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5 Minimum Standards can best be understood as an challenge an airport sponsor's Minimum Standards by exercise of the airport sponsor's proprietary authority filing an informal or formal complaint with the FAA, over an airport, that is, its power as the property owner pursuant to 14 C.F.R. Part 13 and Part 16. Informal to condition use of the facility in exchange for the privi- complaints typically are considered by a compliance lege of conducting aeronautical activities on the air- specialist in an FAA district or regional office.15 Formal port.12 complaints are filed with FAA Headquarters in Wash- The FAA describes the many purposes served by ington, DC. FAA regulations prescribe a multistep Minimum Standards as follows: process for investigating and adjudicating formal com- Promote safety in all airport activities and maintain a plaints.16 higher quality of service for airport users, protect airport An index of administrative and judicial proceedings users from unlicensed and unauthorized products and concerning airport Minimum Standards is provided in services, enhance the availability of adequate services for Appendix A. all airport users, promote the orderly development of air- port land...provide a clear and objective distinction be- B. Reasonableness of Minimum Standards tween service providers that will provide a satisfactory level of service and those that will not...prevent disputes Whether offering comments in response to a request between aeronautical service providers and reduce poten- from the airport sponsor or evaluating Minimum Stan- tial complaints. 13 dards in response to an informal or formal complaint, the FAA's primary responsibility is to ensure that Minimum Standards serve different purposes than Minimum Standards do not violate federal law or the other primary guiding documents such as airport Rules Sponsor Assurances by, in particular, imposing unrea- and Regulations, which regulate a wider variety of ac- sonable conditions, unjustly discriminating, or confer- tivities occurring at an airport, including aeronautical ring an exclusive right to conduct an aeronautical activ- and nonaeronautical and commercial and noncommer- ity.17 The FAA lacks jurisdiction to consider cial activities, and typically are adopted in furtherance of the airport sponsor's police powers to protect health, safety, and welfare. In addition, airport sponsors may adopt leasing and development policies to govern those Ass'n v. Hinson, 102 F.3d 1421, 1427 (7th Cir. 1996); Nw. Air- specific activities. lines, Inc. v. County of Kent, 955 F.2d 1054, 105859 (6th Cir. 1992); New England Legal Found. v. Mass. Port Auth., 883 III. LEGAL PRINCIPLES F.2d 157, 16869 (1st Cir. 1989); Air Transp. Ass'n v. Pub. Utils. Comm'n, 833 F.2d 200, 207 (9th Cir. 1987); Anderson v. USAir, Inc., 818 F.2d 49, 54 (D.C. Cir. 1987); Montauk- A. Challenges to Minimum Standards Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 97 (2d Cir. The FAA does not formally approve airport Mini- 1986); Arrow Airways, Inc. v. Dade County, 749 F.2d 1489, mum Standards, nor is there a requirement to submit 1491 (11th Cir. 1985); Diefenthal v. C.A.B., 681 F.2d 1039, draft documents for FAA review. While the FAA will 10481051 (5th Cir. 1982); Rauch v. United Instruments, Inc., comment on draft documents upon request, the FAA 548 F.2d 452, 455, 460 (3d Cir. 1976); but see Cedarhurst Air Charter, Inc. v. Waukesha County, 110 F. Supp. 2d 891, 895 typically is called upon to evaluate Minimum Standards 99 (E.D. Wis. 2000). in response to an allegation or claim by an existing or 15 See FAA Order 5190.6B 5.45.15, available at prospective airport tenant or user that some aspect of http://www.faa.gov/airports/resources/publications/orders/ the Minimum Standards violates the Sponsor Assur- compliance_5190_6/. ances. 16 See Rules of Practice for Federally-Assisted Airport En- Reviewing courts consistently have held that there is forcement Proceedings, 14 C.F.R. 16 (2009), available at no private right of action to allege a violation of the http://www.access.gpo.gov/nara/cfr/waisidx_09/14cfr16_ statutory prohibition on granting exclusive rights or the 09.html. Sponsor Assurances.14 An airport tenant or user can 17 See Grant Assurance 22, http://www.faa.gov/airports/aip/ 12 grant_assurances/media/airport_sponsor_assurances.pdf (the See Record of Decision, Executive Air Taxi Corp. v. City of airport sponsor shall "make the airport available as an airport Bismarck, FAA Docket Nos. 13-91-5 and 13-92-4, at 24 (June for public use on reasonable terms and without unjust dis- 29, 1993) ("The city established the minimum standards in its crimination to all types, kinds and classes of aeronautical ac- capacity as an airport owner and operator. [49 U.S.C. tivities, including commercial aeronautical activities offering 41713(b)] preserves the authority of local governments in services to the public at the airport."); Grant Assurance 23, their capacity as owners or operators of airports to exercise http://www.faa.gov/airports/aip/grant_assurances/media/ proprietary powers."). airport_sponsor_assurances.pdf (the airport sponsor shall not 13 FAA Order 5190.6B 10.4, available at http://www.faa. grant an "exclusive right for the use of the airport by any per- gov/airports/resources/publications/orders/compliance_5190_ son providing, or intending to provide, aeronautical services to 6/. the public."). See also 49 U.S.C. 40103(e), available at 14 Bowling Green & Warren County Airport Bd. v. Martin http://www.law.cornell.edu/uscode/html/uscode49/usc_sec_49_0 Land Dev. Co., Inc., 561 F.3d 556 (6th Cir. 2009); Sw. Air Am- 0040103----000-.html, 47107(a)(1), available at http://www. bulance, Inc. v. City of Las Cruces, 268 F.3d 1162, 1169 (10th law.cornell.edu/uscode/html/uscode49/usc_sec_49_00047107---- Cir. 2001); Four T's Inc. v. Little Rock Mun. Airport Comm'n, 000-.html and 47107(a)(4), available at http://www.law.cornell. 108 F.3d 909, 916 (8th Cir. 1997); Aircraft Owners and Pilots edu/uscode/html/uscode49/usc_sec_49_00047107----000-.html.