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6 constitutional and contractual issues that may be re- The FAA found that it was unreasonable for an lated to Minimum Standards.18 airport sponsor to require that an aircraft rental com- More specifically, the FAA requires that Minimum pany perform certain administrative functions at the Standards be "relevant to the activity for which they airport and have staff available even when no sched- apply" and "attainable."19 The FAA also has advised uled business was taking place, because the require- that Minimum Standards should "reasonably protect ments were unduly burdensome and not relevant to the the investment of providers of aeronautical services to business conducted.24 meet minimum standards from competition not making The FAA found that requiring an airport tenant to a similar investment."20 place his fuel tanks in a designated fuel farm was nei- The FAA has advised that it does not "control or di- ther unreasonable nor unduly burdensome.25 21 rect the operation of airports" and typically does not The FAA found that fees and other requirements 26 substitute its judgment or second-guess an airport on self-fueling operations were reasonable. sponsor's decision to impose particular standards. The The FAA found that requiring commercial aero- following are some examples of FAA decisions in re- nautical service providers to lease and develop airport sponse to formal complaints regarding the requirements property in conformance with the airport master plan of specific airport Minimum Standards: and airport layout plan was reasonable and not un- justly discriminatory.27 The FAA found that an airport sponsor could re- The FAA found that imposing minimum-leased- quire that an air carrier operating aircraft with more space requirements for commercial aeronautical service than nine seats maintain aircraft liability insurance of providers was reasonable and not unjustly discrimina- $20 million per occurrence, but further found that it tory.28 would be unreasonable to require such coverage for an air carrier operating nine-seat aircraft because such C. Enforcement of Minimum Standards 22 coverage may not be attainable. To comply with the Sponsor Assurances, the FAA The FAA found that requiring fixed base operators further requires that Minimum Standards must be ob- (FBOs) to provide certain services in exchange for the privilege of selling aviation fuel was neither unreason- able nor unjustly discriminatory.23 24 Director's Determination, Roger Leonard Cardinals' Pilot Shop v. Chesapeake Airport Auth., FAA Docket No. 16-01-06, 18 See 14 C.F.R. 16.1, available at http://www.access. at 36 (Oct. 22, 2002), http://part16.airports.faa.gov/pdf/16-01- gpo.gov/nara/cfr/waisidx_09/14cfr16_09.html. 06b.pdf, 19 FAA Order 5190.6B 10.2, available at ([W]hile we find it is reasonable for the Complainant to main- http://www.faa.gov/airports/resources/publications/orders/comp tain a certain level of business presence at CPK--including of- liance_5190_6/, FAA Advisory Circular 150/5190-7 1.2(a), fice space and staffing at the time of aircraft pick-up--we do not find it reasonable to require the Complainant to (1) conduct his http://www.faa.gov/documentLibrary/media/advisory_circular/1 scheduling, dispatching, and record-keeping functions at CPK, 50-5190-7/150_5190_7.pdf. and (2) maintain continuous staffing of the office during busi- 20 FAA Advisory Circular 150/5190-7 1.2(d)(3), ness hours when the Complainants aircraft based at CPK are http://www.faa.gov/documentLibrary/media/advisory_circular/1 not being leased.). 50-5190-7/150_5190_7.pdf. 25 Final Decision and Order, Airborne Flying Serv. v. City of 21 Director's Determination, BMI Salvage Corp. v. Miami- Hot Springs, FAA Docket No. 16-07-06, at 1519 (May 2, 2008), Dade County, FAA Docket No. 16-05-16, at 9 (July 25, 2006), http://part16.airports.faa.gov/pdf/16-07-06.pdf. See also Final http://part16.airports.faa.gov/pdf/16-05-16b.pdf, BMI Salvage Decision and Order, Turner v. City of Kokomo, FAA Docket No. Corp. v. FAA, 272 F. Appx 842 (11th Cir. 2008). 