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

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).

Mr. Earnest's comments may help to establish a broader scale to the belief amongst some tour vendors that the National Park Service has engaged in random and arbitrary actions detrimental to tourism businesses. Tour vendors have also charged the Independence Visitor Center Corporation with such deleterious activities.

On July 10, 2006, Samuel Kuttab, speaking on behalf of the now defunct Super Ducks tour company which was "acquired" by Ride the Ducks, wrote a letter to officials at the IVCC and with the City of Philadelphia, including Bill Moore, the President of the IVCC at that time. Mr. Kuttab cited numerous examples of the National Park Service and IVCC fostering an unfair business environment whereby it appears that competitors engaged in what appeared to be anti-competitive activities that harmed Super Ducks. Some of Mr. Kuttab's key points:

"Recent events raise concern that Ride the Ducks is being given carte blanch in doing as they please"
"When Super Ducks customers enter the [Independence] Visitor Center with our brochures in hand to purchase tickets [for Super Ducks] they are constantly directed to Ride the Ducks booth resulting in a no sale for our [Super Ducks'] would be customers"
"No directional sign at the [Independence] Visitor Center informing customers of where to purchase tickets for Super Ducks leading to confusion and misrepresentation."

"At this point we believe that steps are in play by a number of parties including our competitors in encouraging, facilitating, and ensuring that Super Ducks will be intimidated to cease their operations at the [Independence] Visitors [sic] Center." Mr. Kuttab's email was addressed to parties from the Independence Visitor Center Corporation and National Park Service. Therefore, he may have been referring to them when he wrote "a number of parties."

"Enough is enough and being a large company does not give anyone the right to bully smaller companies."
"In the end customers make the choice and the neutral parties should ensure that customers have the free choice to make that decision [...] This is only one instance in many that have become the norm. Ultimately we are neither a threat nor serious competition to Ride the Ducks and for every 100 tickets they sell we sell 20, unfortunately they view the 20 tickets as rightfully theirs and will take any and all steps to deny us the 20 tickets."

On August 1, 2009, Tom Rosenberg, the owner of the now defunct Ye Olde History Tours, wrote to the Board of Directors at the Independence Visitor Center Corporation (which is chaired by John Estey). Mr. Rosenberg described a "rise in frustration among the vendor community" at the IVC. Some of the key points Mr. Rosenberg made included:

"Indeed, the IVC makes money when their vendors turn a profit. However, this trend has been slowed of late, due in large part to the IVC imposing policy which is both fleeting and counter-productive."

"The mere fact that display booths at this date remain unoccupied is evidence of the casual manner in which the IVC is conducting business." It appears that Mr. Rosenberg is referring to the ticket sales booths similar to the ticket sales booths used by Philadelphia Trolley Works and Ride the Ducks.

"Concerns from the tourism industry have not been collected, and therefore remained unaddressed"

"The 'cost/benefit' relationship vendors have with the IVC has become lopsided, leaving vendors to question the logic behind our partnership"

Mr. Rosenberg wrote to the IVCC's Board of Directors for a second time on August 31, 2009. This subsequent letter includes further critical commentary on operations of the IVC:

Mr. Rosenberg described the IVC as having, "A generally unreliable and ineffectual relationship with its vendor community."

Mr. Rosenberg also cites issues with "favoritism," "preferential treatment," staffing, unreliable technology, "communication," and "leadership" at the Independence Visitor Center. For example, Mr. Rosenberg wrote, "Favoritism: Walking tour companies are permitted to staff their staging areas ten (10) minutes prior to departing, however of particular note, the Franklin [sic] Footsteps walking tour: a) exceeds the 10 minute limit; and b) actively solicits customers adjacent their [Philadelphia Trolley Works'] sales booth... these are violations of the IVC policy and when management was informed of these infractions, no action was taken." Additionally, Mr. Rosenberg wrote that "signage" for walking tours has been "significantly restricted" and that walking tours are relegated to a "low visibility staging area".

