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3 SURVEY OF MINIMUM STANDARDS: COMMERCIAL AERONAUTICAL ACTIVITIES AT AIRPORTS By Daniel S. Reimer, Esq., and Paul A. Meyers Kaplan, Kirsch, Rockwell LLP, Aviation Management Consulting Group I. INTRODUCTION industry practices used in developing and updating air- port Minimum Standards. Numerous commercial aeronautical activities occur The appendices to this digest contain further infor- at airports. Examples of these activities include aircraft mation on the subject of airport Minimum Standards. fueling, aircraft line (ground handling) services, aircraft Appendix A is an index of relevant case law. Appendix maintenance and repair, aircraft storage, aircraft rental B contains the survey conducted for this project and a and flight training/instruction, aircraft sales, and air- summary of the survey results. Appendix C contains craft charter and management. the interview questions and responses. Appendix D con- Airport owners and operators commonly impose re- tains a compendium of comparative Minimum Stan- quirements that must be met by the businesses that dards for commercial aeronautical activities customar- perform these commercial aeronautical activities. These ily conducted at airports. Again, the compendium is not requirements are known as "Minimum Standards." intended to serve as a recommendation. Appendix E Airport Minimum Standards vary from airport to contains a list of abbreviations used herein and defini- airport, based on factors such as the nature of aeronau- tions of key terms. Appendix F contains illustrative tical activities, the type and level of aircraft operations, examples of airport Minimum Standards reflecting the the type and number of based aircraft, the types of diversity of requirements and approaches from airport commercial aeronautical services provided, and avail- to airport. able land and improvements. The Federal Aviation This information, taken together, should assist air- Administration (FAA) recommends against "fill in the port lawyers and others to critically evaluate airport blank" Minimum Standards.1 Minimum Standards and to counsel airports on devel- The Problem Statement for this project noted that oping, implementing, and enforcing airport Minimum there is not a comprehensive source of information on Standards. airport Minimum Standards available to airport law- yers. Section II of this digest provides an introduction to and overview of airport Minimum Standards. Section II. INTRODUCTION TO MINIMUM STANDARDS III summarizes the legal standards for developing and As commonly understood within the aviation indus- implementing airport Minimum Standards, with refer- try and the airport community, Minimum Standards ence to FAA guidance, and more than 30 reported cases are the minimum requirements that must be met for an involving airport Minimum Standards. Section IV pre- entity to conduct aeronautical activities on an airport.2 sents the results of research on the subject of airport Minimum Standards, including a literature review, survey, and interviews. Section V identifies the com- mercial aeronautical activities that customarily occur at airports and summarizes the contents of airport Mini- 2 See id. at App. Z ("Minimum Standards" defined to mean mum Standards. It is important to note that the sum- "[t]he qualifications or criteria that may be established by an mary of airport Minimum Standards contents is not airport owner as the minimum requirements that must be met intended to serve as a recommendation, as content will by businesses engaged in on-airport aeronautical activities for vary from airport to airport. What may be considered the right to conduct those activities."); National Air Transpor- relevant, reasonable, and appropriate at one airport tation Association, Airport Sponsors Guide to Preparing Mini- mum Standards and Airport Rules and Regulations, at 5 may not be at another. Section VI summarizes common (2009), http://www.nata.aero/data/files/GIA/airport_misc/ minstdsguidefinal.pdf. ("Airport minimum standards set forth the minimum requirements an individual or entity wishing to provide aeronautical services to the public on a public-use air- 1 FAA Order 5190.6B, Airport Compliance Manual 10.5(a) port must meet in order to provide those services, such as (2009), available at http://www.faa.gov/airports/resources/ minimum leasehold size, required equipment, hours of opera- publications/orders/compliance_5190_6/ ("The FAA will not tion, and fees."); Aircraft Owners and Pilots Association, endorse `fill-in-the-blank' minimum standards because of the Minimum Standards for Commercial Aeronautical Activities, high probability that many airport sponsors would adopt the at 10 (1998), http://www.aopa.org/asn/minimum_standards. document without modifying it to the needs of their particular pdf (defining "minimum standards" to mean "[t]he criteria airports. This could result in the imposition of irrelevant and established by an airport owner as the minimum requirements unreasonable standards."). that must be met by businesses in order to engage in providing on-airport aeronautical activities or services.").

