A pair of U.S. Senators are asking the Federal Trade Commission about “bot” attacks in ticketing, questioning whether or not the nefarious software played a role in the disastrous Taylor Swift Eras Tour presale in November. Senators Marsha Blackburn (R-Tenn.) and Richard Blumenthal (D-Conn.), the Ranking member and Chair of the Senate Commerce, Science, and Transportation Subcommittee on Consumer Protection, Product Safety, and Data Security, sent a letter to FTC Chair Lina Khan seeking information about how the regulator is combatting the use and operation of bots in the online ticketing ecosystem.

The use of bots – the common terminology for software programs that can rapidly reserve and purchase tickets before humans have a chance to do so – has been illegal since 2016 when President Barack Obama signed the Better Online Ticket Sales (BOTS) Act into law. Senators Blackburn and Blumenthal were co-sponsors of that bill.

“The recent difficulties consumers have faced while attempting to purchase tickets is a serious concern and reflective of anti-competitive conduct in the online ticket marketplace,” said Senator Blackburn. “Fortunately, a solution is already in place that would go a long way in reducing ticket costs and protecting consumers and artists from scammers. The federal government needs to get serious about implementing my legislation, the BOTS Act, immediately.”

“The Better Online Ticket Sales Act gave the FTC and state attorneys general the tools they need to crack down on parasitic online ticket bots – now they need to use them. Without adequate enforcement of this anti-consumer software, regular fans are still being unfairly priced out of seeing their favorite singer or hometown sports team. We’d like to know what steps the FTC plans to take to ensure that consumers have fair access to the events they want to see,” said Senator Blumenthal.

In their letter, the senators ask four primary questions:

  1. Does the FTC have any BOTS Act enforcement matters before it?
  2. Why has there only been one enforcement act to date?
  3. Are there obstacles to enforcement that Congress should know about?
  4. Are there other solutions that Congress should consider beyond BOTS enforcement?

As the questions imply, the BOTS Act has seen just one enforcement action taken since it was signed into law in 2016, with three companies settling charges brought by the Justice Department for violations of the BOTS Act in January 2021. In those cases, the companies involved used bots designed to “fool tests designed to prevent nonhuman visitors” and other programs designed to hide the IP addresses of computers used to purchase tickets, but no evidence of programs that were deployed to purchase tickets.

The apparent lack of actionable “bot” violations were pointed to by TicketNetwork spokesperson Sean Burns as a reason that lawmakers shouldn’t just focus on the hot-button software talking point if there is a desire to truly improve the consumer ticketing experience while there is such a harsh spotlight on it from the Taylor Swift situation.

“TicketNetwork supports the Federal Trade Commission continuing to enforce existing law banning the use of automated programs to buy tickets in bulk,” he said in a statement issued Thursday. “While the “BOTS” act has been in force since 2016, only one enforcement action has resulted, which shows that the modern ticketing landscape has largely moved on from these tactics.”

“While the FTC continues its enforcement of the BOTS act, we would also urge lawmakers to consider the meaningful improvements to the consumer ticket purchase process that transparency on the distribution and timing of the sale of tickets would bring,” he continued.

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“For years, investigations have shown that promoters and event rights-holders regularly hold back a huge percentage of tickets, allocating some to presales, diverting many to partners, or holding them back during the initial sale to be released for sale at a later date. The net impact of these tactics is to convince the ticket-buying public that shows are sold out, or close to sold out, which keeps prices inflated by implying the available supply of tickets is far lower than it actually is.”

The lack of BOTS Act violations hasn’t stopped companies such as Ticketmaster and Live Nation to continually sound the alarm that “bots” have been the central culprit when fans don’t get tickets to high-demand events. Almost universally, fan complaints about ticket sales failures are met with the excuse that bots played a role, including the blaming of the Taylor Swift onsale woes on the problems faced by consumers during that sales process, despite the fact that the “Verified Fan” system – which touts its ability to box out bots as its core function – was in place for every date, even those that were not sold by Ticketmaster.

A 2019 report by Distil Networks – a bot mitigation company that is a client of Ticketmaster/Live Nation’s – showed that there is no actual data on bots that get through systems to try to purchase tickets faster than humans, only raw numbers of “bots” detected and stopped.

“The simple answer is, we don’t know,” says Edward Roberts, Director of Product Marketing at Distil Networks. “In our role, since we see billions of ticketing requests every year, we concentrate on blocking bots rather than performing forensics to identify the person behind the bot request.”

While the company issued research on an aggregate 26.3 billion requests from “bad bots” across 180 domains in the building of its oft-cited ticket industry bot research, it couldn’t specify what amount of that traffic was actually the kind of bot consumers are led to believe is so ubiquitous – bots buying tickets faster than consumers can. It’s primary function isn’t to sort out what “bots” are there to grab tickets, or what ones are just there checking on prices and seats hitting the market as another wave of held-back tickets by promoters hits the web.

“It’s key to understand that once Distil detects and blocks a bot, it is prevented from achieving its intended goal, making it even more difficult to understand its true intent.”

Distil cites one particularly egregious instance of automated bot-buying in bulk – “One bot alone scooped 1,012 tickets to a concert in one minute” reads the intro to its “Beating bad bots and restoring fairness to ticketing” report. But a bit of googling shows that this instance occurred related to a U2 show – in 2014. Two years prior to the passage of the BOTS act. Also, the company related to that purported score was prosecuted by the New York Attorney General’s office and settled at a cost of $3.4 million.

While Blackburn has come out strong against the idea that any new action is necessary to improve the consumer ticketing experience (beyond enforcing the existing BOTS Act), other lawmakers are pushing for a hard look at Ticketmaster and Live Nation as potentially monopolistic and in need of structural remedy to improve the competition landscape. More than Senators Amy Klobuchar (D-MN) and Mike Lee (R-UT) have announced plans for a senate hearing to be held on competition in the ticketing industry in front of the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights.

Senator Blumenthal and fellow Democrat Edward Markey of Massachusetts also joined Senator Klobuchar in calling on the Department of Justice to investigate Live Nation/Ticketmaster with an eye for anti-competitive behavior.

“If the investigation reveals that Live Nation has continued to abuse its dominant market position notwithstanding two prior consent decrees, we urge the Department to consider unwinding the Ticketmaster-Live Nation merger and breaking up the company,” the senators wrote. “This may be the only way to truly protect consumers, artists, and venue operators and to restore competition in the ticketing market.”

The full letter from Senators Blackburn and Blumenthal regarding the BOTS Act is available here.

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