BILL ANALYSIS Ó
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|Hearing Date:July 1, 2013 |Bill No:AB |
| |329 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Ted W. Lieu, Chair
Bill No: AB 329Author:Pan
As Amended: May 7, 2013 Fiscal: Yes
SUBJECT: Ticket sellers: equitable online ticket buying process:
sale or use of circumventing software.
SUMMARY: Makes it a misdemeanor to intentionally use or sell software
to circumvent a security measure, access control system or other
control or measure on a ticket seller's Web site that is used to
ensure an equitable ticket buying process.
Existing law:
1) Requires a ticket seller to have a permanent business address from
which tickets may only be sold and requires that address to be
included in any advertisement or solicitation, and requires a
ticket seller to be licensed, as may be required by any local
jurisdiction. Provides that a violation of this requirement shall
constitute a misdemeanor punishable by imprisonment in a county
jail not exceeding six months, or by fine not exceeding $2,500, or
by both. Provides that any person who engages, has engaged, or
proposes to engage in a violation of this section shall be liable
for a civil penalty not to exceed $2,500 for each violation, which
may be assessed and recovered in a civil action brought in the name
of the people of the State of California by the Attorney General,
or a district attorney, or a city attorney of a city having a
population in excess of 750,000, and, with the consent of the
district attorney, by a city prosecutor in any city, county, or
city and county having a full-time prosecutor in any court of
competent jurisdiction. States that each ticket sold or offered
for sale in violation of constitutes a separate violation.
(Business and Professions Code (BPC) § 22500)
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2) Requires a ticket seller shall maintain records of ticket sales,
deposits, and refunds.
(BPC § 22501)
3) Requires a ticket seller shall, prior to sale, disclose to the
purchaser by means of description or a map the location of the seat
or seats represented by the ticket or tickets. (BPC § 22502)
4) Provides that it is unlawful for a ticket seller to contract for
the sale of tickets or accept consideration for payment in full or
for a deposit for the sale of tickets unless the ticket seller
meets one or more of the following requirements: (BPC § 22502.1)
a) The ticket seller has the ticket in his or her possession.
b) The ticket seller has a written contract to obtain the
offered ticket at a certain price from a person in possession of
the ticket or from a person who has a contractual right to
obtain the ticket from the primary contractor.
c) The ticket seller informs the purchaser orally at the time
of the contract or receipt of consideration, whichever is
earlier, and in writing within two business days, that the
seller does not have possession of the tickets, has no contract
to obtain the offered ticket at a certain price from a person in
possession of the ticket or from a person who has a contractual
right to obtain the ticket from the primary contractor, and may
not be able to supply the ticket at the contracted price or
range of prices.
d) Provides that nothing in the above requirements shall
prohibit a ticket seller from accepting a deposit from a
prospective purchaser as part of an agreement that the ticket
seller will make best efforts to obtain a ticket at a specified
price or price range and within a specified time, provided that
the ticket seller informs the purchaser orally at the time of
the contract or receipt of consideration, whichever is earlier,
and in writing within two days, of the terms of the deposit
agreement, and includes in the oral and written notice the
disclosures otherwise required by this section.
1) Provides that it is unlawful for a ticket seller to represent that
he or she can deliver or cause to be delivered a ticket at a
specific price or within a specific price range and to fail to
deliver within a reasonable time or by a contracted time the
tickets at or below the price stated or within the range of prices
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stated. (BPC § 22502.2)
2) Provides that in addition to other remedies, a ticket seller who
violates BPC §22502.1 or BPC §22502.2 above and fails to supply a
ticket at or below a contracted price or within a contracted price
range shall be civilly liable to the ticket purchaser for two times
the contracted price of the ticket, in addition to any sum expended
by the purchaser in nonrefundable expenses for attending or
attempting to attend the event in good faith reliance on seat or
space availability, and reasonable attorney's fees and court costs.
(BPC § 22502)
3) Defines "ticket seller" as any person who for compensation,
commission, or otherwise sells admission tickets to sporting,
musical, theatre, or any other entertainment event.
(BPC § 22503)
4) Defines "Primary contractor" as the person or organization who is
responsible for the event for which tickets are being sold.
Provides that the requirements for ticket sellers do not apply to
any primary contractor or seller of tickets for the primary
contractor operating under a written contract with the primary
contractor. (BPC § 22503.5)
5) Provides that the requirements for ticket sellers do not apply to
officially appointed agent of an air carrier, ocean carrier or
motor coach carrier who purchases or sells tickets in conjunction
with a tour package accomplished through the primary event promoter
or his or her agent by written agreement. (BPC § 22503.6)
6) Provides that the requirements for ticket sellers do not apply to
any person who sells six tickets or less to any one single event,
provided the tickets are sold off the premises where the event is
to take place, including, but not limited to, designated parking
areas and points of entry to the event. (BPC § 22504)
7) States that a violation of any provision governing the above
requirements for ticket sellers constitutes a misdemeanor. (BPC §
22505)
8) Provides that any partial or full deposit received by a ticket
seller on a future event for which tickets are not available shall
be refundable except for a service charge of not more than 10
percent until tickets for the event are actually available. (BPC §
22506)
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9) Provides that the ticket price of any event which is canceled,
postponed, or rescheduled shall be fully refunded to the purchaser
by the ticket seller upon request. Provides that any local
jurisdiction may require a ticket seller to provide a bond of not
more than $50,000 to provide for any refunds that may be required
by this section. (BPC § 22507)
10)Requires a ticket seller to disclose that a service charge is
imposed by the ticket seller and is added to the actual ticket
price by the seller in any advertisement or promotion for any event
by the ticket seller. (BPC § 22508)
11)Requires any ticket seller who includes tickets to an event in
conjunction with the sale of a tour or event package, including,
among other things, transportation, meals, lodging, or beverages,
shall disclose in any advertisements or promotional materials the
price charged or allotted for the tickets. (BPC § 22509)
12)States that the requirements for ticket sellers above do not apply
to any nonprofit charitable tax-exempt organization selling tickets
to an event sponsored by the organization.
