concert tickets when they went on sale. He noted how ticket scalpers using ticketing bots tend to purchase between 20 percent and 30 percent of these concert tickets and then list the tickets directly on secondary ticketing platforms at a steep markup.
• Sen. Hawley then noted how the DoJ had alleged that Live Nation Entertainment had violated its initial consent decree. He asked Ms. Bradish to confirm that it is not normal for antitrust consent decrees to be extended after violations are identified.
  • Ms. Bradish confirmed Sen. Hawley’s statement that it is not normal for antitrust consent decrees to be extended after violations are identified.
• Sen. Hawley interjected to ask Ms. Bradish to address why the DoJ had decided to extend Live Nation Entertainment’s consent decree after alleging that the company had previously violated it.
  • Ms. Bradish remarked that the DoJ’s allegations demonstrate that the concerns identified when the consent decree had been under development have subsequently materialized. She asserted Live Nation Entertainment is a monopolist that requires supervision. She contended that the current consent decree would not alter Live Nation Entertainment’s incentives, which would make it difficult for the DoJ to supervise the company.
• Sen. Hawley asked Ms. Bradish to indicate how the U.S. ought to address Live Nation Entertainment’s market dominance.
  • Ms. Bradish called for a structural remedy to address Live Nation Entertainment’s market dominance. She commented that these structural remedies could involve a spinoff and disintegration of the company’s vertical integration.

Sen. Thom Tillis (R-NC):

• Sen. Tillis stated that while he was receptive to permitting artists to restrict the transferability of their tickets, he asserted that a blanket prohibition on ticket transfers would be problematic. He then asked Mr. Berchtold to discuss how Live Nation Entertainment is working to defend itself from government interventions.
  • Mr. Berchtold first remarked that his presence at the hearing demonstrated Live Nation Entertainment’s interest in engaging with policymakers on improving the consumer ticketing and live event experience. He expressed Live Nation Entertainment’s support for “all-in” pricing. He stated that there are currently deceptive practices occurring within the ticketing space.
• Sen. Tillis interjected to suggest that Live Nation Entertainment might want to voluntarily address policymaker concerns unless it wants to be subject to new legislation. He then asked Mr. Lawrence and Mr. Berchtold to indicate whether there currently exists a mechanism that would provide artists with a transparent reporting of how tickets and fees from a given show has been distributed.
  • Mr. Lawrence noted how his band is provided a settlement sheet following a concert and indicated that the settlement sheet only lists the base price of the concert ticket. He also discussed how event venues will charge facility fees that are not included on the settlement sheets. He added that event venues will sometimes siphon off a portion of the ticket’s base price and put that portion towards facility fees.
  • Mr. Berchtold stated that it would be problematic if artists are not receiving service fee information and expressed Live Nation Entertainment’s commitment to look into this problem. He also asserted that there should exist “total transparency” in terms of the fees being imposed on tickets and artists. He stated that facility fees are a standard practice throughout the event venue space and reiterated his support for making these fees transparent.
• Sen. Tillis provided Mr. Nuzzo with an opportunity to respond to the previous comments.
  • Mr. Nuzzo remarked that ticket transferability is “extremely important” and stated that there are externalities associated with excluding transferability.
• Sen. Tillis concluded that the ticketing and live event industry would likely need to engage in some form of self-regulation to address competition concerns.

Sen. Ted Cruz (R-TX):

