Grassroots Effort Pushes Back TM’s Restrictive Policy
A Missouri grassroots effort to open up Ticketmaster’s Restrictive Ticket Policy has gotten the attention of the entertainment giant, especially as it makes its way through the state legislature. Ticketmaster has unleashed a mother lode of lobbying tactics in order to stop it from becoming law.
House Bill 939, which would prohibit ticket vendors from selling restricted tickets for entertainment events. Rep. Tracy McCreery (D-88) and Fmr. Republican Rep. Carl Bearden, are on opposite sides of the political aisle, yet both want to protect consumers for “restricted tickets” such as credit card entry.
Restrictive ticketing policies wasn’t something that McCreery thought she would have been dealing with while serving on the Consumer Council of Missouri board. Yet, she kept hearing constituent complaints about Ticketmaster and decided to investigate.
Likewise, Bearden hadn’t been aware of any restrictive ticket policies, until he was educated on the problem, then recognized the growing phenomena over the past couple of years.
Together, McCreery and Bearden focused on changing the system. The pair co-wrote an Op-Ed for Columbia Daily Tribune April 26, advocating that a ticket is transferable and personal property, not a revocable license.
TM Policy And Federal Law Don’t Mesh
Bearden and McCreery are not alone, as other paperless ticket critics have claimed that it is a loss for the consumer to use a restrictive system.
While tickets may have fallen for a while into a legal quagmire of being declared a ‘revocable license’ by Ticketmaster, even The U.S. Supreme Court has disagreed. In a 6-3 decision, the 2013 ruling in Kirtsaeng v. John Wiley & Sons, Inc., sided with the book reseller who had purchased books in his native country for cheaper, then resold them in the United States for a profit. Publishers were told that they could not eliminate or revoke the licenses of books resold, because once they were originally sold, as a piece of property, they were passed onto the new title holder. While the U.S. Supreme Court has not ruled specifically on the role of tickets, the current lawsuit structure may provoke a Federal case through the courts, and may end up qualifying for a specific ruling.
Likewise, U.S. Copyright and Trademark has an established first-sale doctrine since 1908, stating that reselling of a trademarked product is enabled once the trademark holder puts the products on the market.
“I feel Ticketmaster should win some kind of award for all of this, since Carl Bearden and I don’t usually see eye to eye on anything,” McCreery said. “Most of the time, people on different sides of the aisle are arguing about what color the sky is, but when they hear about this, it brings us together on an issue.”
Despite the ideological differences between Bearden and McCreery, it came down to finding a middle ground where two separate issues melded.
“For me, its a property rights issue, for her, it’s a consumer affairs issue,” Bearden said. “It just so happens that those two issues meld. And we’ve been able to convince republicans and democrats that this isn’t a partisan issue, but it is something that we can do to protect consumers and keep a free market balance.”
Country Star Eric Church’s Concert Becomes Ground Zero
Ticketmaster’s response to HB 939 has been a full-throttle assault, with a lot of lobbying at the state Capitol, McCreery said.
“I feel like its David vs. Goliath, but I’m used to being the underdog on issues,” McCreery said. “But when Carl Bearden and I talk to legislators one-on-one about the restrictive ticketing issue, we get traction on it.”
Bearden said that when HB 939 went to its first committee hearing and was voted over to a second committee, that’s when the Ticketmaster-hired lobbying firm combated the restrictive policy change.
“Then they started pulling out all of the stops and honestly started misrepresenting the facts. But that’s hurt them,” Bearden said. “We still have some difficulty, the second committee chairman that the bill went to was affected by the Ticketmaster lobbyist, delaying it a couple weeks, we did vote on it last week, and we’re checking to make sure that he gets that reported out.”
McCreery said that Ticketmaster’s lobby efforts have not been the most up-front and truthful, specifically when it came to country music star Eric Church’s May 8, 2015 concert in Columbia, Missouri.
“Every single ticket to that show is restricted and the Ticketmaster lobbyist says that the consumer has options, because they can decide not to go to the show,” McCreery said. “But that’s what makes me so angry, because the lobbyist is saying something so ridiculous. She says that if the consumer wants to, they can drive two-and-a-half hours to Columbia, Missouri, in the middle of nowhere, to argue with some teenager at the box office about the restrictive ticketing policy. That’s just not going to happen.
Bearden said that the state’s attorney general got involved with Ticketmaster over the Church concert, forcing the company to amend their online portal to reflect language about restrictive ticketing policies.
“The Missouri Attorney General told them that they have to plainly put on their website what restrictive ticketing is and what it means,” Bearden said. “And we’re going to have folks at the concert as well, interviewing people, asking if they knew that their tickets were non-transferrable. What we are trying to do is protect the consumer’s right to the tickets that they purchased.”
Is TM A Monopoly?