Still another company has voiced dissatisfaction with practices at the Independence Visitor Center: Philadelphia Trolley Works. On August 27, 2007, Michael Kates, Vice President of Operations for Philadelphia Trolley Works and Big Bus Company, wrote an email to Darla Sidles, then Acting Superintendent of Independence National Historical Park, National Park Service. Mr. Kates wrote, "I am very dissatisfied with the current situation." He described practices in place at the IVC as "unfair" and "bad business."

In his email, Mr. Kates proposed potential actions to be taken with regards to walking tours. Amongst the measures he listed was this: "Position the walking tours in the Northend [sic] of the building."

Neither Super Ducks nor Ye Olde History Tours currently operate tours in Philadelphia. However, Philadelphia Trolley Works still operates in Philadelphia, and Philadelphia Trolley Works has a significant marketing & sales presence inside and outside of the Independence Visitor Center. Furthermore, it appears as though Mr. Kates's suggestion to the NPS and IVCC was ultimately enacted, as some walking tours, such as The Constitutional walking Tour, have been exiled to the North end of the IVC building, while other tour operators, such as Philadelphia Trolley Works, are given prime locations (see video and post), inside and ouside the IVC. Mr. Kates requested that walking tours, specifically The Constitutional, be relocated to the North End of the Independence Visitor Center. The IVCC since implemented just such a policy: now, walking tours must stage tours in the North end, and these tours can only depart from the North end. Nonetheless, Franklin's Footsteps -- the walking tour started by Philadelphia Trolley Works -- currently announces on the Web site of the Independence Visitor Center, "Join us as at the Sightseeing Kiosk located inside The Independence Visitor Center." Language informing guests that "Tours depart from the Sightseeing Tour Kiosk at the Independence Visitor Center," rather than at the North end from where other walking tours must depart, also appears in the Franklin's Footsteps brochure and on the Philadelphia Trolley Works web site.

In spite of complaints by Ride the Ducks and Philadelphia Trolley Works, the IVCC and NPS have preferenced these third parties, 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 has ignored federal concessions laws for the sale of goods and services at Independence National Historical Park that require open, transparent, competitive and appealable processes for awarding concessions contracts for the sale of goods and services including tours.
How can this environment persist for years at the IVC? How can multiple parties see their calls for change fall on deaf ears while the wishes of larger corporations are realized? How can large corporations then openly break the rules that it requested while the NPS and IVCC promotes these unjust practices?

Concessionaires at the Independence Visitor Center should be treated fairly. Regardless of whether the company operates large vehicles throughout the City's streets or eco-friendly walking tours in a National Park, companies at the IVC deserve fair treatment.

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The Constitutional Walking Tour obtained the cited documents herein and the exhibits below as responsive public records through requests filed under the Pennsylvania Right to Know Law and Freedom of Information Act.

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Exhibits

*Email from Scott Lewis, General Manager of Ride the Ducks Philadelphia, to Brian Abernathy, Legislative Assistant to Councilman DiCicco, January 26, 2005.

*Letter from Stephen Earnest, Vice President and General Counsel for Herschend Family Entertainment, to Dennis Reidenbach, Northeast Regional Director of the National Park Service, June 28, 2010.

*Email from Samuel Kuttab, Super Ducks, to Bill Moore, et al, July 10, 2006

*Letter from Tom Rosenberg, Ye Olde History Tours, to the Board of Directors of the Independence Visitor Center Corporation, August 1, 2009

*Email from Tom Rosenberg, Ye Olde History Tours, to the Board of Directors of the Independence Visitor Center Corporation, August 31, 2009

*Email from Michael Kates, Vice President of Operations for Philadelphia Trolley Works and Big Bus Company, to Darla Sidles, then Acting Superintendent of Independence National Historical Park, National Park Service, August 27, 2007

*Franklin's Footsteps brochure

*Franklin's Footsteps page on Philadelphia Trolley Works website

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).