Armed With Taylor Swift Lyrics, Senate Hearing Tackles Ticketing Industry

Senator Richard Blumenthal (D-CT) summed up the tenor and tone of today’s Senate Judiciary Committee hearing on the lack of competition in the ticketing industry while directly addressing witness Joe Berchtold, president and CFO of Live Nation Entertainment, which owns Ticketmaster. Blumenthal asserted, “Mr. Berchtold, I want to congratulate and thank you for an absolutely stunning achievement. You have brought together Republicans and Democrats in an absolutely unified cause. And may I suggest respectfully that unfortunately your approach today in this hearing is going to solidify that cooperation because as I hear and read what you have to say, it’s basically, it’s not us, it’s everyone but us.”

As Amy Klobuchar (D-MN), chairwoman of the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights, stated towards the end of the hearing, “I just want to dispel this notion, that this is not a monopoly and then we can go from there about solutions.”

Although Taylor Swift herself did not testify, interest in the hearing was prompted by reaction the debacle involving November sales to her Eras tour (in which Ticketmaster handled 47 of the 52 dates, with SeatGeek ticketing the remaining five). Mike Lee (R-UT), Ranking Member of the Subcommittee, noted, “As I was driving up this morning, I couldn’t help with notice. I’d never seen more smiling and happy demonstrators than I saw today. I think Swifties have figured something out. They’re very good at getting their message across.”

In her initial remarks, Klobuchar emphasized, “I believe in capitalism and to have a strong capitalist system, you have to have competition. You can’t have too much consolidation. Something that unfortunately for this country as an ode to Taylor Swift, I will say we know all too well.” It was not the only citation of Swift lyrics during the proceedings.

“That’s the Ticket: Promoting Competition and Protecting Consumers in Live Entertainment” approached the subject from a number of perspectives. In certain respects this was a tale of two hearings. Some of the witnesses as well as some of the senators, seemed particularly focused on rolling back the merger between Ticketmaster and Live Nation, which in 2020 was reaffirmed and the consent decree extended to 2025. Others pointed to Ticketmaster itself and its dominant presence in the ticketing market.

Judiciary chair Dick Dubin (D-IL) spoke first and provided some of the backdrop: “Live Nation merged with Ticketmaster in 2010 in a deal that joined the country’s largest ticketing company with its largest event promoter.  The Justice Department and Attorneys General from many states, including Illinois, sued to block the merger. The plaintiffs ultimately allowed the merger to go through, but put in place a consent decree with a set of conditions and divestitures designed to ensure competition in ticketing and live entertainment markets. Unfortunately, that consent decree does not appear to have been effective in the decade plus since the merger Live Nation has consolidated its dominant position in the ticketing and live entertainment markets. And the result is a competition killing strategy that has left artist and fans paying the price.”

In his opening statement, Jerry Mickelson, the Chicago-based concert promoter who founded JAM Productions in 1972, referenced his testimony before the very same committee nearly 14 years earlier, regarding the then-proposed merger. He commented, “In 2009, I appeared in front of the committee to testify about the proposed merger of Live Nation and Ticketmaster. At that hearing, I stated the unification of these two Goliaths would create a business with extraordinary market power and clout, unlike any that I’ve ever seen in my lifetime. I testified that if this merger was allowed to proceed, the combined entity would’ve the ability to suppress or eliminate competition in many segments of the industry. Today, we know with certainty that this merger is vertical integration on steroids, using dominance in one market to expand its power and dominance in another, cutting out the competition and harming the consumers.”

Mickelson also mentioned, “When Live Nation loses money on a concert, they can make up for that with operating income from ticketing and sponsorships. We can’t do that. We don’t have those. Pepsi doesn’t earn money from Coke, but our competitor Live Nation earns money from selling tickets to our concerts.