• Sen. Cruz asked Mr. Groetzinger, Mr. Mickelson, Mr. Nuzzo, Ms. Bradish, and Mr. Lawrence to indicate whether Ticketmaster is a monopoly.
  • Mr. Groetzinger answered affirmatively.
  • Mr. Mickelson answered affirmatively.
  • Mr. Nuzzo answered affirmatively.
  • Ms. Bradish stated that Ticketmaster is acting like a monopoly.
  • Mr. Lawrence expressed uncertainty as to whether Ticketmaster is a monopoly.
• Sen. Cruz asked Mr. Berchtold to respond to the other witnesses.
  • Mr. Berchtold contended that the ticketing business has never been more competitive. He stated that this competitiveness is evidenced by the fact that every event venue ticketing contract renewal involves multiple credible offers and a bidding process.
• Sen. Cruz asked Mr. Berchtold to address why all of the other witnesses perceive Ticketmaster as a monopoly.
  • Mr. Berchtold remarked that event venues exercise significant market power within the live events space.
• Sen. Cruz interjected to ask Mr. Berchtold to indicate Ticketmaster’s share of the ticketing business.
  • Mr. Berchtold estimated that Ticketmaster controls between 50 percent and 60 percent of the ticketing market.
• Sen. Cruz asked the other witnesses to indicate whether they disagree with Mr. Berchtold’s estimate.
  • Mr. Mickelson noted how Ticketmaster has 87 percent of ticketing contracts at NBA and NHL arenas and 93 percent of the ticketing contracts at NFL stadiums. He commented that these are the most important event venues.
• Sen. Cruz asked Mr. Groetzinger to discuss how Ticketmaster’s dominant position within the ticketing marketplace hurts consumers.
  • Mr. Groetzinger asserted that Ticketmaster uses their dominant position to eliminate competition. He stated that there does not exist a vibrant ticketing market that involves dozens of companies that compete to build the best consumer ticketing experience.
• Sen. Cruz asked the witnesses to address how this lack of competition impacts consumers that want to see live events.
  • Mr. Groetzinger stated that consumers are beholden to the offerings of Ticketmaster. He asserted that Ticketmaster’s parent company Live Nation Entertainment has an incentive to not innovate and to maintain the status quo because the status quo benefits the company.
  • Mr. Mickelson emphasized that Ticketmaster is a part of Live Nation Entertainment. He stated that the combination of Ticketmaster with Live Nation Entertainment provides Ticketmaster with a different business model than typical independent event promoters. He noted that independent event promoters need to make money putting on concerts while Live Nation Entertainment do not. He explained that Live Nation Entertainment make more money from event ticketing and sponsorships than from concerts. He described concerts as a “loss leader” for Live Nation Entertainment to bring more talent and content to arenas so that they could obtain lucrative ticketing contracts.
  • Mr. Nuzzo recounted how his friend had recently purchased concert tickets with a list price of $227 each and noted how these concert tickets had ultimately cost $291 each with the inclusion of fees. He asserted that consumers are unable to avoid these fees.
  • Ms. Bradish stated that the lack of competition within the ticketing and live events space forced consumers to pay higher ticketing fees and limited artists in their ability to choose their event venues and ticketing services.
• Sen. Cruz asked Mr. Lawrence to address how this lack of competition impacts consumers.
  • Mr. Lawrence remarked that the lack of competition in the ticketing and live event industry reduces the influence, transparency, and choice that artists could have in constructing their concert contracts. He also stated that this lack of competition reduces the influence, transparency, and choice that artists have on the fan ticket purchasing experience.
• Sen. Cruz lastly asked the witnesses to indicate whether they oppose adopting “all-in” ticketing and increasing ticketing transparency for artists. (Note: None of the witnesses expressed opposition to these practices.)

Sen. Amy Klobuchar (D-MN):

