Secondary ticketing platforms like StubHub, SeatGeek and Vivid Seats are accused of dressing up weak policy arguments in “constitutional garb” after failing to block new ticket touting regulations within the US District Of Columbia - aka Washington DC - through democratic processes.
Those new regulations were passed by local lawmakers earlier this year and are set to go into force in January, introducing a 10% price cap on touted tickets within the US capital, and also forcing more transparency on the touts, including ensuring that the original price of each ticket being touted is clearly displayed.
The Ticket Policy Forum, which lobbies on behalf of various ticket resale platforms, filed a lawsuit just weeks after the new touting laws were passed, seeking to block the new rules on constitutional grounds. It also wants a preliminary injunction to stop DC from enforcing the rules while its lawsuit goes through the motions.
Formally responding to that lawsuit in a new court filing earlier this week, DC’s lawyers are scathing about the touting platforms and their trade body.
The people of Washington DC, they write, “became fed up with soaring ticket prices”, caused in no small part by ticket touting, or ticket scalping to use the US term. Therefore, “through their elected representatives”, they enacted the Restricting Egregious Scalping Against Live Entertainment Act - or the RESALE Act for short.
The new filing notes how the Ticket Policy Forum, and its members, “lobbied against the act” from the start, but “failed to persuade a single council member”. And, as a result, “the DC Council voted unanimously to approve the act, which was then signed by the mayor”.
“Striking out with the democratic process”, they go on, the touting platforms “dressed their policy objections up in constitutional garb and turned to this court for a judicial veto” and “now seek a preliminary injunction preventing the District from enforcing the act”.
Such an injunction, DC says, would be “an extraordinary remedy”, meaning the touting platforms must demonstrate that “several factors” have been met. And yet they “fail to carry their burden on even one”.
The touting platforms argue that the RESALE Act breaches both the US Constitution and the Home Rule Act - which sets out how local government works within DC - by interfering in “inter-state commerce”, because it will impact on transactions taking place outside DC itself.
They also claim that the price cap violates ‘due process’ clauses within the Constitution and that the price disclosure obligations violate the First Amendment..
The DC response strongly disputes all those complaints. And also notes that ticket touting price caps already exist in some other US states, and yet “to the District’s knowledge” the touting platforms haven’t “challenged any other ticket resale law” through the courts.
To secure a preliminary injunction to stop the new DC rules from being enforced in the short term, the touting platforms need to show they are likely to succeed in their lawsuit, that a failure to act now would cause “irreparable harm” and that an injunction is in the public interest. DC’s lawyers insist that the Ticket Policy Forum and its members haven’t demonstrated any of those things.
We now await to see how the judge overseeing this case responds to attempts by the touting platforms to block the new DC touting rules, both in the short and longer term.
These are among a plethora of measures being considered and introduced around the world to better regulate the secondary ticketing market.
In the US most regulation currently sits at a state-level, though there are proposals to ramp up regulation at a US-wide federal level too. And some campaigners are calling for federal law-makers to also consider introducing a price cap.
Elsewhere in the world, a ticket touting price cap has also been proposed in Germany. The country's Justice And Consumer Protection Minister, Stefanie Hubig, is supporting the capping of ticket resale mark-ups at 20% of the original ticket price, or 20 euros, whichever is lower. And she says she would like to see that price cap come into force before next summer.
There have also been some interesting developments in Italy, which basically outlawed commercial for-profit ticket-touting back in 2017.
The regulator that enforces Italy’s touting laws, AGCOM, recently started securing web-blocking orders against Viagogo for breaking the rules and failing to pay the resulting fines. And it’s also opened a specific investigation into the touting of tickets to the shows Oasis will play in Rome next year.
Meanwhile, here in the UK, it’s almost a year since the government announced that it would introduce a new law banning for-profit ticket touting outright. Although, one year on, we’re yet to get any firm timeline for when that ban will actually be made law.
In a recent article in The Times focused on the touting of tickets for West End theatre shows, Adam Webb of anti-touting campaign group FanFair said that, “we’ve had encouraging soundbites from ministers”, but little detail and no “guarantee that these laws are ever going to be passed”.
In the meantime, he said, “the UK public continues to be exploited and ripped off by ticket touts operating in plain sight on unregulated uncapped resale platforms”.