National Park Service: Disparate Treatment by the Independence Visitor Center Corporation and National Park Service Has Unfairly Deprived The Constitutional Walking Tour of Economic Impact from Twenty Million Visitors

Thursday, June 2, 2011

Disparate Treatment by the Independence Visitor Center Corporation and National Park Service Has Unfairly Deprived The Constitutional Walking Tour of Economic Impact from Twenty Million Visitors

Overview
On May 26, 2011, the Independence Visitor Center Corporation ("IVCC") at Independence National Historical Park in Philadelphia celebrated the twenty millionth visitor to the Independence Visitor Center ("IVC"). In its 2010 Annual Report, the IVCC touts its economic impact:

"In 2010, the IVCC influenced approximately $42 million in additional tourism spending--at attractions, restaurants, shops and more--and the positive impressions and memories generated have immeasurable benefits for years to come."

"22% of visitors report that they spend more in Philadelphia because of their visit to the Visitor Center. The average increase in expenditures was $155."

"As a result of their visit to the Independence Visitor Center, participants added an average of 2.3 attractions to their itinerary (average of 2008, 2009 and 2010)." (emphasis found in original quotation)

Unfortunately, The Constitutional Walking Tour ("The Constitutional") had no access to the vast majority of the twenty million visitors and resulting economic impact therefrom, because of the disparate treatment that The Constitutional had received at the hands of the IVCC and the National Park Service ("NPS"). In turn, these regulations which were applied randomly and arbitrarily had a pronounced detrimental effect on The Constitutional's business, ultimately driving The Constitutional from the Independence Visitor Center.

On February 20, 2008, Bill Moore, President and CEO of the IVCC, testified to Philadelphia City Council, "One of the hallmarks of a visit to any historic city is a great tour." The Constitutional Walking Tour agrees that a great tour can illuminate the incredible past of a historic city, especially Philadelphia which is America's Birthplace. Unfortunately, Mr. Moore, other IVCC officials, and the NPS have negotiated back-room deals and arbitrarily dictated which tours visitors should take, thereby suppressing consumer choice and the free market in the pursuit of random and unfair regulation.

Past Disparate Treatment by the IVCC
As President and CEO of the Independence Visitor Center Corporation, a taxpayer funded private company which operates the Federally owned Independence Visitor Center ("IVC"), Mr. Moore failed to offer equal concessions sales and marketing opportunities to tour operators inside of the IVC, instead favoring some tour operators and vendors over others.

One of these favored operators was Ride the Ducks, a private company that Mr. Moore made repeated, extraordinary efforts to accommodate and preference. For example, on April 19, 2005, Bill Moore wrote to Scott Lewis, General Manager of Ride the Ducks Philadelphia,

"There is the high likelihood that each of the tour operators are going to want the same type space [ticket sales booth] in the [Independence] Visitor Center when your group [Ride the Ducks] moves in the building. We are planning on a large area with equal spaces so we don’t have to deal with the equality issues between operators."

This statement indicates both the gravitas Mr. Moore gave to Ride the Ducks in establishing a dedicated interior ticket sales concession booth and, conversely, the value that the IVCC seemingly placed on equality amongst tour vendors.

Though Mr. Moore was willing to help Ride the Ducks, and though Mr. Moore indicated a desire for equality among tour operators, Mr. Moore did not extend to The Constitutional Walking Tour the same willingness to provide ticket sales concessions space that he had extended to Ride the Ducks. While the IVCC and NPS should be accustomed to handling complaints from third party tour vendors, Ride the Ducks is one of the few company's that the IVCC's management has repeatedly chosen to accommodate; The Constitutional has had to endure competing on an unlevel playing field.

This unfair competition dates back to 2005. For example, after The Constitutional met with Mr. Moore regarding visibility and accessibility for its tours inside of the Independence Visitor Center, on May 16, 2006 at 9:04AM, Mr. Moore wrote to The Constitutional’s Leslie Bari with a copy to Christine Keates, General Manager of the IVCC,

"As we indicated in our meeting - I suggested that follow up with the NPS would be in order. Anything outside the doors of the Independence Visitor Center is not within our management. While we expressed concerns in our meeting the ones you have articulated is not a totally accurate representation of our discussions. The concept of having a guide complete with sign and all within the center is not on the table. I cannot make any guarantees on how the NPS may respond now or at some future time. We held a meeting to be clear and concise about our wishes and remain hopeful that your company will follow those requests."(emphasis added)

Mr. Moore's statement was untrue!