• Sen. Klobuchar noted how 87 percent of Billboard’s Top 40 tours in 2022 have been performed at event venues that used Ticketmaster. She asked Mr. Berchtold to indicate whether he disagreed with this statement.
  • Mr. Berchtold testified that he had not seen the data underlying Sen. Klobuchar’s statement and remarked that he could therefore not confirm the veracity of this statement.
• Sen. Klobuchar also noted how 87 percent of NBA teams, 87.5 percent of NHL teams, and 93 percent of NFL teams maintain exclusive ticketing agreements with Ticketmaster. She asked Mr. Berchtold to indicate whether he disagreed with this statement.
  • Mr. Berchtold disputed Sen. Klobuchar’s statement and remarked that SeatGeek had taken 15 percent of the NFL and NBA markets between 2018 and 2022. He acknowledged that Ticketmaster controls the leading share of the NFL and NBA markets and attributed this leading share to Ticketmaster’s superior product.
• Sen. Klobuchar interjected to provide Mr. Groetzinger with an opportunity to respond to Mr. Berchtold’s statements.
  • Mr. Groetzinger asserted that event venues only have one real option for ticketing services (i.e., Ticketmaster).
• Sen. Klobuchar noted how the DoJ had confirmed in 2020 that Ticketmaster has been the largest primary ticketing service provider for major concert venues in the U.S. for at least three decades. She also mentioned how Live Nation Entertainment’s revenue had grown from $5 billion in 2010 to over $11.5 billion in 2019. She referenced a 2018 New York Times article that reported that ticket prices were at record highs, service fees had not been reduced, and Ticketmaster provided ticketing services for 80 of the top 100 arenas in the U.S.
  • Mr. Berchtold noted how the New York Times article was from 2018 and highlighted how SeatGeek had won several major NFL and NBA clients between 2018 and 2022.
• Sen. Klobuchar asked Mr. Groetzinger to comment on the current state of the large event venue ticketing market.
  • Mr. Groetzinger noted that Ticketmaster is the primary ticketing provider for more than 80 percent of NBA, NHL, and NFL teams. He highlighted how Ticketmaster had maintained a similar market share around 2009.
• Sen. Klobuchar then mentioned how she had worked with Sen. Mike Lee (R-UT) to increase resources for U.S. antitrust enforcement agencies. She stated that there has occurred a narrowing of U.S. antitrust laws and called for the Committee to update antitrust laws to address discriminatory conduct and mergers. She asked Ms. Bradish to discuss the importance of making it easier for the U.S. to enforce its antitrust laws.
  • Ms. Bradish noted how case law has limited the ability of U.S. antitrust enforcement agencies to pursue vertical merger and monopoly cases. She expressed support for policies that would make it easier for U.S. antitrust enforcement agencies to pursue these types of cases.
• Sen. Klobuchar then noted how the witnesses had raised concerns about ticketing. She discussed the practice of drip pricing, which refers to situations where consumers do not see the full price of a ticket until the very end of the transaction process. She asked the witnesses to indicate whether Congress should mandate “all in” pricing on ticketing platforms so that the full ticket price would be disclosed upfront.
  • Mr. Nuzzo stated that Congress could mandate “all in” pricing under the U.S. Constitution’s Interstate Commerce clause.
  • Mr. Lawrence expressed support for the spirit of “all in” pricing. He stated however that the inability of artists to influence the fees would make it difficult for consumers to determine who is responsible for excessive ticket prices. He remarked that fees should therefore be listed out as part of any “all in” pricing system.
• Sen. Klobuchar also discussed the practice of speculative ticket selling, which involves parties selling tickets that they do not actually possess. She asked the witnesses to indicate whether Congress should prohibit this practice.
  • Mr. Mickelson asserted that either Congress or states need to ban the practice of speculative ticket selling. He called this practice deceptive and immoral.
• Sen. Klobuchar then stated that the Committee could play a role in gathering evidence on the state of competition within the U.S. ticketing and live events market, which the DoJ could then use to pursue structural remedies. She provided the witnesses with an opportunity to comment on this effort.
  • Mr. Mickelson discussed how movie studios had previously contracted and controlled actors, produced films, controlled distribution, and controlled movie theaters. He noted how the U.S. government had taken action to unwind this vertical integration and commented that this action had led to a more competitive market. He suggested that the U.S. government consider a similar solution as it pertains to the current monopoly of Live Nation Entertainment. He also suggested that Congress consider a prohibition on exclusive ticketing contracts at event venues. He mentioned how such exclusive ticketing contracts did not exist in Europe and the United Kingdom (UK).
  • Mr. Groetzinger also noted how European soccer stadiums did not typically hold concerts, which made them less sensitive to the concerns that using a particular ticketing company could lead them to lose access to certain artists. He stated that these stadiums tend to make ticketing decisions based on the merits of the ticketing products and services. He noted how Ticketmaster has 20 percent of the ticketing contracts for English Premier League (EPL) teams while SeatGeek has 50 percent of the ticketing contracts for EPL teams. He attributed SeatGeek’s market share in the EPL to its superior product.

