Policy Alert: Executive Order on the Live Entertainment Market

Action: On March 31 the President issued an Executive Order targeting ticket scalpers and resale platforms charging excessive prices and fees for live entertainment, directing the Attorney General and Federal Trade Commission (FTC) to ensure “competition laws are appropriately enforced,” including the Better Online Sales (BOTS) Act. It also directed the FTC to act, including by proposing regulations, to ensure price transparency during the ticket-purchase process.

Key Insights

• Concert ticket pricing and associated fees have drawn growing scrutiny from policymakers in recent years. The 2016 BOTS Act, for example, made it illegal to circumvent security measures on ticket sellers’ websites, to prevent bots from purchasing large quantities of tickets for resale. However, the Act has been lightly enforced, with the first case not brought until 2021.
• FTC regulations in 2024 also require price transparency in the live-event ticketing industry.
• Aside from the potential effects on the ticket retail market, the President’s order is particularly noteworthy because it directs the FTC – an agency Congress designed to operate independently – to take specific enforcement and regulatory actions.
• According to its authorizing statute, the FTC is governed by five Commissioners, who are nominated by the President and confirmed by the Senate, each serving staggered seven year terms. The President may remove Commissioners or “inefficiency, neglect of duty, or malfeasance in office.” The statute also prohibits more than three of the Commissioners from being from the same political party.
• Previous Presidents have influenced the FTC primarily through this nomination process, appointing Commissioners who reflect their policy priorities. They have also suggested the agency focus on specific issues – for example, a 2021 Executive Order “encouraged” the FTC to consider regulations limiting the use of non-compete clauses.
• However, the current Administration has taken a very expansive view of the President’s authority, issuing an order in February that independent regulatory agencies “must be supervised and controlled” by the President to be accountable to the American people and requiring that they “submit for review all. . . significant regulatory actions” to the Office of Management and Budget for review. This Order has been challenged in court because of its impact on the Federal Election Commission, and the court’s decision could raise broader questions about the Order’s legality as it pertains to other independent agencies (including the Federal Reserve). 
• The FTC has also been impacted by the resignation of its former chair and the President’s firing of the Commission’s two Democratic members, using the authority of the February Order seeking to exert control over independent regulatory agencies. The two fired Commissioners have sued for reinstatement to their positions. In addition, while Federal law and regulations may allow the Commission to operate with only the two remaining Republican Commissioners, decisions made under this arrangement could face legal challenges depending on how the courts interpret the President’s authority.
• It is likely that these legal questions will ultimately be resolved by the Supreme Court.