The Ticketmaster/Live Nation merger: Where do things go from here?

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For all of the bluster about the Ticketmaster/Live Nation merger from congressmen and senators this week, it’s worth noting that neither the House nor the Senate can actually do anything to stop the corporations from combining.

The most significant roadblock in their path: the U.S. Department of Justice Antitrust Division.

“All I can say is that the DOJ’s antitrust division is investigating the proposed transaction, and that we’re going to vigorously enforce the merger antitrust laws and conduct a thorough investigation,” says Gina Talamona, Deputy Director of Public Affairs.

Talamona has limited her comments to the Sun-Times and every other news organization to the statement above. But sources familiar with antitrust investigations say she couldn’t answer the key question–how long will this take?–even if she wanted to.

The antitrust division is notified of hundreds if not thousands of proposed mergers a year. It only investigates a fraction of these, and even fewer become the subject of legal action. (There’s a list of those that have gone to court on the division’s Website.)

Of the mergers that are investigated, each is evaluated on a case-by-case basis with one eye toward how it will affect competition in the given industry and the other on how consumers will be affected by it.

There are two types of investigations.

The first is conducted under the requirements of the Hart-Scott-Rodino Act, which kicks in when a company of a certain size acquires a certain amount of stock in another company. (When this is the case, the companies also must file with the Federal Trade Commission.) The act does have a specific timetable for when the federal government must take different actions, but the clock starts and stops depending on the requests that investigators make for more information. If such requests are forthcoming, the companies can take a day, a week, a month or a year to respond. When they do, the clock starts again… until it stops again.

The other type of investigation is not governed by the Hart-Scott-Rodino Act, and it has no prescribed timetable. Again, companies play a role in how long the process takes by how quick they are in responding to requests for information. And the government moves… well, as quickly or slowly as the government feels like.

Since a filing under the Hart-Scott-Rodino Act is confidential, there is no way of knowing if the act affects Ticketmaster and Live Nation or not. But there really would be no way of knowing how long it will take the DOJ to weigh in on the merger anyway.

In the mid-’90s, the Justice Department spent a year investigating Ticketmaster, only to conclude that the company was not violating antitrust laws. Ticketmaster operated with business as usual throughout the investigation. And it’s been going strong ever since.

If this investigation ends differently, and the DOJ decides to take action, it will most likely be done under the Sherman Antitrust Act, America’s most famous piece of monopoly-busting legislation.

Passed in 1890 and named after its author, a Republican senator from Ohio, it was signed into law by President Benjamin Harrison but used most extensively by President Theodore Roosevelt. Its key language: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal… Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony.”

Students of history have just got to wonder: What would Teddy Roosevelt have thought of Ticketmaster/Live Nation?

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