H. R. 3248
IN THE HOUSE OF REPRESENTATIVES
June 13, 2019
Mr. Pascrell (for himself, Mr. Pallone, and Mr. Sires) introduced the following bill; which was referred to the Committee on Energy and Commerce
To direct the Federal Trade Commission to prescribe rules to protect consumers from unfair and deceptive acts and practices in connection with primary and secondary ticket sales, and for other purposes.
This Act may be cited as the
Better Oversight of Secondary Sales and Accountability in Concert Ticketing Act of 2019.
As used in this Act, the following definitions apply:
The term ancillary charges means all fees that must be paid in order to secure a ticket from a primary ticket seller or secondary ticket marketplace, including service fees, convenience charges, parking fees, taxes and other charges.
The term base price means the price charged for a ticket other than any ancillary charges.
The term box office means a physical location where tickets are offered for primary sale.
The term bundled series tickets means packages of tickets for multiple events that are part of the same entertainment series.
The term distribution method means the manner in which a primary ticket seller distributes tickets to a particular event, whether through primary sale, limited presale promotions, donations to charity, reservations of season ticket holders, or allocated to the primary ticket seller, team, artist, or venue.
The term primary sale, with regards to a ticket, means the initial sale of a ticket that has not been sold previous to such sale, by a primary ticket seller to the general public on or after the advertised date of such sale.
The term primary ticket seller means an owner or operator of a venue or a sports team, a manager or provider of an event, or a provider of ticketing services (or an agent of such owner, operator, manager, or provider) that engages in the primary sale of tickets for an event or retains the authority to otherwise distribute tickets.
The term purchaser means any person who purchases a ticket from a primary ticket seller or a secondary ticket sales marketplace.
The terms resale or secondary sale, with regards to a ticket, mean any sale of a ticket that occurs after the primary sale of the ticket.
The term secondary ticket sales marketplace means a business, including a website, software application for a mobile device, any other digital platform, or portion thereof, of a physical seller whose primary purpose is to facilitate the resale of tickets to purchasers.
The term ticket means a ticket of admission to a sporting event, theater, musical performance, or place of public amusement of any kind, including bundled series tickets.
Rules on transparency of ticket marketing, distribution, and pricing by primary ticket sellers
Not later than 180 days after the date of enactment of this Act, the Federal Trade Commission shall promulgate rules in accordance with section 553 of title 5, United States Code, that include the following requirements and prohibitions with regard to the primary sale, distribution, and pricing of tickets:
A requirement that a primary ticket seller disclose and display on the website and at the box office of such primary ticket seller the total number of tickets offered for sale to the general public by such primary ticket seller not less than 7 days before the date on which tickets shall be available for primary sale.
A requirement that the primary ticket seller clearly and conspicuously disclose all ancillary charges to purchasers at the beginning of a transaction before a ticket is selected for purchase. A primary ticket seller shall display the total cost of the ticket including all ancillary charges in all price quotes and advertisements. The price of the ticket may not change during the purchase process.
A requirement that a primary ticket seller include the total cost of a ticket in including all ancillary charges in any refund of a ticket that is provided for in the primary ticket seller’s refund policies.
A prohibition on restricting the ability of a purchaser who has purchased tickets from a primary ticket seller to resell any such tickets.
A prohibition on requiring a minimum price for the resale of any tickets purchased from a primary ticket seller.
A requirement that the primary ticket seller shall disclose any guarantee or refund policy before the completion of the sale of a ticket.
Rules for secondary ticket sales marketplaces
Not later than 180 days after the date of enactment of this Act, the Federal Trade Commission shall promulgate rules in accordance with section 553 of title 5, United States Code, that include the following requirements and prohibitions with regard to the secondary sale, distribution, and pricing of tickets:
A requirement that if the secondary ticket sales marketplace does not possess the ticket at the time of the sale that such secondary ticket sales marketplace provide—
a clear and conspicuous statement that the secondary ticket sales marketplace does not possess the ticket; and
an explanation of how to obtain a refund from the secondary ticket sales marketplace if the purchaser receives a ticket that does not match the description of the ticket by the secondary ticket sales marketplace.
A requirement that a secondary ticket sales marketplace disclose to a purchaser when the secondary ticket sales marketplace is also the primary ticket seller, venue, team, or artist associated with the event.
A requirement that a secondary ticket sales marketplace disclose all ancillary charges to purchasers at the beginning of a transaction before a ticket is selected for purchase. A secondary ticket sales marketplace shall display the total cost of the ticket including all ancillary charges in all price quotes and advertisements. The price of the ticket may not change in the selection or during the purchase process.
A requirement that a secondary ticket sales marketplace disclose upon offering a ticket for resale—
the distribution method and the total cost of each ticket including all ancillary charges;
the precise location of the seat or space to which the ticket would entitle the bearer, or, if information about the precise location of the seat or space is not available, descriptive information about the location of the seat or space, such as a description of a section or other area within the venue where the seat or space is located; and
if the secondary ticket sales marketplace purchased the ticket during a public sale of tickets to the event, the date and time of the purchase of the ticket by the secondary ticket sales marketplace.
