National Park Service: Favoritism

Showing posts with label Favoritism. Show all posts

Friday, January 28, 2011

Several Tour Operators Have Reported Operational Challenges at the Independence Visitor Center Due to Unfair, Random and Arbitrary Treatment

While this blog includes commentary regarding The Constitutional Walking Tour's operational challenges in Independence National Historical Park, a unit of the National Park Service, including at the Independence Visitor Center, The Constitutional is certainly not alone in its complaints of the unfair random and arbitrary treatment that it receives from the Independence Visitor Center Corporation ("IVCC") and National Park Service.

Other tour operators have remarked on the inequitable playing field that has been enabled by the actions of the Independence Visitor Center Corporation and National Park Service at Independence National Historical Park; these complaints have persisted at the Independence Visitor Center ("IVC") and date back to at least 2005.

On January 26, 2005, Scott Lewis, then General Manager of Ride the Ducks Philadelphia, wrote to Brian Abernathy, then Legislative Assistant to Philadelphia City Councilman Frank DiCicco, and to Fran Dougherty, then Assistant Managing Director of Philadelphia. Mr. Lewis emphasized problems that would arise by moving Ride the Ducks' operations to the Independence Visitor Center:

"We [Ride the Ducks] require a high pedestrian traffic area in order to run a successful operation [...] Placing all operators side by side would cause confusion and would be a disservice to Philadelphia visitors [...] We would have no ability to sell our own products or distribute our information at the [Independence] Visitor Center location [...] If the Visitor Center sells our tickets, we lose a substantial amount of revenue to commissions [...] The Visitor Center staff would not fairly represent our products."

By mentioning the importance of high-traffic areas and the ability to distinguish between tour operators, Mr. Lewis appeared to acknowledge the need for a tour company to have accessibility to customers and visibility for prospective customers to identify the tour attraction. Mr. Lewis expressed concerns about the possibility of the IVCC staff unfairly representing a tour and lost revenue resulting from a "partnership" with the IVC.

On June 28, 2010, Stephen Earnest, Vice President and General Counsel for Herschend Family Entertainment (which owns Ride the Ducks International (RTDI)), wrote to Dennis Reidenbach, Northeast Regional Director of the National Park Service (NPS). Mr. Earnest described as "arbitrary and capricious" (emphasis added) the NPS's decision not to extend three of the four Commercial Use Authorizations issued to Ride the Ducks by Independence Historical Park. Mr. Earnest also said, "NPS is discriminating against RTDI without any reasonable basis for doing so" (emphasis added).

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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).