Over an hour into Tuesday’s Senate judiciary hearing on competition in the music industry, Sen. Richard Blumenthal sardonically “congratulated and thanked” Live Nation Entertainment president and CFO Joe Berchtold for the “absolutely stunning achievement” of unifying Republicans and Democrats over a policy matter. The glue for such cooperation? The vitriol and concern they all have over the ticketing industry and with Live Nation Entertainment, the parent company of the eponymous concert promoter and of ticketing giant Ticketmaster.
It was Live Nation against virtually everyone else during the hearing, with senators scrutinizing every aspect of the concert giant’s business from ticketing fees and exclusivity agreements with Ticketmaster to its market share on concert promotion and ownership of venues with Live Nation. Other industry and antitrust expert witnesses taking part in the hearing, meanwhile, outright criticized the power the company has over the rest of the industry, labeling Live Nation a monopoly that must be broken up.
Live Nation’s Berchtold gave a much different perspective, claiming that the concert and ticketing industries are more competitive than ever. He asserted that the larger problems to improve the industry lie within better enforcement to stop scalpers and bots from buying mass amounts of tickets and from passing legislation for more transparency for consumers.
“As I hear and read what you have to say, it’s basically, ‘It’s not us, it’s everyone but us.’ And the fact of the matter is that Live Nation/Ticketmaster is the 800-pound gorilla here,” Blumenthal told Berchold during the hearing. “You have clear dominance, monopolistic control. This whole concert ticket system is a mess. May I suggest respectfully that Ticketmaster ought to look in the mirror and say, ‘I’m the problem, It’s me.’” (Blumenthal’s reference was one of perhaps too many Swift-inspired lyrical callbacks and puns from senators today.)
The arguable lack of competition in the live music business has been an intense topic of debate for over a decade, when Live Nation, the industry’s largest concert promoter, merged with Ticketmaster, the business’s biggest ticketer in 2009. Prior to the Department of Justice’s approval of the merger, critics warned the deal would create a vertically integrated behemoth that would stifle competition in the live events space. The deal was approved on the condition that Live Nation entered into a consent decree to prevent the company from leveraging its power in the promotion space to force venues to use Ticketmaster. By the beginning of 2020, that decree was amended after the DOJ alleged Live Nation had violated the decree numerous times.
Blumenthal, like several other senators, suggested that if the DOJ’s reported ongoing investigation into Live Nation finds the company has violated that consent decree, U.S. regulators should consider breaking up Live Nation and Ticketmaster.
As Sen. Amy Klobuchar — who called the hearing alongside Mike Lee — told American Antitrust Institute witness Kathleen Bradish during the hearing after noting Live Nation’s outsized market share in the industry: “I want to dispel the notion that this is not a monopoly, and then we can go from there about solutions.”
Some of the fellow witnesses beside Live Nation, which included rival ticket and promotion services, antitrust experts and a touring artist, were more direct, stating that their businesses suffer in the current system and that Live Nation is a monopoly that must be reigned in.
“A lack of robust competition in our industry meaningfully stunts innovation, and consumers are who suffer,” Jack Groetzinger, CEO of Ticketmaster rival SeatGeek, told the senators during the hearing. “Venues fear losing Live Nation concerts if they don’t use Ticketmaster. The only way to restore competition in this industry is to break up Ticketmaster and Live Nation.”
Groetzinger — whose company recently lost a partnership with Brooklyn’s Barclays Center — said that the arena told SeatGeek it wanted to use Ticketmaster for concerts but still keep his company for basketball games due to a drop in the number of Live Nation concerts at Barclays since SeatGeek took over. Such a deal wouldn’t work economically, so the two amicably parted ways, Groetzinger said. Berchtold, however, emphasized that there was no retaliation from his company toward Barclays and told the panel that the total number of concerts as a whole dropped due to a high level of competition for arena shows in New York’s market.
Jerry Mickelson, cofounder of Chicago-based promoter Jam Productions, previously testified before the Senate’s antitrust subcommittee in 2009 regarding the Live Nation Ticketmaster merger to warn of anti-competitive implications, as he noted during his opening statement on Tuesday. Since then, he alleged, those concerns came to fruition.
“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 said, noting that in the late 1990s, his company produced 100 arena concerts. By 2011, one year after the merger, it dropped to 46 and by last year, down to 14, suggesting Live Nation’s dominance is the cause.