(BPC § 22503.5)
This bill:
1) Provides that in addition to requirements for ticket sellers under
current law, a person who intentionally uses or sells software to
circumvent a security measure, access control system or other
control or measure on a ticket seller's Web site that is used to
ensure an equitable ticket buying process is guilty of a
misdemeanor.
FISCAL EFFECT: According to the Assembly Committee on Appropriations
analysis dated May 15, 2013, this bill will result in potential minor
non-reimbursable costs to cities and counties for enforcement, offset
to some extent by fine revenues.
COMMENTS:
1. Purpose. The Author is the Sponsor of this bill. According to the
Author, this bill is designed to protect the rights of consumers by
stopping robotic ticket-buying software programs that jump ahead of
the line and create instant sellouts of entertainment events before
the average consumer has a chance. The Author states that these
tickets are then resold at extremely high costs, thus forcing a fan
to spend more money to attend the event without having had the
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chance to get a face value ticket. According to the Author, AB 329
will create consumer protections for people trying to buy tickets
by stopping "bots," machines designed by resellers to buy up all of
the tickets before the general public.
2. "Bots" and Attempts to Curb Their Use. "Bots" are robotic ticket
buying software programs that allow users to quickly buy tickets
online. Typically, these are used by unscrupulous actors like
ticket scalpers to buy tickets, then turn around and sell the same
tickets at increasingly higher prices. Over the past several
years, numerous high profile concert ticket sales have been
impacted by the presumed use of "bots" in that individuals wait
online to purchase tickets while software programs allow their
users to jump to the front of the line and purchase large numbers
of tickets at one time. According to the Author, this scenario
often leads to concerts and other high profile events selling out
in a matter of minutes, leaving fans ticketless and forcing them to
spend more money to attend an event.
According to information provided by the Author, the ticket
industry has attempted to combat problems caused by "bots" by
employing other technological means, such as "Completely Automated
Public Turing tests to tell Computers and Humans Apart" (CAPTCHA),
which include phrases and picture tests at the point of sale during
the online transaction to differentiate between a human purchaser
and a likely computer program. CAPTCHA tests, such as typing
characters into a box, are designed to prevent the use of "bots"
because the requested task is typically one that can be completed
by a person but would be difficult for a robotic software program
to accurately perform.
Supporters of efforts to restrict the use of "bots" assert that
even these technological efforts are not completely successful
because the problem of instant sellouts and increased resale prices
for tickets continues to generate complaints from the ticket-buying
public. California joins a number of states including Tennessee,
Michigan, New Jersey, New York, Connecticut and Minnesota who have
waded into the debate and considered or passed legislation imposing
bans on "bots" and establishing stiff penalties to those who use
these systems.
3. Prior Related Legislation. AB 2612 (Plescia, 2008) was a spot bill
to amend the ticket seller's provisions of the Business and
Professions Code. ( Status: The bill was held in the Assembly
Committee on Rules without referral.)
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SB 1022 (Campbell, 2006) would have included Licensed Ticket
Sellers, and other businesses, eligible to organize as Limited
Liability Corporations (LLC). ( Status: The bill was not ever
heard in a Senate policy committee.)
SB 1602 (Battin, 2006) would have expanded the definition of
scalping under the Penal Code, to extend the prohibition against
selling event tickets purchased for resale above market value on
the event premises, to any purchase of tickets for resale in an
amount over the limitation on the maximum number of tickets allowed
by the original ticket seller and for any amount of profit. The
bill also would have criminalized the use of automated computer
purchases of event tickets in order to accomplish the purchase
above the seller's limit, by defining the practice as "criminal
interference" with the seller's Web site. ( Status: The bill was
not heard on the Senate Floor at the request of the Author.)
4. Arguments in Support. eBay, Inc. and StubHub write in support of
AB 329, noting that "protecting fan's ability to access tickets to
their favorite events in a safe, reliable and consumer friendly
environment that protects against fraud and abuse is of significant
importance to ensuring a positive overall experience". They add
that "passage of AB 329 furthers this goal by addressing the
well-established black market of unregulated scalpers by
prohibiting the use of robotic ticket-buying software, or "bots",
and that this bill would eliminate this abusive practice." eBay
and StubHub call this bill an important step forward to achieving
and protecting consumer choice.
SUPPORT AND OPPOSITION:
Support:
eBay, Inc.
StubHub
Two individuals
Opposition:
None on file as of June 25, 2013.
Consultant: Sarah Mason
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