BOSS and SWIFT Act: Will it End the Live Ticket Event Purchasing Craze?

If you are a music lover, concert goer, or festival fanatic and you have experienced emotional injuries from a ticket purchasing experience, you may be entitled to compensation. Well, not quite, but you should be. Lately, the live event ticket marketplace has had its fair share of time in the news. From Ticketmaster’s Taylor Swift Eras tour debacle to Bruce Springsteen’s steep ticket prices of up to $5,000, those who love loud noises in crowded spaces have felt the chaos of the live ticket drop.[1] With racing hearts and slow internet speeds, many of these fans have returned broken-hearted or in debt from the flawed system that is the live event ticket marketplace.

History

This frustration from fans and artists alike is not a new feeling. Pearl Jam has been fighting with Ticketmaster since 1992, when the band planned to play a free Labor Day concert and Ticketmaster fought to have a $1 service fee for every ticket.[2] Pearl Jam then decided to hand out tickets on its own.[3] Later in 1994, the band announced it would only perform at venues that sold tickets at a maximum of $18 and service fees at $1.80.[4] At the time, Ticketmaster service fees ranged from $4-$8.[5] Since the band was unable to work within the requirements of Ticketmaster, it tried to tour outside of the Ticketmaster system.[6] Ticketmaster responded by organizing a general boycott of the tour, employing veiled legal threats to promoters that ultimately led to the band waiving the white flag in its battle against Ticketmaster.[7] The Justice department then launched an investigation into whether Ticketmaster formed a concert-ticket monopoly, and band members of Pearl Jam testified before the House subcommittee.[8] This resulted in the proposal of legislation called the Ticket Fee Disclosure Act, which was subsequently dubbed the Pearl Jam Bill.[9] The bill required sellers and resellers of live event tickets to clearly state the ancillary fees and charges outside of the face value of the tickets.[10] The proposed bill failed to become law and, in the summer of 1995, the Justice Department closed its investigation.[11] The problems the bill had hoped to address remain present today. Bruce Springsteen fans faced a similar conundrum nearly thirty years later when they raced to Ticketmaster to obtain tickets for his 2023 U.S. arena tour and faced shocking prices under Ticketmaster’s “dynamic pricing” program.[12] Some floor seats even skyrocketed to $5,000 per ticket.[13]

BOSS and SWIFT Act

The BOSS and SWIFT Act was proposed on September 27, 2023, to address these ticket buying concerns.[14] The Act is named after Bruce Springsteen and Taylor Swift, two prominent artists who have faced disruptions during ticket sales.[15] Senator Richard Blumenthal (D-CT), who supports the legislation, stated that the standards in the Act aim to “bring fairness and transparency to fans, artists, and venues who power this industry.”[16] The Better Oversight of Stub Sales and Strengthening Well Informed and Fair Transactions for Audiences of Concert Ticketing Act attempts to fix the broken ticket marketplace and protect consumers by mandating ticket sellers to be transparent during the ticket buying process.[17] It breaks down its goals through three main sections: transparency requirements, primary ticket seller requirements, and secondary ticket seller and marketplace requirements.[18]

 Transparency Requirements

Under the proposed bill, all primary and secondary ticket sellers and marketplaces would be required to disclose the total cost of the ticket, including an itemized price of the ticket that lists ancillary charges.[19] This price must be displayed in advertisements and may not change during the purchasing process unless the customer is informed of this change.[20] The seller must disclose whether the ticket is offered as a primary or secondary sale and disclose the refund policy for the sale.[21] If the ticket is not delivered, the seller must provide the purchaser with the option for a full refund or a “replacement ticket in a comparable or upgraded location.”[22] The seller is prohibited from designing the ticket purchasing interface in a way that obscures the user from making informed choices regarding their purchase and must not knowingly sell the same seat to more than one purchaser.[23] Lastly, the Act would mandate that the seller report “any actual or constructive knowledge of activity” that might violate the Better Online Ticket Sales (BOTS) Act, which prohibits the circumvention of technological security measures used by online ticket purchasing websites.[24]