16-98-16 (July 27, 1999), http://part16.airports.faa. 22 Final Decision and Order, Flamingo Express v. City of gov/pdf/16-98-16a.pdf. 26 Cincinnati, FAA Docket No. 16-06-04, at 1416 (Aug. 7, 2007), Director's Determination, Scott Aviation v. DuPage Air- http://part16.airports.faa.gov/pdf/16-06-04.pdf. port Auth., FAA Docket No. 16-00-19, at 2 (July 19, 2002), 23 Director's Determination, Self Serve Pumps, Inc. v. Chi- http://part16.airports.faa.gov/pdf/16-00-19b.pdf, cago Executive Airport, FAA Docket No. 16-07-02, at 2122 (We find the minimum standards and the fees established by (Mar. 17, 2008), http://part16.airports.faa.gov/pdf/16-07- the Airport Authority for self-fueling operations are generally 02b.pdf ("Bundling aeronautical services with the retail sale of reasonable, including (a) payment of a $.025 fuel flowage fee, (b) fuel and setting levels of service for fueling are long-standing using off-airport parking for its fuel trucks, (c) maintaining a and common industry practice."); Director's Determination, $1,000,000 environmental liability insurance policy, (d) deposit- ing the deductible amount associated with the $1,000,000 envi- Lanier Aviation LLC v. City of Gainesville, FAA Docket No. 16- ronmental liability insurance policy with the Airport Authority, 05-03, at 12 (Nov. 25, 2005), and (e) enforcing special licensing requirements for fuel truck http://part16.airports.faa.gov/pdf/16-05-03b.pdf, drivers.). 27 ([N]either the City's Federal obligations nor the Advisory Cir- Record of Determination, Buffalo Jet Ctr., Inc. v. Niagara cular prevent a sponsor from issuing minimum standards re- Frontier Transp. Auth., FAA Docket No. 16-98-01, at 2024 garding the required level-of-service associated with retailing (Aug. 19, 1998), http://part16.airports.faa.gov/pdf/16-98- aviation fuel at the Airport. In fact, the FAA relies on airport 01b.pdf. sponsors to create minimum standards for the provision of avia- 28 tion services at its airport which best serve the civil aviation in- Record of Decision, Hamilton v. City of Yankton, FAA terests of the public.). Docket No. 13-93-06, at 27 (Oct. 23, 1995).

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7 jectively and uniformly applied.29 The following are found, in a prior proceeding involving the same airport, some examples of FAA decisions in response to formal that the airport sponsor was unjustly discriminating complaints regarding the application and enforcement against an FBO by failing to apply and enforce the air- of Minimum Standards: port Minimum Standards objectively and uniformly to similarly situated airport tenants.33 The FAA found that it was not unreasonable for an The FAA found that an airport sponsor engaged in airport sponsor to waive certain minimum standards for unjust discrimination and impermissibly granted an a prospective tenant where the airport sponsor previ- exclusive right when it failed to require a tenant to ously had waived the same standards for another ten- comply with amended Minimum Standards where the ant.30 lease agreement required compliance with amended The FAA found that it was not unjustly discrimi- standards.34 natory for an airport sponsor to refuse to waive certain minimum standards for a tenant, where the tenant had alleged that the airport sponsor had failed to enforce See also Penobscot Air Servs. v. FAA, 164 F.3d 713, 728 (1st different minimum standards against another airport Cir. 1999) 31 tenant. (Penobscot alleges that Knox County permitted Barnstorm The FAA found that an airport sponsor was not Aviation to perform commercial aircraft maintenance without a unjustly discriminating against an FBO by failing to lease and without complying with Knox County's minimum standards, whereas Penobscot was required to comply with all enforce minimum insurance requirements, where the minimum standards. Penobscot states this allegation in conclu- sponsor had demanded corrective action by both airport sory terms, and failed to supply the agency either with specifics FBOs to satisfy the requirements.32 However, the FAA or with evidence to support its claim. Therefore the FAA dis- missed Penobscot's claim on the ground that it was "unsubstan- tiated and without supportive documentation to warrant further 29 investigation." That decision was not arbitrary or capricious.). FAA Order 5190.6B 10.2, available at http://www.faa. gov/airports/resources/publications/orders/compliance_5190 Final Decision and Order, Rick Aviation v. Peninsula Air- _6/, FAA Advisory Circular 150/5190-7 1.1, http://www.faa. port Comm'n, FAA Docket No. 16-05-18, at 918 (Nov. 6, 2007), gov/documentLibrary/media/advisory_circular/150-5190-7/150 http://part16.airports.faa.gov/pdf/16-05-18.pdf; Director's