Then he looked back and offered his overall take on what has ensued: “From my vantage point, the arena level concerts used to be JAM’s most profitable segment of the business because that’s where we earned our money. In 1996, JAM produced a hundred concerts in arenas, but in 2011, 1 year after the merger that decreased to 46 concerts, and in 2022 we only produced 14 arena concerts. Live Nation went after the arena business and they succeeded in driving us and other independent promoters out of that sector.”

Kathleen Bradish, Vice President for Legal Advocacy, American Antitrust Institute (a Washington D.C.-based nonprofit that aims to promote competition for the benefit of “consumers, businesses, and society”) spoke of the need for structural relief that would break up both Live Nation and Ticketmaster.

“Live Nation-Ticketmaster is a leading example of both a traditional monopoly and a modern dominant digital player,” she contended. “Its dominance in markets in the live entertainment supply chain creates strong incentives to exclude smaller rivals such as smaller or independent concert promoters and venues. Ticketmaster’s dominance in digital ticketing also creates incentives to limit competition from ticket resellers and brokers, thus impairing the functioning of the important secondary ticketing market. Customers pay the price with higher ticket prices and ticket fees, lower quality, less choice and less innovation.”

Berchtold’s testimony encompassed three themes. He emphasized the increasingly competitive nature of the industry, Ticketmaster’s role as a technological and marketing innovator, as well as the ongoing threat posed by “the industrial scalping of tickets, using bots to unfairly gain possession of those tickets illegally.”

“In 2009, the Department of Justice alleged that Ticketmaster’s market share was over 80%. It is a different story today,” he testified. “The most obvious change is the emergence of the enormous secondary ticketing market, in which Ticketmaster has a modest market share and many strong competitors. But also in primary ticketing, the Ticketmaster of 2010 did not face the level of competition we face today from new competitors including SeatGeek, AEG’s AXS, and Eventbrite, along with established competitors including and Paciolan.”

The Live Nation executive also underscored that Ticketmaster does not establish the face value of tickets, which is set by the artists’ contract with the promoter. Beyond that he added, “In most cases venues set service and ticketing fees, and the majority of those fees go to the venue, not to Ticketmaster. Indeed, for as long as Live Nation has owned Ticketmaster, the portion of the service fee that Ticketmaster retains has been falling and the venue’s share has been increasing.”

Berchtold directly apologized to Taylor Swift and her fans. He also explained, “There was unprecedented demand for Taylor Swift tickets. We knew bots would attack that onsale, and planned accordingly. We were then hit with three times the amount of bot traffic than we had ever experienced, and for the first time in 400 Verified Fan onsales they came after our Verified Fan access code servers. While the bots failed to penetrate our systems or acquire any tickets, the attack required us to slow down and even pause our sales.”

Even so, he noted, “Since the merger, we have invested over $1 billion in capital to improve the Ticketmaster system. … I can say with great confidence that technologically Ticketmaster is a much better ticketing system today than it was in 2010. Its performance in large onsales is the best in the industry, it has the best marketing capabilities of any ticketing system, and it is far and away the leader in preventing fraud and getting tickets into the hands of real fan.”

Late in the hearing Berchtold referenced a letter of support submitted by Garth Brooks, who is “well known for being one of the leading advocates of providing a great show and a great value for his fans.” Berchtold pointed out that Brooks “called out very specifically that it’s the scalping that takes place. That is the origin of the problems that we have, and everything else is a derivative issue.”

The roster of witnesses also included Jack Groetzinger the CEO of SeatGeek, which competes with Ticketmaster on both the primary and secondary market. SeatGeek recently lost a seven-year contract with Brooklyn’s Barclays Center to Ticketmaster after just a year.

In 2019 the Justice Department had accused Live Nation back of using its market power to pressure potential Ticketmaster clients into signing deals by suggesting that if they did failed to do so, they would lose access to Live Nation performances.

SeatGeek had not commented on the Barclays situation prior to the hearing but in response to a question from Senator Durbin, Groetzinger initially referenced a New York Times report that indicated “once we took over ticketing for the Barclays Center in Brooklyn, the Barclays Center saw a marked decrease in the number of concerts from Live Nation that were sent to that venue versus historical averages.”

