National Park Service: The Constitutional Walking Tour Terminated at the Independence Visitor Center ("IVC"); IVC CEO Refused to "Diginfy" The Constitutional's Operational Concerns and Deemed Such Concerns "Nonsense"

Wednesday, April 13, 2011

The Constitutional Walking Tour Terminated at the Independence Visitor Center ("IVC"); IVC CEO Refused to "Diginfy" The Constitutional's Operational Concerns and Deemed Such Concerns "Nonsense"

April is the official start of The Constitutional Walking Tour's public tour operations for 2011, and The Constitutional Walking Tour will not be operating from the Independence Visitor Center. In fact, due to threatening comments posed by the Independence Visitor Center Corporation ("IVCC") and a prolonged and inflexible refusal by the Independence Visitor Center Corporation and National Park Service ("NPS") to compromise, to act in good faith and to not act in a random and arbitrary manner, The Constitutional Walking Tour no longer has any business relations with the Independence Visitor Center Corporation.

Issues negatively affecting the working relationship between The Constitutional, the IVCC and the National Park Service arose more than five years ago. Since the Spring of 2006, The Constitutional has made repeated efforts to facilitate an agreement and resolution amenable to all parties. The IVCC and NPS have repeatedly rebuffed The Constitutional's attempts. In July 2009, following an established pattern of improper treatment by NPS and the IVCC, The Constitutional filed litigation as a last resort. Even after the litigation was filed, The Constitutional used good faith efforts to negotiate a settlement for past damages and for a means of operating at the Independence Visitor Center ("IVC") in a fair and equal way going forward.

One such effort by The Constitutional to amicably resolve operational issues at the IVC occurred on July 8, 2010, when The Constitutional reached out via email to Jim Cuorato, President and CEO of the IVCC. Due to the lack of visibility and accessibility imposed by random and arbitrary treatment by the IVCC and NPS, The Constitutional had experienced poor sales over the July 4th holiday weekend, and these disappointing figures were caused by the actions of the IVCC and NPS. In light of these operational challenges, The Constitutional contacted Mr. Cuorato seeking a way to avoid such issues in the future.

Instead of seriously regarding The Constitutional's concerns and engaging in a dialogue that would lead to better results for all involved parties, Mr. Cuorato tersely and dismissively replied to The Constitutional on July 9, 2010. Mr. Cuorato dismissively refused to "dignify" The Constitutional's feedback with a "specific response" since Mr. Cuorato deemed it "un-partner-like behavior" and "nonsense." Mr. Cuorato wrote, "I find it interesting, but not surprising, that you chose to write this nonsense. I will not dignify your letter below with a specific response." Mr. Cuorato concluded with a thinly veiled threat:

"Your antics have stretched my patience. So if you are not happy with either ticket sales or promotional events that we undertake in our building, I would be happy to stop selling your tickets and end our relationship (and am seriously considering doing so in any event)."

The prolonged and unchecked actions of the IVCC and the NPS have now caused The Constitutional Walking Tour to stop doing business once and for all at the IVC as of November 30, 2010. With The Constitutional no longer operating at the IVC, it appears that Mr. Cuorato's plan has reached fruition. In light of the continued refusal of the IVCC and NPS to seriously and meaningfully discuss ways in which to address The Constitutional's concerns, The Constitutional is pressing forward with the lawsuit against the Independence Visitor Center Corporation and National Park Service. The Constitutional Walking Tour is seeking compensatory and punitive damages, including for lost profits, damaged reputation, loss of goodwill, legal fees and costs, whereby The Constitutional may realize some of the value that it could have realized in the creation, operation and potential sale of its business, but for the egregious actions of the IVCC and NPS.

Background on The Constitutional’s disputes with the NPS and Independence Visitor Center

The Constitutional Walking Tour of Philadelphia (“The Constitutional”) offers guided walking tours of the Independence National Historical Park area by providing a primary overview of Independence Park and visiting more than 20 of Independence Park’s most historic sites including the Liberty Bell, Independence Hall, Carpenters’ Hall, Declaration House, etc.