Sen. Marsha Blackburn (R-TN):

• Sen. Blackburn expressed concerns over the practice of speculative ticketing. She noted how tickets are already available on the secondary market for Madonna and Zach Bryan’s upcoming concert tours, even though these tickets have not yet gone on sale. She raised concerns that Ticketmaster’s failure to detect ticketing bots and enforce ticketing bot prohibitions is leading bad actors to engage in speculative ticketing. She also raised concerns that Ticketmaster is collecting information on consumers to sell to advertisers. She asked Mr. Berchtold to address why secondary ticketing websites are listing tickets for live events whose tickets have not yet gone on sale. She also asked Mr. Berchtold to indicate whether Ticketmaster would strengthen its protections against ticketing bots. She further asked Mr. Berchtold to explain why Ticketmaster could not distinguish between ticketing bots and consumers.
  • Mr. Berchtold remarked that Ticketmaster is continually investing in systems to combat ticketing bots. He described Ticketmaster’s competition with ticketing bots as an “arms race.”
• Sen. Blackburn interjected to ask Mr. Berchtold to indicate how much Ticketmaster had invested in combating ticketing bots and to provide a timeline for securing its Ticketmaster website.
  • Mr. Berchtold testified that Ticketmaster had invested over $1 billion over the previous decade to combat ticketing bots and had developed the Verified Fan product to combat ticketing bots.
• Sen. Blackburn interjected to ask Mr. Berchtold to address how Ticketmaster is protecting the information of Verified Fan product users.
  • Mr. Berchtold stated that the Verified Fan product has been successful in protecting consumer information. He stated however that ticketing bots continue to attack Ticketmaster’s systems.
• Sen. Blackburn interjected to state that Mr. Berchtold had told the Committee that the Verified Fan product had caused the delays during the recent launch of tickets for Taylor Swift’s upcoming concert tour. She asked Mr. Berchtold to indicate whether the Verified Fan product is safe.
  • Mr. Berchtold remarked that the Verified Fan product has been effective in terms of ensuring that tickets were being sold to actual fans of Taylor Swift. He also testified that the Verified Fan product is compliant with various data security policies, including the California Consumer Privacy Act (CCPA) and the European Union’s General Data Protection Regulation (GDPR). He attributed the ticketing problems of the recent Taylor Swift tour launch to heavy traffic on Ticketmaster’s system. He indicated that ticketing bots had contributed to this heavy traffic.
• Sen. Blackburn interjected to note how Mr. Berchtold had previously stated that Ticketmaster could only determine whether a ticket buyer was a ticketing bot after the completion of a ticketing purchase. She expressed frustration that Ticketmaster could not algorithmically flag suspicious transactions during the sales process. She asserted that Ticketmaster must strengthen its verification systems and cyber protections.

Sen. Mike Lee (R-UT):