In that case, Mr. Moore clearly avoided helping The Constitutional secure outdoor marketing points of presence immediately adjacent to the Independence Visitor Center. Instead, Mr. Moore eschewed all responsibility for the area outside of the IVC, and instead redirected The Constitutional to another party - the National Park Service. Very strangely, though, that same day at 5:31PM, Mr. Moore wrote to Ms. Keates, with a copy to Steve Dutcher, General Manager of Ride the Ducks Philadelphia,

"I spoke to Steve Dutcher [General Manager, Ride the Ducks] late today about the staging of the Ducks and impact on their business with the move [to the loading zones outside of the Independence Visitor Center]. It seems at the moment that visibility is a big issue until visitors get used to the new place. Steve would like to try and move into our [IVC] loading zone and then give us some space at the end - of a vehicle. A form of visual to make things better for their business. Steve has talked to city officials who are willing to give them some room to improve things and see what the result look like. Let’s see if we can get out there tomorrow [in front of IVC main entrance and on 6th Street sidewalk, both of which are “controlled” by National Park Service] with Steve and see what options we can look at to help out."

Therefore, while Mr. Moore refused to help The Constitutional with establishing any marketing presence where "visibility is a big issue" outside of the IVC, Mr. Moore went out of his way to accommodate and to aid Ride the Ducks in establishing dominant outdoor marketing points of presence.

The insincerity of Mr. Moore's overtures for equality at the IVC amongst tour operators foreshadowed a decision by the IVCC to completely abandon fairness in the name of providing preferential treatment to select tour operators with which it negotiated back room deals. On July 5, 2007, Mr. Moore wrote to the National Park Service’s Dennis Reidenbach and Steve Sitarski,

"The installation of [ticket sales] booths is not a one size fits all plan. We treat each request as a future partner that would be beneficial to visitors, work well with other entities in the building and be of financial interest to supporting the IVCC mission." (emphasis added)

Instead of valuing equality, a level playing field and consumer choice, as he once claimed to, Mr. Moore clearly supported the self-interest of the IVCC and its preferred partners such as Ride the Ducks above all else. Instead of seeking to establish fair conditions for tour operators at the IVCC to competitively bid on concessions sales opportunities as is done in every other national park across the National Park Service system, Mr. Moore became the gatekeeper to Philadelphia tourism, randomly and arbitrarily choosing which companies he wanted to succeed, and leaving all others--like The Constitutional--trapped in unfair conditions.

Since 2005, The Constitutional has also tried to license for a fee a dedicated ticket sales concessions booth inside of the IVC (staffed by The Constitutional's employees) on fair, reasonable and non-discriminatory terms similar to other third parties including Ride the Ducks and Philadelphia Trolley Works. While Ride the Ducks and Philadelphia Trolley Works were offered significant commercial advantages, The Constitutional was offered no such thing. Instead, The Constitutional had to repeatedly and actively seek a ticket sales booth, only to have The Constitutional's repeated good faith efforts rebuffed or denied. The IVCC strongly opposed The Constitutional having such a booth; in fact, Mr. Moore claimed that, if The Constitutional were granted its requests for equitable commercial opportunities, "Chaos will be the result."

As discussed, all of The Constitutional's requests to license for a fee a ticket sales booth were either rebuffed or ignored until Summer 2008, at which time The Constitutional was required to sign a stand-alone broad-based Confidentiality Agreement which was commercially unreasonable and not required of The Constitutional's competitors at INHP.

More Recent Disparate Treatment by the IVCC
Unfortunately, these practices did not end with Mr. Moore's departure from the IVCC in January 2009. Mr. Moore's successor as the IVCC's President and CEO, Jim Cuorato, also enacted inequitable policies at the Independence Visitor Center.

One of Mr. Cuorato's first orders of business was relegating The Constitutional and other walking tour operators to the North End of the the Independence Visitor Center, in a location far removed from the attention of those potential customers in the Independence Visitor Center. A space analysis commissioned by the IVCC concluded that the North End--where walking tours now must stage--was "empty and disorienting."

While this policy ostensibly applied to all walking tour operators, the IVCC and NPS enabled Philadelphia Trolley Works, and its Franklin's Footsteps walking tour, to openly skirt these regulations. Many visitors could not even locate The Constitutional's cluttered meeting spot at the back of the IVC next to the "playmotion screen," even after asking for directions from the IVCC and NPS staff.

On the other hand, visitors seeking the Franklin's Footsteps walking tour did not seem to have any similar problems locating it since Philadelphia Trolley Works activley marketed that its walking tour meeting/departure point is from its Sightseeing Kiosk at the IVC, which is staffed throughout the day by Philadelphia Trolley Works' employees and not just for 10 (ten) minutes prior to the tour like The Constitutional was relegated to do in the North end of the IVC.