 Primary Ticket Seller Requirements

Under this section, a primary ticket seller would be required to disclose the total number and cost of the ticket seven days before the date of the primary ticket sale.[25] Primary ticket sellers could not restrict primary ticket purchasers from reselling their tickets in a secondary market of their choosing.[26] Further, they would be prohibited from requiring a minimum or maximum price for the resale of an already purchased ticket.[27] The Act would further protect secondary purchasers by preventing discrimination of a secondary purchaser on the basis that they did not buy the ticket from a primary ticket seller.[28]

 Secondary Ticket Seller Requirements

A secondary ticket seller would have to disclose that the available ticket is not in the control of the secondary ticket seller, if applicable.[29] Additionally, they must disclose when they are also the primary ticket seller for the venue or artist associated with the event and provide a clear explanation regarding the refund process.[30] Regarding the ticket price, the secondary ticket seller would disclose the timing and method of delivery, and the location of the seat available for purchase.[31] A secondary ticket sales marketplace must also clearly communicate to the purchaser that they are engaged in the secondary sale of the ticket and that the marketplace is not affiliated or endorsed by the event, venue, or artist, and is prohibited from using a name that may confuse a purchase into believing that they are associated with that event, venue, or artist.[32]

Implications

Regulating ticket sales is a multidimensional issue that is hard to tackle with the slow-moving power of Congress—que the political buzzwords and dramatization about the barriers preventing the resolution of ticket sale issues—but that’s no excuse!

By ensuring that fans cannot be sanctioned for reselling tickets and cannot be restricted by a minimum or maximum price, these proposals protect scalpers and secondary ticketing platforms.[33] Supporting consumers by affording them protection when they choose to sell their ticket also protects scalpers who use the same process to double or triple the ticket price and turn a profit.[34] A truly successful piece of legislation must recognize that the interests of the honest secondary ticket seller can be just as easily exploited by a scalper.

Fix the Tix is a coalition that aims to stop price gauging and predatory ticket practices, and “represents stakeholders who take on all the risk to create once-in-a-lifetime experiences . . . to communities across America.”[35] Fix the Tix members include big name organizations like SAG-AFTRA, Eventbrite, the Recording Academy (bestower of the coveted GRAMMY Award) and TIXR, to name a few.[36] The coalition states that the face value of tickets has increased by ten percent, while resale ticket prices on platforms such as Stubhub have risen by over 100 percent since 2019.[37] Fix the Tix recognizes that fans and artists are experiencing the consequences of an unregulated secondary ticket market and, even though the proposed act “provides some transparency for consumers, it does so in exchange for anti-fan and anti-artist handouts for scalpers and secondary ticketing platforms that do not contribute to the live entertainment ecosystem.”[38] The coalition has a detailed roadmap for fixing the ticketing experience for fans and artists, which includes making it illegal for resellers and other platforms to go against artist and venue terms and conditions which would include restrictions on price gauging through the resale of tickets above the original purchase price.[39] Additionally, Fix the Tix calls for a strengthening of the BOTS Act.[40] The coalition also calls for updates to the legislation that keep pace with the technological advancements that resellers use and call for a requirement of confidential reporting to the FTC of any of these violations.[41]

The BOSS and SWIFT Act attempts to support the rights of ticket buyers by prying open the doors of the live event ticket marketplace and shining a light on the undisclosed information that prevented informed purchasing. The disclosure requirement of ticket inventories is a positive step to get the power back into the hands of real fans but it also protects scalpers and price gauging in the process.[42] Although this issue is complex, with one researcher claiming that concert-ticket sales are comparable to the mortgage-backed securities issue at the center of the 2008 financial crisis, the BOSS and SWIFT Act does not resolve the issues that fans face when they attempt to buy tickets to see their favorite artist.[43] Even though the Act allows customers to understand where their money is going by calling for transparent price break downs and refund policies, this knowledge does not give customers the ability to fight the skyrocketing ticket prices. The BOSS and SWIFT Act fails to recognize that informing the consumer of the price before they pay does not give them greater autonomy in their purchasing choices, it simply extends the dread further back into the ticket purchasing process. As Fix the Tix stated, the problem is the price, not that the consumer is unaware of the price.[44] For the Act to accomplish its goal of keeping tickets in the hands of real fans, it needs to do a better job at stopping the scalpers and bots that create the exorbitant secondary ticket sale prices and must enlist the help of artists and venues to create a price maximum for secondary ticket seller venders. Power to the music lovers!