• Sen. Lee criticized the proposals under discussion that would restrict the ability of ticket holders to sell their tickets to other people. He stated that ticket holders might possess legitimate reasons for wanting to sell their tickets. He noted how several states (including his home state of Utah) have laws that address ticket transfers. He discussed how Utah’s Ticket Transferability Act requires that at least 90 percent of an event’s tickets be transferable. He asked Mr. Nuzzo to indicate whether federal policymakers ought to address the issue of ticket transferability.
  • Mr. Nuzzo stated that Congress could play a role in addressing ticket transferability given how live events tend to involve ticket buyers from different states.
• Sen. Lee asked Mr. Nuzzo to clarify whether states could still address the issue of ticket transferability on their own.
  • Mr. Nuzzo remarked that states could address the issue of ticket transferability on their own. He stated however that a federal solution to the issue might be more efficient than having each state develop its own ticket transferability policies.
• Sen. Lee called Mr. Nuzzo’s position reasonable. He also noted how artists often desire ticket transferability restrictions as a way to stop scalpers and to make tickets more affordable for their fans. He asked Ms. Bradish to address why artists should be allowed to dictate how fans use their tickets purchased from an event venue. He suggested that artists are seeking to use ticket transferability restrictions as a way to share in monopoly rents with primary ticketing companies.
  • Ms. Bradish expressed agreement with Sen. Lee’s concerns about ticket transferability restrictions. She stated that a primary ticketing company like Ticketmaster might use ticket transferability restrictions to keep customers within their ecosystem.
• Sen. Lee stated that impairing ticket transferability might harm competition (and consumers by extension) through preventing legitimate secondary ticketing companies from gaining any traction. He elaborated that preventing secondary ticketing companies from gaining traction could forestall the emergence of future competitors within the primary ticketing space. He asked Mr. Groetzinger to indicate whether he shared this concern.
  • Mr. Groetzinger expressed agreement with Sen. Lee’s concern. He asserted that the ticketing industry currently lacks competition and that reducing transferability would exacerbate this problem. He also noted how a primary ticketing company might permit ticket transferability to occur so long as it happened on its own platform. He stated that this approach would force all consumer data and all transaction fees onto that platform.
• Sen. Lee asked Mr. Berchtold to indicate whether a ticket should be considered the property of the purchaser. He further asked Mr. Berchtold to address whether a ticket holder should be permitted to use, transfer, and dispose of their purchased tickets as they saw fit.
  • Mr. Berchtold attributed the discussion on ticket transferability to the volume of industrial scalping that is occurring. He stated that the harvesting of tickets by scalpers disrupts the relationship between artists and fans and asserted that ticket scalping is the main source for many of the current problems within the ticketing and live events space.
• Sen. Lee disputed the assertion that ticket scalping is the main source for many of the current problems within the ticketing and live events space. He asked Mr. Berchtold to indicate whether Ticketmaster would commit to offering fair, reasonable, and non-discriminatory application programming interface (API) access to legitimate secondary ticketing services without limiting customers to the Ticketmaster application. He commented that such access could facilitate the safe and easy transfer of tickets.
  • Mr. Berchtold remarked that artists have the right to set the rules governing ticket transfers and commented that this right is key to counter ticket scalping. He also stated that there needs to occur the maintenance of a centrally held digital right master for digital tickets. He remarked that Ticketmaster would not release its digital right master for digital tickets because such a release could enable fraud.
• Sen. Lee asked Mr. Groetzinger to comment on Mr. Berchtold’s response and to address how competition with Ticketmaster had impacted innovation within the ticketing pace.
  • Mr. Groetzinger discussed how the NFL had created a ticketing ecosystem where Ticketmaster, SeatGeek, and StubHub all compete. He noted how the NFL’s ticketing ecosystem use open APIs and commented that these open APIs work well for fans. He asserted that there is no technical reason why there could not exist an open API for ticketing and alleged that Ticketmaster did not provide an open API for business reasons. He then remarked that Ticketmaster’s market dominance had stunted competition within the ticketing space. He suggested that increased ticketing competition could have led to the development of technologies that address ticketing bots.
• Sen. Lee ask Mr. Groetzinger to address how the introduction of competition would impact innovation within the ticketing space.
  • Mr. Groetzinger remarked that SeatGeek is working diligently to build the best possible ticketing software and improve ticketing accessibility. He stated however that many event venues will often forgo the best available ticketing technology because the venues are afraid that a given technology choice could cause them to lose access to certain concerts. He asserted that this dynamic undermines efforts to provide a fair, vibrant, and competitive market.