Then Groetzinger offered additional insight, as he revealed, “Last year, Barclays Center management came to us and said, ‘We’d like to keep using you for ticketing our basketball, but we want to be able to use Ticketmaster to ticket concerts.’ And we looked into it and couldn’t get the economics to work. So we said to them, ‘Listen, let’s just part ways amicably,’ and we did.”

Berchtold responded that as per the initial article, the decrease in shows could be attributed to another venue that had opened in the marketplace. As a result, “So you now had two venues, vying for the shows that weren’t going to Madison Square Garden, and that the number of shows going to Barclays from all the major promoters went down as a result of that increased competition.”

He later added, “it is absolutely our policy to not pressure threaten or retaliate against venues by using content as part of the ticketing discussion.”

The Live Nation executive acknowledged that the Justice Department “alleged six issues in 2019, which led to our decision with them to extend the consent decree.”

Then he suggested that there had been “differing interpretations” of the original consent decree. As a result, “One of the things that we’ve done is in instances where venues are seeking to tie in a ticketing and a concert agreement into an overall deal, we have eliminated those. So that there can’t be any instance where there’s the perception of threats or retaliation associated with that bundling done at the venues request. So we’ve simply eliminated that from our service set, along with the establishment of monitors to make sure that any venue, employee, or others could confidentially report any issues.”

Clyde Lawrence, singer-songwriter for the band Lawrence, shared his perspective as an emerging artist. In December he had penned a guest essay for the New York Times titled, “Taylor Swift’s Live Nation Debacle Is Just the Beginning.” His remarks in the chamber echoed that essay, as he expressed his frustration with both the economics and opacity of the system whereby after settling with a venue at the end of the night, his band would typically receive only $12 from a $30 ticket. He also observed that on top the $30, his fans were paying service fees that ranged from 40% of the face value to a peak of 82% and that he had no input or awareness of this, routinely discovering the fees only after logging onto the Ticketmaster site as a customer and searching for the group’s shows.

One of the recurring topics at the hearing was the length of Ticketmaster’s exclusive contracts with the venues, which Bradish suggested had an anti-competitive effect on the market.

Klobuchar echoed this in asking Berchtold: “One way that Live Nation eliminates competitive pressures is by locking venues into multi-year contracts, whether they three years, five years, seven years. If you’ve tied up 80% of major concert venues with multi-year contracts, where is there room for one of your competitors to get in the door?”

He responded with his contention that the 80% reference was generated by a 2008 Department of Justice study. He countered that the number at present was lower, closer to the 50-60% range.

Mickelson cited a different number, which did not focus on all potential venues clients but instead emphasized high-volume business. He suggested that 87% of the top 40 U.S. concert tours in 2022 were ticketed by Ticketmaster. The he added that 87% of the NBA teams and 93% of the NFL teams also had exclusive agreements with the company.

Groetzinger added that Ticketmaster has been moving from five year contracts which had been the industry standard to 10 year contracts, in anticipation of potential regulatory action to follow.

Ticketing practices in the United Kingdom. also became an important reference point.

The SeatGeek CEO noted, “The venues that host English Premier League teams — which include major franchises such as Liverpool, Manchester United and Chelsea — do not rely on concerts for revenue. Thus, they do not rely on Live Nation. As a result, venues choose a ticketing platform based on the merits of the technology. In contrast to its eighty percent plus market share of major sports venues in the United States, Ticketmaster tickets only twenty percent of the teams in the English Premier League.”

Mickelson later pointed out the U.K. ticketing market offers a potential model to consider. There the venues do not enter into exclusive ticketing contracts. Instead, facilities typically share inventory within multiple ticketing agents.

As for what might emerge from the hearing, Klobuchar emphasized “our desire to actually move on this issue.” She affirmed that a range of possibilities exist: “Some of them are smaller things that can be done right away. Some of them are things that the Justice Department may order.”

Above all else, “We are very interested in actually doing something and not just throwing popcorn.”

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