Beyond that, Church’s concert is actually one of the latest battlegrounds in the restrictive ticketing debate between Ticketmaster and HB 939’s advocates. Bearden said that the problem is that Ticketmaster allows consumers no choice and holds a monopoly in the marketplace, especially with restrictive policies that don’t allow consumers to transfer to resell their tickets.
“We believe it would wrong to have Ticketmaster control the primary and secondary market. Once you have that monopoly, and control 90% of the primary market, if they get ahold of the secondary market, what does that mean for consumer choice?” Bearden said. “Sure, you don’t have to go to that show. But if you’re controlling 80-90% of the venues, that doesn’t leave the consumer a lot of options.”
McCreery said that she has had a lot of support for HB 939, especially after the Op-Ed ran.
“I’ve had a lot of strangers supporting what we’re doing. A lot of people who I don’t know who are telling me this is happened to them, that they get sick, can’t make a show, and can’t transfer it to anyone. I posted the editorial on Facebook, and started hearing from a lot of people about their experiences,” McCreery said.
McCreery said that it comes down to education. At first, some of her friends who were avid concert-goers, didn’t understand the need for legislation against restrictive ticketing.
“They don’t think that there’s an issue there,” McCreery said. “But then I go over the issues, and educate them, and have them look at the screen to see what it says when they are buying a ticket. That’s when their eyes open to the problem.”
Asserting Personal Property Rights Of Ticket Holders
Bearden said that he considers a ticket to be personal property of the ticket buyer, not a revocable license by the venue, ticket platform or ticket entity.
“You own the right and use of that ticket,” Bearden said. “We compare it to buying software. You buy a license, you don’t own the software, but until you install that software on your machine, you have the right to sell it, trade it or give it away, but if you use it, then you are subject to the terms.”
Bearden says that Ticketmaster’s control in every state resembles a utility monopoly.
“It’s not a market that does not benefit the consumers,” he said. “By putting the inmates in charge of the asylum, you end up hurting people.”
While not a fan of standard regulations, Bearden said that absent of necessary regulations, there is no balance in the system.
“Yes, its a regulation, and I don’t necessarily like regulations and laws, but this is one that balances out the market,” Bearden said. “The Founders didn’t intend to have regulations on the free market, but they recognized there needed to be some balance, and I believe that this regulation fits that balance.”
Bearden said that the ideological issues with conservatives understanding the bill have been overcome, as the main concern was adding regulation over a free market.
“But we’re protecting the free market. Particularly when considering that a lot of these events are held in public paid for, public subsidized stadiums,” Bearden said. “It’s a very delicate balance that allows the use of restrictive ticketing, but what it does say is that you have to give the consumer the alternative of a paper or email ticket. We tried to balance all of that out.”
HB 939 also addresses what a ticket is, and is not, in the eyes of Missouri state law. That runs in conflict with Ticketmaster’s legal definition of a ticket.
“Our bill doesn’t specifically use those terms ‘a ticket is private property,’ but what it does clearly say is that once you purchase that ticket, and have elected to get a paper or email ticket, that you have the right to do with that ticket whatever you want,” Bearden said. “So, that essentially, while it doesn’t say personal property rights, legally that would be sufficient.”
Bearden said that the public has been very supportive of the efforts to push HB 939 through into law.
“We’ve had a lot of great support back from the public. Hundreds of emails going to the Missouri House Speaker to make sure the bill is supported so we can get it on the calendar,” he said. “We’ve had a lot of great response, including on our Facebook page. It’s been well-received by the public because they get the fact that they all think that they own those tickets once they buy them.”
Looking Toward The Legislative Future Of HB 939
Another aspect of the restrictive ticketing policy that McCreery believes is just as vital is ending the monopoly aspect of being charged a fee in order to transfer or resell a ticket, especially when forced to by Ticketmaster only.
“In terms of Colorado and New York, I look at those two states as role models for what we are doing. We should be giving the purchaser options,” McCreery said. “And they shouldn’t be charged a fee for transferring the tickets either. I don’t care if it’s a penny, its the principle of the matter, especially when it comes to a service fee aspect on the secondary market.”
Both Bearden and McCreery say that they are in this fight against restrictive ticketing for the long haul. Whether it gets onto the legislative calendar in time, or has to happen next year.
“We only have until May 15 to finish it, so we’re working it getting as far as it can, so if it doesn’t go through, we have it in a good place next year,” Bearden said.
McCreery agrees with Bearden’s assessment on an end-game for HB 939 and restrictive ticketing policies in Missouri.
“No matter what happens in the next few weeks of the session, whether we’re successful at getting it through or not, Carl Bearden and I are going to see this through,” McCreery said.
Despite Ticketmaster’s lobbying efforts at the Missouri Capitol, Bearden sees it as an opportunity for a future victory for HB 939.
“They have to fight against the issues and facts, sometimes presenting half-truths. I would suspect that they’ve had a lot of lobbyists in the last week at the capitol, trying to defeat it in committee. When they do that, it kinda makes you smirk a little bit when they lose.”