De- _5190_7.pdf. termination, The Aviation Ctr., Inc. v. City of Ann Arbor, FAA 30 Docket No. 16-05-01, at 2328 (Dec. 16, 2005), Director's Determination, Johnson v. Goldsboro-Wayne http://part16.airports.faa.gov/pdf/16-05-01b.pdf; Director's Airport Auth., FAA Docket No. 16-08-11, at 36 (Oct. 9, 2009), Determination, GFK Flight Support, Inc. v. Grand Forks Reg'l http://part16.airports.faa.gov/pdf/16-08-11b.pdf, Airport Auth., FAA Docket No. 16-01-05, at 29 (Mar. 22, 2002), (While the Director does not condone the Respondent's prac- http://part16.airports.faa.gov/pdf/16-01-05b.pdf, tice of routinely deviating from its Minimum Standards, this alone is not a violation of the Federal Grant Assurances. The ([W]e note that it is possible for an airport sponsor to be question before the Director is whether or not these deviations found in violation of its Federal obligations for failure to investi- result in the dissimilar treatment of two similarly situated par- gate alleged misconduct of a flying club when the sponsor has ties. Because the Complainant was offered the same waivers at been provided with a reasonable basis for further investigation. SIG, an allegation of unjust discrimination cannot stand.). A sponsor could also be in noncompliance for failing to terminate 31 a flying club's use or lease agreement if said flying club contin- Director's Determination, Self Serve Pumps, Inc. v. Chi- ues to violate the conditions of its tenancy required by FAA Or- cago Executive Airport, FAA Docket No. 16-07-02, at 27 (Mar. der 5190.6A. However, we find that it was reasonable for the 17, 2008), http://part16.airports.faa.gov/pdf/16-08-11b.pdf, Respondent not to terminate the Flying Club's tenancy at the (It is insufficient to simply state that another party is manag- airport in this case.). ing to escape sanction from the airport sponsor by departing Director's Determination, United Aircraft Servs., Inc. v. from standards in one way, so that the airport sponsor must al- Hancock County Port Comm'n, FAA Docket No. 16-00-04, at low a complaining party to depart from standards in a different 1517 (Oct. 12, 2000), http://part16.airports.faa.gov/pdf/16-00- way. In fact, to sustain an allegation of unjust discrimination, 04b.pdf. the Complainant, in the extant case, must comply with Mini- 33 mum Standards to a degree similar to Signature Aviation and Director's Determination, Royal Air, Inc. v. City of request similar treatment in any preference granted by the Air- Shreveport, FAA Docket No. 16-02-06, at 53 (Jan. 9, 2004), port.). http://part16.airports.faa.gov/pdf/16-02-06b.pdf, 32 Director's Determination, Flightline Aviation, Inc. v. City (Specifically, the Director found: Respondent did not enforce of Shreveport, FAA Docket No. 16-07-05, at 27 (Mar. 7, 2008), its minimum leased-space requirements for aircraft rental op- http://part16.airports.faa.gov/pdf/16-08-11b.pdf, erations; Respondent inconsistently interpreted and applied its requirement for fixed-base operators to employ mechanics or to (In this case, Respondent clearly understands its obligations make such mechanics available for repair services; under Grant Assurance 22; that it must enforce standards ...Respondent did not enforce its policy to ensure only author- equally among similarly situated operators. It has a program or ized mechanics meeting the minimum standards were providing process in place and is implementing that program to ensure services on the airport[;] Respondent did not enforce its mini- compliance with Grant Assurance 22 as evidenced by a multi- mum insurance standards for aircraft rental operations.). tude of correspondence to the two FBOs for the violations of the 34 Amended Minimum Standards and the actions by Respondent to Director's Determination, Carey v. Afton-Lincoln County address those violations.... The fact Respondent may not have Mun. Airport Joint Powers Bd., FAA Docket No. 16-06-06, at enforced certain provisions of its standards in the past does not 38 (Jan. 19, 2007), http://part16.airports.faa.gov/pdf/16-06- impact [its] compliance status today since it is equitably enforc- 06b.pdf ("In this case, the minimum standards may not be ing the insurance provisions of its Amended Minimum Stan- unreasonable, but the Respondent is applying the minimum dards upon both FBOs today.). standards in such a manner to provide an advantage for one