Senate Panel Grills Live Nation, Raises Monopoly Concerns

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UNITED STATES – JANUARY 24: Joe Berchtold, president and CFO of Live Nation Entertainment, testifies during the Senate Judiciary Committee hearing titled Thats the Ticket: Promoting Competition and Protecting Consumers in Live Entertainment, in Hart Building on Tuesday, January 24, 2023. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

Live Nation president and CFO Joe Berchtold apologized Tuesday for the debacle surrounding ticket sales for Taylor Swift’s “Eras” tour, but the company’s contrition didn’t ease the heat coming from the Senate Judiciary Committee at its hearing focused on competition in the ticketing industry.

“In hindsight there are several things we could have done better,” Berchtold testified. “And let me be clear, Ticketmaster accepts its responsibility as being the first line in defense against bots in our industry.”

The bot scourge was certainly a point of discussion, though probably not to the degree Berchtold would prefer as he faced an unusually bipartisan barrage of criticism, with senators of both parties disclaimed against the perceived lack of competition, unafraid to cast the Live Nation-Ticketmaster behemoth as a monopoly.

“You have brought together Republicans and Democrats in an absolutely unified cause,” Sen. Richard Blumenthal (D-CT) said.

Blumenthal pointedly noted just how impervious the panel would be to Ticketmaster pointing fingers for its failures.

“Ticketmaster had the temerity to imply that the debacle involved in pre-ticket sales was Taylor Swift’s fault because she was failing to do too many concerts, “he said. “May I suggest respectfully that Ticketmaster ought to look in the mirror and say, ‘I’m the problem, it’s me.’”

Of particular concern was Live Nation’s ticketing deals with the top end of the industry, holding contracts with more than 80 percent of NBA and NHL arenas and NFL stadiums. Berchtold argued that since the 2010 merger, competition has increased in the ticketing market — SeatGeek CEO Jack Groetzinger cheekily thanked Berchtold for the compliment during his testimony — but skepticism ruled the day.

Even conservative stalwarts provided little relief for Berchtold. Sen. Josh Hawley (R-MO) didn’t shy away from calling Live Nation a monopoly. Sen. John N. Kennedy (R-LA) suggested a nationwide ban on transferring tickets — he seemed to get little support from witnesses or his fellow lawmakers — but still took the time to hammer Live Nation.

“Mr. Berchtold, I’m not against big, per se. I’m against dumb,” Kennedy said. “The way your company handled the ticket sales with Ms. Swift was a debacle.”

It’s beyond Congress’s power to reverse the merger — such break-ups generally come as the result of the Department of Justice’s enforcement of antitrust legislation — but there was clearly support for the action from senators on both sides of the aisle.

“You leverage market power in one market to get market power in another,” Hawley told Berchtold..

Kathleen Bradish of the American Antitrust Institute testified uncoupling Live Nation and Ticketmaster is, in fact, the only acceptable outcome. Groetzinger joined her in that view, as did Jam Inc.’s Jerry Mickelson. Even Sal Nuzzo with the free-market, limited government, states’-rights focused James Madison Institute conceded a break-up is worth a look.

Naturally, of course, Berchtold said Ticketmaster’s hold on the industry isn’t the result of anti-competitive practices but because Ticketmaster and Live Nation offer the best product to the consumer, artists and venue. At the same time, though, he suggested that the company’s well-documented issues with the Swift on-sale was primarily caused by bots and the industrial-level scalpers they service.

But that opened him up to criticism from Sen. Marsha Blackburn (R-TN), who asked why Ticketmaster was incapable of stopping the bots when so many other industries have had more success.

“Why is it that you have not developed an algorithm to sort out what is a bot and what is a consumer?” she asked