By: Justine Kim
With soaring anticipation for the first live tour in five years, 3.5 million “registered” Taylor Swift fans around the country attempted to purchase presale tickets for the Eras Tour on Tuesday, November 15, 2022, ultimately resulting in website crashes and the cancellation of the scheduled public sale for non-registered fans. Although 2.4 million tickets were sold on that Tuesday, the incident became the catalyst for reignited scrutiny against Ticketmaster by concertgoers and artists alike, with renewed accusations of the company “abusing its market power at the expense of consumers.” As is the case for 80% of the ticketing market in the U.S., the Eras Tour tickets were sold by Live Nation Entertainment Inc. (LNE) through Ticketmaster.
In 2010, Ticketmaster completed a $2.5 billion, tax-free merger with Live Nation to form LNE. This merger has been criticized (since its announcement) for “locking” competitors out of the industry and leaving consumers out of options. Consumers, lawmakers, and artists have continuously sought antitrust investigations into LNE for allowing the merged company to be the predominant servicer of tickets and live events in the U.S. with no meaningful competition.
Questions regarding the creation of a potential monopoly have persisted since the announcement of the merger, with notable criticism from Bruce Springsteen about Ticketmaster’s alleged “scalping” practices to a 2015 antitrust lawsuit by Songkick, LNE’s competitor. According to the Songkick suit, LNE had “threatened” artists to not work with Songkick and “abus[ed] [LNE’s] power as a concert promoter to influence how musicians sell their tickets.” In 2018, the two parties reached a $110 million settlement, including “an additional undisclosed sum [for LNE] to acquire some of Songkick’s remaining technology assets and patents.”
Modern antitrust law in the U.S. is governed by three key federal statutes. First, the Sherman Antitrust Act of 1890 represents the federal government’s “commitment to a free market economy” by “outlaw[ing] all contracts, combinations, and conspiracies that unreasonably restrain interstate and foreign trade” or “monopoliz[ing] any part of interstate commerce.” According to the U.S. Department of Justice (DOJ), there is an unlawful monopoly under the Sherman Act if “only one firm controls that market for a product or service” and this market control was obtained “by suppressing competition with anticompetitive conduct” and not by the superiority of its product or service. Under this Act, unlawful monopolies are usually “punished as criminal felonies,” and the DOJ is the only entity with the power to bring such criminal prosecutions.
Second, the Federal Trade Commission Act, signed into law in 1914, established the Federal Trade Commission (FTC) and empowered the Commission to “prevent unfair methods of competition,” among other duties. The FTC Act, however, does not impose civil or criminal penalties, and provisions of this Act may only be enforced by and through the FTC.
Third, the Clayton Antitrust Act of 1914 empowered the FTC, in addition to other pro-competition duties, to prevent and eliminate unlawful corporate mergers and acquisitions (M&A). This Act mandates all entities considering M&A activity to consult the DOJ’s Antitrust Division and the FTC with violations of this Act resulting only in civil penalties. 1976 amendments to the Clayton Act allow “private parties to sue for triple damages when they have been harmed by conduct that violates either the Sherman or Clayton Act.”
Under this statutory framework, a merger of two or more entities may trigger FTC or DOJ investigations if either agency believes that there has been or may be a violation of antitrust law. In such cases, either agency “may attempt to obtain voluntary compliance” for the investigation “by entering into a consent order” with the merging entities. While a consent order is not an admission of violating antitrust laws, the order represents the signing entities’ agreement “to stop the disputed practices outlined in an accompanying complaint or [to] take certain steps to resolve the anticompetitive aspects of [their] proposed merger.” The entities’ refusal to sign a consent agreement with the DOJ or the FTC or their noncompliance with a consent agreement may cause the agencies to seek injunctive relief in a federal court.
In the LNE merger, the DOJ required the merging companies to divest some of their assets in order to obtain approval for the proposed merger. Specifically, Ticketmaster was required to “license its primary ticketing software to a competitor” (Anschutz Entertainment Group, “the second-largest concert promoter and operator of major venues”) and sell off its Paciolan Inc. ticketing unit. Live Nation, the concert-and-venue-hosting counterpart, “agree[d] to be barred from retaliating against venue owners who use a competitive ticket service” for a period of ten years.
However, as the ten-year deadline of the non-retaliation provision of the DOJ—Live Nation agreement drew near, the two organizations agreed to amend and extend this provision in 2019, based on Live Nation’s repeated violations of the provision. The DOJ had found that Live Nation, in violation of the original merger agreement, “had used its control over the concert touring business to pressure music venues into signing contracts with its Ticketmaster subsidiary.” This agreement, which will expire in 2025, would clarify the restriction that Live Nation “is not allowed to threaten venues in any way and may not retaliate against venues that decide to use a system other than Ticketmaster.”
LNE’s anti-competitive behavior has directly impacted consumers and the industry. According to a 2018 article, Ticketmaster, through LNE, ticketed eighty of the top one-hundred arenas in the U.S. Between 2009 to 2019, the average ticket price for the top 100 tours worldwide increased by 55% with the average ticket for the highest-grossing tour in North America (The Rolling Stones) costing $226.61. Using its unmatched power in the live music industry, Ticketmaster introduced a “dynamic pricing” system in 2011, which allows ticket prices to be dependent on the level of demand for the event and seat location. Bruce Springsteen has been a vocal critic of Ticketmaster’s dynamic pricing, particularly after prices for his concert ticket rose to $5,500—before the tickets were resold by a third party.
The Taylor Swift ticket sales reignited attention on the power of LNE in the ticketing and live event industry. Following the Eras Tour presale, the New York Times reported that the DOJ had opened an antitrust investigation into LNE, regarding their alleged abuse of “power over the multibillion-dollar live music industry.” Congress is also stepping in. The Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights announced that it would hold a hearing for “the lack of competition in the ticketing industry.” Industry competitors, consumers, and lawmakers are once again calling for greater scrutiny on the alleged anticompetitive power LNE has amassed since the 2009 Live Nation and Ticketmaster merger.