Sen. Josh Hawley (R-MO):

• Sen. Hawley discussed how consumers could purchase Ticketmaster SafeTix tickets on secondary ticketing platforms (such as StubHub). He noted however that buyers of these tickets must obtain the Ticketmaster application to make use of SafeTix tickets.
  • Mr. Berchtold commented that this situation is not atypical within the ticketing space. He noted that a consumer that purchased a secondary market ticket would need to download the SeatGeek application if the event venue for the ticket uses SeatGeek as their primary ticketing company.
• Sen. Hawley remarked that the Ticketmaster’s SafeTix product provided the company with an advantage because it forces secondary market ticket buyers to come into the Ticketmaster ecosystem. He highlighted how Ticketmaster’s website advertised to event owners that SafeTix enables them to communicate directly with event attendees (including those that purchased their tickets on the secondary market) and to engage event attendees after an event is over. He stated that Ticketmaster is harvesting the data of ticket buyers for sale. He asked Mr. Berchtold to indicate whether this data harvesting provides Ticketmaster with a market advantage.
  • Mr. Berchtold testified that Ticketmaster does not use account data for marketing purposes if an account is established for the sole purpose of receiving a ticket.
• Sen. Hawley noted how Ticketmaster’s website states that event owners will be able to engage with SafeTix ticket holders after the event is over and offer personalized food, beverage, and merchandise offers. He asked Mr. Berchtold to indicate whether this statement from Ticketmaster’s website is true.
  • Mr. Berchtold testified that there exists some ability for event owners to communicate with event attendees after an event. He stated however that Ticketmaster does not use the data of attendees for marketing purposes.
• Sen. Hawley asked Mr. Berchtold to explain how event owners contact event attendees after an event is over.
  • Mr. Berchtold stated that the text from Ticketmaster’s website might not be accurate. He commented that he would need to look into the text in question.
• Sen. Hawley remarked that Ticketmaster appeared to be exercising its monopoly over the primary ticket market to force secondary ticket market consumers to come into the Ticketmaster ecosystem. He also noted how Ticketmaster maintains its own ticket resale platform. He suggested that this platform has an unfair advantage over other secondary ticket platforms because of its convenience. He asked Mr. Groetzinger to indicate whether he agreed with this assessment of Ticketmaster’s actions.
  • Mr. Groetzinger expressed agreement with Sen. Hawley’s assessment of Ticketmaster’s actions.
• Sen. Hawley asked Mr. Groetzinger to explain the significance of Ticketmaster’s ability to force consumers into their ecosystem.
  • Mr. Groetzinger remarked that Ticketmaster’s ability to force consumers into their ecosystem stifles competition. He noted how secondary ticket market buyers will often need to create Ticketmaster accounts to access their tickets purchased on another platform.
• Sen. Hawley remarked that Ticketmaster is forcing ticket buyers on other platforms to become Ticketmaster customers so that they could obtain their tickets. He asserted that this dynamic raises competition concerns and does not benefit consumers.

Sen. Mike Lee (R-UT):

• Sen. Lee remarked that the issue of competition within the ticketing and live event space is emblematic of many competition issues throughout the economy. He called it important for the U.S. to maintain fair, free, open, and fierce competition within the ticketing and live event space. He stated that competition is beneficial in that it increases the quality of products and services and reduces the price of products and services.

Sen. Amy Klobuchar (D-MN):

• Sen. Klobuchar remarked that the hearing had been bipartisan and had focused on competition. She stated that competition concerns are not unique to the ticketing and live event industries and noted how 75 percent of U.S. industries have become more concentrated. She highlighted her efforts to increase resources for U.S. antitrust enforcement agencies and commented that these agencies could be revenue raisers for the U.S. government. She also mentioned how demand for live events had increased as the U.S. has emerged from the COVID-19 pandemic. She remarked that the Committee is interested in taking action to address competition concerns within the ticketing and live event space. She lastly stated that the Committee’s job is to provide oversight of the relevant antitrust enforcement agencies.