A requirement that, if a secondary ticket sales marketplace guarantees delivery of tickets to a purchaser and fails to deliver such tickets, the secondary ticket sales marketplace shall provide a full refund for the total cost of the ticket, including all ancillary charges, barring non-delivery due to causes beyond reasonable control of the seller including a natural disaster, civil disturbance, or otherwise unforeseeable impediment.
A requirement that the secondary ticket sales marketplace disclose to a person purchasing a ticket any delivery guarantee policy described in paragraph (5) before completion of the sale of the ticket.
A requirement that a secondary ticket sales marketplace—
not make any representation of affiliation or endorsement with a venue, team, or artist, as the case may be, without the express written consent of the venue, team, or artist, as applicable, except when it constitutes fair use and is consistent with applicable laws; and
in the case of an online secondary ticket sales marketplace, post a clear and conspicuous notice that the website or mobile application is engaged in the secondary sale of tickets and require purchasers to confirm having read such notice before registering for an account with the secondary ticket sales marketplace or starting a transaction.
A prohibition on the secondary sale of a ticket by an individual employee of any venue, primary ticket seller, team, artist, online resale marketplace, or box office that is involved in hosting, promoting, performing in, or selling tickets if such secondary sale—
is for a higher price than the primary sale of the ticket; or
is made to any third party and the employee has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that the third party intends to sell the ticket for a higher price than total cost of the ticket, including all ancillary charges.
A prohibition on the secondary sale of a ticket for the same seat to more than one person at the same time.
A requirement that no purchaser shall be sanctioned or denied admission to an event on the basis that such purchaser resold a ticket, gifted, or purchased a resold ticket.
Federal trade commission
A violation of a rule prescribed pursuant to section 3 or 4 shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). The Federal Trade Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made a part of this Act.
State attorneys general
Except as provided in paragraph (6), in any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected by the engagement of any person in a practice that violates a rule prescribed under section 3 or 4, the State, as parens patriae, may bring a civil action on behalf of the residents of the State in an appropriate district court of the United States or other court of competent jurisdiction to—
enjoin that practice;
enforce compliance with the rule;
obtain damages, restitution, or other compensation on behalf of residents of the State; and
obtain such other relief as the court may consider to be appropriate.
The State shall serve written notice to the Commission of any civil action under paragraph (1) at least 60 days prior to initiating such civil action. The notice shall include a copy of the complaint to be filed to initiate such civil action, except that if it is not feasible for the State to provide such prior notice, the State shall provide notice immediately upon instituting such civil action.
Intervention by FTC
Upon receiving the notice required by paragraph (2), the Commission may intervene in such civil action and upon intervening—
be heard on all matters arising in such civil action;
remove the action to the appropriate United States district court; and
file petitions for appeal of a decision in such civil action.
Nothing in this subsection shall prevent the attorney general of a State from exercising the powers conferred on the attorney general by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary and other evidence. Nothing in this section shall prohibit the attorney general of a State, or other authorized State officer, from proceeding in State or Federal court on the basis of an alleged violation of any civil or criminal statute of that State.
Venue; service of process; joinder
In a civil action brought under paragraph (1)—
the venue shall be a judicial district in which the defendant or a related party is found, is an inhabitant, or transacts business, or wherever venue is proper under section 1391 of title 28, United States Code;
process may be served without regard to the territorial limits of the district or of the State in which the civil action is instituted; and
a person who participated with a defendant or related party in an alleged violation that is being litigated in the civil action may be joined in the civil action without regard to the residence of the person.
Preemptive action by FTC
Whenever a civil action or an administrative action has been instituted by or on behalf of the Commission for violation of any rule described under paragraph (1), no State may, during the pendency of such action instituted by or on behalf of the Commission, institute a civil action under paragraph (1) against any defendant named in the complaint in such action for violation of any rule as alleged in such complaint.
Award of costs and fees
If a State prevails in any civil action under paragraph (1), the State can recover reasonable costs and attorney fees from the lender or related party.
Private right of action
Any person who suffers injury as a result of another person’s violation of a rule prescribed pursuant to section 3 or 4, may bring a civil action against such person in a United States district court and may recover from such person damages for such injury plus $1,000 for each requirement or prohibited act set forth in such sections that such person violated with respect to a ticket sold to the person bringing such action, and reasonable attorneys’ fees and costs.
Nothing in this Act shall affect the authority of any State or local government to establish or continue in effect a provision of law of the State or local government relating to the regulation of the resale of tickets to events or the pricing of such tickets for resale, except to the extent that such provision is inconsistent with this Act or a regulation promulgated under this Act, and then only to the extent of the inconsistency. A provision of law of a State or local government is not inconsistent with this Act or a regulation promulgated under this Act if such provision provides equal or greater protection to purchasers than the protection provided under this Act or such regulation.
FTC study of ticket market
The Federal Trade Commission shall conduct a study of the ticket market to determine the effect of the Commissions’s enforcement actions of the BOTS Act (Public Law 114–274) since it was enacted on December 14, 2016. The Commission shall transmit a report to Congress that details all enforcement actions taken since the enactment of the BOTS Act (Public Law 114–274) and assesses the use of fraudulent identities to circumvent security measures of a ticket selling website in violation of such Act.