By Kasey Hall
For a while now, there has been a growing call from industry insiders for more robust antitrust enforcement to investigate the practices of Live Nation Entertainment.[1] However, these concerns were mainly brushed aside by the general public until recently when Taylor Swift fans stormed the Ticketmaster website in mass to purchase tickets to a long-awaited tour, only to come up empty-handed.[2] The sheer amount of fans flocking to the website was enough to cause Ticketmaster’s system to crash and, in turn, galvanize more support for antitrust enforcement.[3]
In 2010 Live Nation Entertainment (“Live Nation”) was formed through the merger of Ticketmaster and Live Nation.[4] Ticketmaster, already well known for being an industry giant in the concert ticket space, merged with Live Nation, an up-and-coming regional events promoter.[5] Live Nation was seen as a potential challenger of Ticketmaster’s ticket-selling business, so there was a high degree of skepticism about Ticketmaster’s purchase of a future competitor.[6] At the time of their impending merger, many consumer watchdog groups and a coalition of bipartisan lawmakers pleaded with the Obama administration to block the deal, fearing that decreased competition in this market would unduly hurt consumers.[7] Today, Live Nation holds a substantial market share of over 70%.[8] Without large-scale competition, Live Nation has been able to seize more market share and increasingly raise its prices as it knows consumers have nowhere else to turn.[9]
Many are concerned about the country’s widening income and wealth inequality, and the strengthening of industry competition should appeal to large swatches of the American public.[10] Evidence shows that U.S. antitrust laws have “been too lax toward consolidation” and that a more aggressive approach is needed to combat the rise in horizontal and vertical mergers.[11] The concept is simple; more market competition increases the fight among businesses for sales and customers, something critics argue Live Nation has not had to worry about since its merger.[12] Predictably, Live Nation has had less of a need to innovate to win over new customers. Instead, it has only allowed Live Nation to raise its prices and fees, squeezing consumers.[13] Live Nation, through its monopolistic control of the concert market, has been able to add on additional hidden fees such as; service fees, processing fees, facility fees, and promoting fees and label them as merely “an extension of the ticket price.”[14]
The U.S. Department of Justice differs from 12 years ago and should bring more antitrust cases forward. Officials within the Biden administration have been continually pushing back on major mergers signaling a shift in antitrust enforcement philosophy.[15] In an executive order dated July 9, 2021, the Biden administration cited federal government inaction over the last several decades as a significant factor leading to excess industry consolidation.[16] The Federal Government has the authority to mount challenges to significant moves in industry consolidation through the Sherman Antitrust Act, the Clayton Antitrust Act, or other laws.[17] Similarly, President Biden has tasked federal agencies such as the Federal Trade Commission to increase their exercise of regulatory authority over industry mergers.[18]
Without stronger federal antitrust enforcement, consumers will have fewer choices, higher prices, and less customer satisfaction in this modern era of big mergers.[19] Live Nation, in the past, has shown a “sense of entitlement and dismissiveness toward their customers.”[20] Suppose Live Nation still holds that sentiment today. In that case, there should be enough support from lawmakers, industry insiders, and the general public for the U.S. Department of Justice to not only investigate but to go further and attempt the long process to break them up.
[1] Winston Cho, Activist Group Asks Justice Dept. to Unwind Live Nation and Ticketmaster Merger, The Hollywood Reporter (Oct. 19, 2022, 7:00 AM), https://www.hollywoodreporter.com/business/business-news/activist-group-justice-dept-unwind-live-nation-ticketmaster-merger-1235244376/.
[2] Peter Cohan, Taylor Swift Overwhelms Live Nation-Ticketmaster’s 70% Monopoly, Forbes (Nov. 18. 2022 4:26 PM), https://www.forbes.com/sites/petercohan/2022/11/18/taylor-swift-overwhelms-live-nation-ticketmasters-70-monopoly/?sh=74272462685f.
[3] Id.
[4] David Segal, Calling Almost Everyone’s Tune, N.Y. Times (Apr. 24, 2010), https://www.nytimes.com/2010/04/25/business/25ticket.html.
[5] Id.
[6] Id.
[7] Bill Pascrell Jr., Op-Ed: Everyone’s worst fears about the Live Nation-Ticketmaster Merger have come true, L.A. Times (May 17, 2018, 4:05 AM), https://www.latimes.com/opinion/op-ed/la-oe-pascrell-live-nation-concert-ticketing-20180517-story.html.
[8] Florian Ederer, Did Ticketmaster’s Market Dominance Fuel the Chaos for Swifties?, Yale Insights (Nov. 23, 2022), https://insights.som.yale.edu/insights/did-ticketmasters-market-dominance-fuel-the-chaos-for-swifties.
[9] Id.
[10] Modern Antitrust Enforcement: Modern U.S. antitrust theory and evidence amid rising concerns of market power and its effects, Yale School of Management, https://som.yale.edu/centers/thurman-arnold-project-at-yale/modern-antitrust-enforcement.
[11] Id.
[12] See Pascrell Jr., supra note 6.
[13] Id.
[14] Id.
[15] Emily Birnbaum, Biden Team to Push ‘Ambitious’ Antitrust Crackdown on Big Tech in Congress, Bloomberg (Nov. 4, 2022, 4:21 PM), https://www.bloomberg.com/news/articles/2022-11-04/biden-plans-ambitious-antitrust-crackdown-on-big-tech-post-midterms?leadSource=uverify%20wall.
[16] Exec. Order No. 14036, 86 FR 36987 (2021).
[17] See 15 U.S.C. 18; Standard Oil Co. v. United States, 221 U.S. 1, 60-62 (1911).
[18] Exec. Order No. 14036.
[19] Modern Antitrust Enforcement: Modern U.S. antitrust theory and evidence amid rising concerns of market power and its effects, supra note 9.
[20] See Pascrell Jr., supra note 6.
Image Source: https://nypost.com/2021/04/20/biden-urged-to-probe-live-nation-ticketmaster-monopoly/