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4 This understanding of Minimum Standards has been in dards.7 Airport sponsors receiving federal financial as- place for decades.3 sistance through the Airport Improvement Program Minimum Standards are adopted, implemented, and (AIP) are prohibited from granting an exclusive right to enforced by the airport sponsor.4 Minimum Standards conduct aeronautical activities8 and further are re- typically include procedural requirements for obtaining quired to ensure that "the airport will be available for approval from the airport sponsor to engage in aeronau- public use on reasonable conditions and without unjust tical activities and substantive standards related to discrimination."9 Minimum Standards are one way for such activities. an airport sponsor to condition use of the airport.10 While Minimum Standards typically concern com- Minimum Standards also may serve and promote an mercial aeronautical activities (i.e., the sale of aeronau- airport sponsor's obligation to ensure the safe and effi- 11 tical products and services to the public), they also may cient use of the airport. contain standards applicable to noncommercial aero- Minimum Standards serve broad purposes, beyond nautical activities (e.g., private aircraft storage, flying compliance with the airport sponsor's obligations to the clubs). The FAA recommends against regulating certain FAA (known as Sponsor Assurances or Grant Assur- noncommercial activities, particularly self-service, ances). For example, Minimum Standards typically ad- through Minimum Standards.5 As a practical matter, dress the range, level, and quality of products and ser- airport sponsors typically include requirements for self- vices offered to the public as a means of protecting the service, including self-fueling, in Minimum Standards, public and ensuring that the customers of commercial Rules and Regulations, or in both documents. Minimum aeronautical service providers can obtain the products Standards typically do not address nonaeronautical and services required in the manner desired. activities.6 No federal law or regulation requires an airport 7 sponsor to establish and implement Minimum Stan- Director's Determination, The Aviation Ctr., Inc. v. City of Ann Arbor, FAA Docket No. 16-05-01, at 23 (Dec. 16, 2005), http://part16.airports.faa.gov/pdf/16-05-01b.pdf ("neither Fed- eral Law nor policy requires the development of minimum standards."); Director's Determination, Pacific Coast Flyers, 3 See, e.g., FAA Advisory Circular 150/5190-1A, Minimum Inc. v. County of San Diego, FAA Docket No. 16-04-08, at 28 Standards for Commercial Aeronautical Activities on Public 29 (July 25, 2005), http://part16.airports.faa.gov/pdf/16-04- Airports 5(a) (1985), 08b.pdf, http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisor (While recommending the use of minimum standards to avoid yCircular.nsf/8e17c23e2f26e8018625726d006ce776/135131b2 violations of Federal law and to ensure adequate public service, ba5d424786256da9005a84e3/$FILE/150-5190-1a.pdf. ("Mini- the FAA cannot mandate minimum standards at airports. In this particular case, the Complainants' argument that the mum Standards" are defined as "[t]he qualifications which may County has not imposed minimum standards on PAC/Burrows, be established by an airport owner as the minimum require- does not, per se, mean that the County is in noncompliance with ments to be met as a condition for the right to conduct an aero- its Federal obligations or has otherwise violated a particular nautical activity on the airport.") (This Advisory Circular has grant assurance, such as Grant Assurance 23.). been cancelled and superseded.) 8 49 U.S.C. 40103(e) (2010), available at 4 As used herein, "airport sponsor" is intended to refer to the http://www.law.cornell.edu/uscode/49/usc_sec_49_00040103---- public or private entity with primary responsibility for operat- 000-.html ("A person does not have an exclusive right to use an ing an airport and for carrying out the obligations attendant to air navigation facility on which Government money has been the receipt of federal airport grant funding. The terms "airport expended."); 49 U.S.C. 47107(a)(4), available at proprietor" and "airport operator" commonly are used to refer http://www.law.cornell.edu/uscode/49/usc_sec_49_00047107---- to this same entity. 000-.html ("a person providing, or intending to provide, aero- 5 FAA Advisory Circular 150/5190-7, Minimum Standards nautical services to the public will not be given an exclusive for Commercial Aeronautical Activities 1.3(c) (2006), right to use the airport..."). http://www.faa.gov/documentLibrary/media/advisory_circular/1 9 49 U.S.C. 47107(a)(1) (2010) available at 50-5190-7/150_5190_7.pdf, http://www.law.cornell.edu/uscode/html/uscode49/usc_sec_49_0 (Since self-service operations performed by the owner or op- 0047107----000-.html . 10 erator of the aircraft using his or her own employees and equip- See Grant Assurance 22(h), ment are not commercial activities, the FAA recommends that http://www.faa.gov/airports/aip/grant_assurances/media/airpor airport sponsor requirements concerning those non-commercial t_sponsor_assurances.pdf ("The sponsor may establish such activities be separate from the document designed to address reasonable, and not unjustly discriminatory, conditions to be commercial activities. Airport rules and regulations or specific language in leases can better address requirements concerning met by all users of the airport as may be necessary for the safe self-service operations and other airport activities.). and efficient operation of the airport."). 11 6 See FAA Order 5190.6B 10.2 (2009), available at See Grant Assurance 19, http://www.faa.gov/airports/resources/publications/orders/comp http://www.faa.gov/airports/aip/grant_assurances/media/airpor liance_5190_6/ ("There is no requirement to include nonaero- t_sponsor_assurances.pdf. ("The airport and all facilities which nautical activities (such as restaurants or car rental) in mini- are necessary to serve the aeronautical users of the air- mum standards since those activities are not covered under the port...shall be operated at all times in a safe and serviceable grant assurances."); FAA Advisory Circular 150/5190-7 condition and in accordance with the minimum standards as 1.2(d) (same), available at http://www.faa.gov/document may be required or prescribed by applicable Federal, state and Library/media/advisory_circular/150-5190-7/150_5190_7.pdf. local agencies for maintenance and operation.").