Having its walking tour meet at a more prominent location from that which all other walking tours are required to meet gave Philadelphia Trolley Works and Franklin's Footsteps a distinct competitive advantage over their competitors, including The Constitutional. Philadelphia Trolley Works even blatantly advertised and promoted a staging location for Franklin's Footsteps that was different from the staging locations for other tours:

On the Franklin's Footsteps Rack Card Brochure--which is distributed at IVC main sales and information desk, the PTW Sightseeing Kiosk, on NPS property at 5th & Market Streets, and other locations--it states,
"Tickets/Departures from our Sightseeing Tour Kiosk at Independence Visitor Center (6th & Market Streets);" the words "Sightseeing Tour Kiosk" are even bolded on the brochure.

On the Web site of Philadelphia Trolley Works, it states, "Tours depart from the Sightseeing Tour Kiosk at the Independence Visitor Center."

On the IVCC'S Web site, it states, "Join us as at the Sightseeing Kiosk located inside The Independence Visitor Center to walk back in time to colonial Philadelphia and the birthplace of a nation."

On the Greater Philadelphia Tourism Marketing Corporation's Web site, it states "Tours depart from the Sightseeing Tour Kiosk at the Independence Visitor Center."

On Where Magazine's Web site, it states, "Tours depart from the Philadelphia Trolley Works kiosk inside Independence Visitor Center, Sixth and Market sts."

While the IVCC and NPS continually allowed and enabled Franklin's Footsteps to overtly violate policies and gain unfair advantages, the IVCC also refused any efforts to remedy the situation.

Disparate Treatment by the National Park Service
The National Park Service also engaged in similar disparate treatment of The Constitutional compared to its competitors at INHP. For example, The Constitutional has been unable to acquire a Commercial Use Authorization (CUA) for conducting business on park property, yet Ride the Ducks, which has received numerous CUAs from the NPS since 2006, has regularly violated the express terms of its CUAs without any repercussions from the NPS.

Furthermore, while Ride the Ducks and Philadelphia Trolley Works have been able to establish substantial marketing points of presence on NPS property both inside and outside of the Independence Visitor Center, The Constitutional cannot even secure a meeting with NPS officials. Since April 2008, The Constutional made repeated good faith requests to meet with Cynthia MacLeod, the current Superientendent of INHP. It is rather telling that the first time officials from The Constitutional met Superintendent MacLeod, the parties were at a settlement conferenece at the U.S. Federal Courthouse in Philadelphia in April 2010 in the matter of The Constitutional Guided Walking Tours, LLC, Jonathan H. Bari and Leslie S. Bari v. Independence Visitor Center Corporation, William W. Moore, National Park Service, Dennis Reidenbach, Cynthia MacLeod and Darla Sidles.

During the entire time that the NPS and IVCC refused to offer commercial opportunities including ticket sales concessions contracts to The Constitutional on fair, reasonable and non-discriminatory terms, similar to Ride the Ducks, Philadelphia Trolley Works and Big Bus Company, the IVCC's operation of the Independence Visitor Center was governed by the NPS's Special Use Permit through which the IVCC managed the IVC "subject to the supervision of the [NPS's] Superintendent" [Cynthia MacLeod and her manager Reidenbach] and "consent of, the National Park Service." Further, during this entire time in which The Constitutional encountered disparate treatment at the IVCC, NPS officials served on the Board of Directors of the IVCC.

The IVCC and NPS have made it a habit to coddle, support, and promote companies like Ride the Ducks and Philadelphia Trolley Works, while simultaneously acting to oppose and damage The Constitutional Walking Tour by subjecting The Constitutional to terms, conditions (such as a commercially impracticable Confidentiality Agreement), retribution, and general treatment that other tour operators do not have to endure. Such disparate treatment is reprehensible and wholly unacceptable.

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Exhibits:

*Press Release: "Independence Visitor Center Celebrates 20 Million Visitors Since Opening 10 Years Ago in Philadelphia," May 26, 2011.

*2010 IVCC Annual Report.

*Testimony of Bill Moore, President and CEO of the IVCC, to the Philadelphia City Council, February 20, 2008.

*Email from Mr. Moore to Scott Lewis, General Manager of Ride the Ducks Philadelphia, April 19, 2005.

*Email from Mr. Moore to The Constitutional, May 16, 2006.

*Email from Mr. Moore to Christine Keates, General Manager of the IVCC, May 16, 2006.

*Image of dominant outdoor marketing presence of Ride the Ducks at Independence National Historical Park.

*Email from Mr. Moore to Dennis Reidenbach and Steve Sitarski, National Park Service, July 5, 2007.

*Rack Card for Franklin's Footsteps.

*Biography of Cynthia MacLeod, Superintendent of Independence National Historical Park, National Park Service.

*Complaint in the matter of The Constitutional Guided Walking Tours, LLC, Jonathan H. Bari and Leslie S. Bari v. Independence Visitor Center Corporation, William W. Moore, National Park Service, Dennis Reidenbach, Cynthia MacLeod and Darla Sidles.

*Special Use Permits issued by NPS to IVCC for the Operation of the Independence Visitor Center.

*The Board of Directors of the IVCC.

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).