When asked about venues’ concerns about breaking from Live Nation, Mickelson echoed Groetzinger’s sentiments. “When speaking with people that either own or manage venues, their biggest fear is if they leave Ticketmaster, they will lose content. Whether it’s said or not, it’s implied that if I don’t use Ticketmaster, I am not going to get all the shows that I would like to have.”
Berchtold disputed the claims and countered that the live music business is more competitive than it’s ever been. He pointed to scalpers and widespread use of bots as the biggest consumer threat in the industry and the main cause of the disastrous on-sale period for Taylor Swift’s upcoming Eras tour — which itself drew enough criticism toward the company to inspire the hearing in the first place.
“We hear people say that ticketing markets are less competitive today than they were at the time of the Live Nation-Ticketmaster merger. That’s simply not true,” Berchtold said, later claiming that their market share has dropped since the merger and that the company has invested $1 billion into improving Ticketmaster’s system since the merger.
Berchtold said that the venues, not the company, set the fee rates and that Live Nation’s own venues have fee rates in line with the rest of the industry. He advocated for better enforcement of the BOTS Act, passed in 2016 and designed to stop scalpers from using bots to buy mass amounts of tickets. He also vied for solutions regarding transparency in the industry such as government-mandated all-in ticket pricing to require all ticket companies to show fees upfront rather than hide them at the end of a purchase.
“We apologize to the fans. Ticketmaster accepts its responsibility as being the first line of defense against bots in our industry,” Berchtold said. “We also need to recognize how industrial scalpers using bots and cyber attacks to unfairly gain tickets has contributed to this awful experience.”
Several senators acknowledged problems with enforcing the BOTS Act, but also pushed back on Live Nation’s assessment of the problem, questioning why Ticketmaster as the market leader hasn’t been able to get a better handle on the bot issue.
Tennessee Senator Marsha Blackburn asked Berchtold why other industries have been able to get a better handle on bots while Ticketmaster hasn’t. “Banking services, credit card processors, health care companies, they get bot attacks every single day by the thousands and they have figured it out but you guys haven’t,” Blackburn said. “This is unbelievable. You ought to be able to get some good advice from some people and figure this out … Do we need to make certain you have better people around your IT team?”
As for solutions, the panel debated whether or not a wider spread usage of non-transferrable tickets to curb scalping would solve any problems, how lawmakers should approach ticketing fees, and whether there should be caps on fees.
Clyde Lawrence of the band Lawrence — the lone artist on the witness panel — said he wasn’t sure if Live Nation is a monopoly when asked toward the end of Tuesday’s hearing. However, he noted that when he asks a venue about ticket fees, he’s often told it’s a Live Nation issue, refuting Berchtold’s claim. He further claimed there needs to be changes to systems like settlement on payment for the band and on what the artist takes versus the promoters and ticketers.
“Why is it that all of Live Nation’s costs get recouped before the show hits its profit point yet ours, the artists’, don’t? Why is there so little transparency as to what line items such as facility fees actually go towards,” Lawrence asked during his opening statement. “Why is it standard for Live Nation to take a 20% commission on our merchandise sales while we never receive a cent of their ancillary revenues like concessions, alcohol and parking? Finally, why is Live Nation allowed to freely set exorbitantly high ticket fees without any transparency or input while in other industries, the government has mandated caps on various types of junk fees?”
Following the hearing, however, it’s clear that both the senators and industry officials alike questioned how effective the consent decree is at all, and whether it’s possible for Ticketmaster and Live Nation to exist as one company and still keep the industry competitive.
When asked about Berchtold and Live Nation’s suggestions to improve the industry, Bradish, vice president for legal advocacy at the American Antitrust Institute, told those in the hearing that no level of changes will solve the antitrust concerns as long as Live Nation stands to benefit.
“None of those suggestions go to the core of what we’ve been talking about today, which is the antitrust problem,” Bradish said. “[It’s] the fact that Live Nation-Ticketmaster has the incentive to do things to exclude competition in all of its markets up and down the supply chain for live entertainment. I appreciate those suggestions. Many of them may be good ideas, but it does not change the fact that Live Nation-Ticketmaster is a monopoly and will act because that’s its incentive, to exclude competition.”