[1] Daniel de Vise, From Pearl Jam to Congress to Springsteen: Five of the biggest Ticketmaster dustups, The Hill (Nov. 19, 2022), https://thehill.com/changing-america/enrichment/arts-culture/3742639-from-pearl-jam-to-congress-to-springsteen-five-of-the-biggest-ticketmaster-dustups/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Aimee Miller, House Bill Would Require Disclosure of Ticket Fees, The Wash. Post (Aug. 23, 1994), https://www.washingtonpost.com/archive/lifestyle/1994/08/23/house-bill-would-require-disclosure-of-ticket-fees/80e5436d-1097-48bd-bb30-49a636875a7a/.

[10] Id.

[11] de Vise, supra note 1.

[12] Steve Appleford, $5,000 freeze-out: Bruce Springsteen fans feel betrayed by ‘crazed’ concert ticket prices, L.A. Times (July 29, 2022 6:00 AM), https://www.latimes.com/entertainment-arts/music/story/2022-07-29/bruce-springsteen-concert-ticket-price-ticketmaster.

[13] Id.

[14] Blumenthal, Hirono, & Markey Introduce BOSS & SWIFT Act to Protect Consumers From Predatory Ticket Sellers & Fees, Blumenthal Senate Gov (Sept. 27, 2023), https://www.blumenthal.senate.gov/newsroom/press/release/blumenthal-hirono-and-markey-introduce-boss_swift-act-to-protect-consumers-from-predatory-ticket-sellers--fees.

[15] Id.

[16] Id.

[17] Id.

[18] BOSS and SWIFT Act, H.R. 3660, 118th Cong. (2023).

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.; 15 U.S.C. § 45c.

[25] BOSS and SWIFT Act; supra note 17.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Chris Cooke, Fix The Tix Coalition opposes BOSS ACT because of pro-touting provision, Complete Music Update (May 20, 2023), https://archive.completemusicupdate.com/article/fix-the-tix-coalition-opposes-boss-act-because-of-pro-touting-provisions/.

[34] Fix the Tix Plan, Fix the Tix, https://www.nivassoc.org/fixthetix (last visited Jan. 6, 2023).

[35] APAP joins live event industry coalition to FIX the TIX, Association of Performing Arts Professionals, https://apap365.org/apap-joins-live-event-industry-coalition-to-fix-the (last visited Jan. 6, 2024).

[36] About the Recording Academy, Recording Academy, https://www.recordingacademy.com/about (last visited Jan. 6, 2024).

[37] Bills to Reform Live Event Ticketing, National Independent Venue Association, https://www.nivassoc.org/fixthetix (last visited Jan. 6, 2024).

[38] Stuart Dredge, The BOSS and SWIFT ACT draws criticism from Fix The Tix, Music Ally (May 31, 2023)

 https://musically.com/2023/05/31/the-boss-and-swift-act-draws-criticism-from-fix-the-tix/.

[39] Fix the Tix Plan, supra note 33.

[40] Id.

[41] Id.

[42] U.S. Senate Introduction of BOSS and SWIFT Act, Protect Ticket Rights,

https://www.protectticketrights.com/news/105/U+S+Senate+Introduction+of+BOSS+and+SWIFT+Act (last visited Jan. 6, 2024).

[43] John Seabrook, The Price of the Ticket, The New Yorker (Aug. 3, 2009), https://www.newyorker.com/magazine/2009/08/10/ticketmaster-live-nation-bruce-springsteen.

[44] Fix the Tix Plan, supra note 33.