FTC calls spec tickets deceptive violation of rules
Attorney Chris Castle has argued that selling ghost or speculative tickets “is like “charging consumers for something that doesn’t exist.” As part of resent junk fees rules. the U.S. FTC calls spec tickets deceptive, a violation of rules. and warns against the practice.
FTC calls spec tickets deceptive violation of rules
by Chris Castle from Music Tech Policy
The Federal Trade Commission’s (FTC) final “junk fees” rule focuses on price honesty in two sectors—live‑event tickets and short‑term lodging. It doesn’t directly outlaw speculative ticket listings. But the Commission says the quiet part out loud: if you tell people tickets are available when they’re not, you’ve likely crossed the line into deception under the rule’s misrepresentation provisions (§§ 464.2(c), 464.3). And we appreciate them quoting our comment in doing so. See ‘‘Rule on Unfair or Deceptive Fees’’ to be codified at 16 C.F.R. pt. 464; 90 Fed. Reg. 2066, 2105 & n.353 (Jan. 10, 2025) effective May 12, 2025.
Why that matters (even if it isn’t an outright per‑se ban)
Call it dicta if you like—it’s the agency’s explanation of how it reads the new junk fee rule, not a separate prohibition. But it’s useful dicta that points everyone to the same place we’ve been pointing for years that Heather VanDyke and I recently discussed on our “Trouble with Tickets” panel at the Texas Entertainment Law Institute: you don’t need a new statute to stop “spec” listings that pretend inventory exists. You need truth in representations. And when sellers claim they “have” tickets (or can deliver them at a stated price) when they don’t, that’s classic deception under the FTC Act. And, more to the point for private litigants, plain old Blackstone-style common‑law fraud. The FTC even illustrates the point in its business guidance: a speculative ticket seller that advertises tickets to a sold‑out concert it doesn’t actually have is misrepresenting availability.
A muted toot of the horn (very muted)
In footnote 353, the Commission quotes the comment I filed with Mala Sharma of Georgia Music Partners and Dr. David Lowery arguing that charging consumers for speculative tickets is like “charging consumers for something that doesn’t exist,” and suggesting the rule should prohibit taking payment for something the seller doesn’t own or that doesn’t even exist. The FTC’s response: the final rule doesn’t directly address speculative sales as a category, but a seller who represents tickets are available when they are not can violate §§ 464.2(c) and 464.3 of the new rule. That’s exactly the frame we urged. It’s nice to see the record squarely acknowledge the problem and the solution. (90 Fed. Reg. at 2105 and text accompanying n.353.)
Moreover, the Artist Rights Institute’s model ticketing reseller bill squarely addresses “speculative” listings by prohibiting the offer, advertisement, or sale of tickets the reseller does not possess or lacks a present, enforceable right to deliver. It treats “availability” as a material fact and makes misstatements per se deceptive. The bill bars preauthorization or charges for unowned inventory, requires conspicuous disclosures of broker status and seat/row accuracy, and voids contract terms that circumvent the ban. Enforcement runs through the attorney general and local prosecutors, with a private right of action, statutory damages, and fee shifting. Bottom line: no listing unless you have the ticket.
You don’t need a new law to plead this
If you’re a consumer (or an artist, venue, or promoter harmed by the practice), plain old fraud fits the fact pattern quite nicely. When a reseller represents availability now (or at a stated price), knows that’s not true (or is recklessly indifferent), intends the buyer to rely, the buyer does rely, and suffers damages (lost time, cover purchases at higher prices, fees, travel losses, etc.). The FTC’s rule reinforces—not replaces—those elements by underscoring that availability is a material fact and misstatements about the identity of what’s being sold (a real, deliverable ticket versus a wish) are deceptive. See our old friend Sir William Blackstone, Commentaries on the Laws of England, Book III, ch. 8–9 (esp. pp. 122–125 in many editions). That’s right up there with half-cows, etc.
Practical pleading angles the FTC just made easier
- Material misrepresentation: “Tickets available at X price” when the seller has no present ability to deliver those tickets at that price. (§ 464.3 highlights misrepresentations about the “identity of the good or service.”)
- Omissions that mislead: Failing to disclose that a listing is speculative (contingent on later acquisition) can render the “available now” claim deceptive. (§ 464.2(c) requires clear, conspicuous pre‑payment disclosures of material facts about charges.)
- Agency backdrop: The Commission’s guidance gives an example of a speculative seller claiming “tickets available” to a sold‑out show offers courts and enforcers a ready‑made illustration of why the claim is deceptive.
But isn’t that just “ticketing business as usual”?
If “business as usual” relies on pretending inventory exists in order to extract payment or lock in a higher fee, that’s not a feature—it’s a liability. The FTC’s rule’s preemption section also reminds everyone that state law protections remain unless they directly conflict; stronger state Unfair and Deceptive Acts or Practices or ticketing statutes that go beyond the FTC’s minimum floor still apply. Translation: you’ve got multiple paths to relief.
And yes, we’ll allow ourselves a small smile that the Commission quoted our comment in footnote 353—these filings take time, and the recognition matters because it signals artists’ and consumers’ experience is shaping the record. Is it worth taking the time to draft a comment for the record? You’re damn right it is.