From 2005 to 2010, the Independence Visitor Center Corporation sold tickets for The Constitutional’s various tours only at the IVC’s main information and sales desk. The IVCC has received a 20.0% (twenty percent) sales commission on each ticket that it has sold for The Constitutional (ranging on average in gross price from $12.50 to $17.50). Since 2005, The Constitutional has requested to also license a dedicated ticket sales booth from the National Park Service and IVCC on fair, reasonable and non-discriminatory terms commensurate with Ride the Ducks and Philadelphia Trolley Works, for example. Additionally, since 2005, The Constitutional has requested to also license marketing opportunities and commercial use authorizations from the National Park Service and IVCC on fair, reasonable and non-discriminatory terms.

The Independence Visitor Center (“IVC”) is owned and operated by the United States of America - National Park Service (“NPS”), which then sub-contracts with the Independence Visitor Center Corporation (“IVCC”), a taxpayer supported public charity, to manage the IVC.

The IVCC and NPS have preferenced third parties including Ride the Ducks and Philadelphia Trolley Works, and the IVCC and NPS have discriminated against The Constitutional Walking Tour. The National Park Service has enabled the creation of this unfair business environment. The National Park Service and the IVCC have ignored and circumvented Federal management and concessions laws for the sale of goods and services at Independence National Historical Park that require open, transparent, competitive and appealable processes awarding concessions contracts for the sale of goods and services including tours.

To facilitate the administration of the National Park Service System, the Secretary of the Department of the Interior, acting through the NPS, is authorized under the National Park Service Organic Act (“Organic Act”) to carry out twelve categories of activities, none of which include transferring administrative responsibility to a private party [i.e., IVCC] or engaging in cooperative administration with a private party [i.e., IVCC]. 16 U.S.C. § 1a-2(a)–(l). Rather than grant the NPS discretion in its dealings with park concessioners, Congress established “carefully controlled safeguards against unregulated and indiscriminate use” of the parks in the National Parks Omnibus Management Act of 1998 (“Management Act”), which governs all national park public accommodations, facilities, and services. 16 U.S.C. § 5951 et seq.; see also 36 C.F.R. Part 51.2 (“policy underlying concessions contracts”). The safeguards are not limited to nationwide policy: Congress also manages the parks with significant visitor traffic on a park-by-park basis. See, e.g., 16 U.S.C. §§ 21–40c (Yellowstone), §§ 91–110d (Mount Rainier), §§ 212–218a (Abraham Lincoln’s Birthplace), and §§ 410z–410z-5 (Boston National). One of the dozens of national parks managed by specific statutes is Independence National Historical Park (“INHP”). 16 U.S.C. §407m–407s. As such, compliance here going forward would require the NPS, first, to reassume from the private IVCC the NPS’s duties “to administer, operate, manage, lease, and maintain” properties at INHP pursuant to 16 U.S.C. § 407s; second, to award “all proposed concessions contracts … through a competitive selection process” pursuant to 16 U.S.C. § 5952; and, third, to issue commercial use authorizations in a rational manner pursuant to a reasonable interpretation of 16 U.S.C. § 5966(c).

The IVCC and NPS have arbitrarily and randomly selected business partners in a non-competitive and clandestine manner; as such, the actions of the NPS and IVCC have from an economics perspective stifled competition, innovation and consumer choice. Ultimately the IVCC’s actions have enabled prices to increase for its preferred vendors to strengthen the for-profits’ financial performance. Visitors to Philadelphia will be better served when the IVCC’s management, manners and methods are fundamentally changed. This would include having the National Park Service abide by Federal concessions management laws. Specifically, this will entail only having the NPS award concessions sales contracts and not having the IVCC involved in any of the selecting, awarding, contracting and managing of Independence Park’s third party concessions, including inside the Independence Visitor Center. This is the model that is practiced in virtually every other of the 390 (three hundred ninety) National Park Service units across the United States (in 49 states) including at Yosemite, Yellowstone, Statue of Liberty, etc. Additionally, visitors and all stakeholders will be better served once the operation of the taxpayer funded IVCC is totally transparent and accountable. While part of the issue centers on a publicly funded charity competing against the private sector (i.e., by offering guided tours and services), it more so has to do with the manner in which the IVCC and NPS operate and discriminate against third party concessionaires, tour operators and vendors in a random and arbitrary fashion (i.e., with the licensing and leasing ticket sales kiosks by the IVCC to third party companies, for example).