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8 The FAA found that, while the airport sponsor did A federal court held that an airport sponsor did not not engage in economic discrimination in its enforce- violate the Racketeer Influenced and Corrupt Organiza- ment of the airport's Minimum Standards, the sponsor tions Act for allegedly concealing the minimum stan- violated Assurance 5 (Preserving Rights and Powers) as dards for retail fuel sales.38 a result of its "informal business practices, ad hoc pro- cedures, and non-transparent decision-making proc- E. Amendments to Minimum Standards esses."35 Just as it is the airport sponsor's prerogative to adopt Minimum Standards, airport sponsors can amend D. Judicial Challenges to Minimum Standards or update Minimum Standards as well. Amendments to Airport Minimum Standards may implicate protec- Minimum Standards also must be reasonable and not tions under the U.S. Constitution and the requirements unjustly discriminatory and must not confer an exclu- of federal and state law. An existing or prospective ten- sive right to conduct an aeronautical activity.39 While an ant or user can file a complaint in federal or state court airport sponsor generally can limit new commercial to present claims of Constitutional deprivation or statu- aeronautical activities while drafting or updating tory violation. Minimum Standards, sponsors must find reasonable Reviewing courts have found the following in re- alternatives to accommodate certain activities, such as sponse to allegations regarding airport Minimum Stan- self-fueling, that the FAA has declared must be permit- 40 dards: ted. One issue that may arise when an airport sponsor A federal court held that an airport sponsor did not amends its Minimum Standards is the application of violate the Equal Protection Clause or Due Process the amended Minimum Standards to existing airport Clause of the Fourteenth Amendment by imposing dif- tenants and users. Whether or not the amended stan- ferent and more onerous standards upon a full-service dards apply typically is a function of the language of the 36 FBO than upon limited service providers. existing leases, permits, and other relevant agreements. A federal court held that an airport sponsor is im- The FAA recommends that airport sponsors impose a mune from suit under the Sherman Act for allegedly continuing obligation to comply with amendments to anti-competitive behavior in the terms and enforcement Minimum Standards.41 The FAA recognizes that of Minimum Standards.37 38 Rectrix Aerodrome Ctrs., Inc. v. Barnstable Mun. Airport Comm'n, 632 F. Supp. 2d 120, 12627 (D. Mass. 2009). 39 See FAA Advisory Circular 150/5190-7 1.2(e), tenant to the detriment of others. This results in the granting http://www.faa.gov/documentLibrary/media/advisory_circular/1 of an exclusive right to the tenant enjoying the advantage."). 35 50-5190-7/150_5190_7.pdf ("Minimum standards can be Director's Determination, Moore v. Sumner County Reg'l amended periodically over time; however, a constant juggling Airport Auth., FAA Docket No. 16-07-16, at 42 (Feb. 2009), of minimum standards is not encouraged.... An airport sponsor http://part16.airports.faa.gov/pdf/16-07-16b.pdf. can provide for periodic reviews of the minimum standards to 36 Executive Air Taxi Corp. v. City of Bismarck, 518 F.3d ensure that the standards continue to be reasonable."); Final 562, 56669 (8th Cir. 2008). See also Rectrix Aerodrome Ctrs., Decision and Order, Airborne Flying Serv. v. City of Hot Inc. v. Barnstable Mun. Airport Comm'n, 632 F. Supp. 2d 120, Springs, FAA Docket No. 16-07-06, at 17 (May 2, 2008), 128130 (D. Mass. 2009) (same); AH Aero Servs. v. Ogden City, http://part16.airports.faa.gov/pdf/16-07-06.pdf, 2007 U.S. Dist. LEXIS 65322 * 47 (D. Utah Aug. 31, 2007), (It is reasonable and prudent to review and update standards https://ecf.utd.uscourts.gov/cgi-bin/show_public_doc? and regulations for proposed aeronautical activities to ensure 2005cv0066-249 (court held that airport sponsor did not violate those standards and regulations serve to promote safety, protect Equal Protection Clause or Due Process Clause of Fourteenth airport users from unlicensed and unauthorized products and Amendment by allegedly differential enforcement of Minimum services, maintain and enhance the availability of adequate ser- Standards); Pan Am. Airways Corp. v. Pease Dev. Auth., 2003 vices for all airport users, promote the orderly development of U.S. Dist. LEXIS 19346* 36 (D.N.H. Oct. 29, 2003) (court held airport land, and ensure efficiency of operations.). that airport sponsor did not violate Equal Protection Clause of Director's Determination, Carey v. Afton-Lincoln County the Fourteenth Amendment by imposing different rules related Mun. Airport Joint Powers Bd., FAA Docket No. 16-06-06, at to retail fuel sales and self-fueling). 35 (Jan. 19, 2007), http://part16.airports.faa.gov/pdf/16-06- 37 Rectrix Aerodrome Ctrs., Inc. v. Barnstable Mun. Airport 06b.pdf ("The airport owner or sponsor may quite properly Comm'n, 534 F. Supp. 2d 201, 20306 (D. Mass. 2008). But see increase the minimum standards from time to time in order to Scott Aviation, Inc. v. DuPage Airport Auth., 393 F. Supp. 2d ensure a higher quality of service to the public. Manipulating 638, 64647 (N.D. Ill. 2005) (rejecting motion to dismiss the standards solely to protect the interest of an existing ten- Sherman Act claim based on immunity); Cedarhurst Air Char- ant, however, is unacceptable."); Record of Decision, Int'l Avia- ter, Inc. v. Waukesha County, 110 F. Supp. 2d 891, 89395 tion, Inc. v. City of Frederick, FAA Docket No. 13-89-5, at 12 (E.D. Wis. 2000) (rejecting assertion of immunity from 14 (Mar. 6, 1992) (FAA found that changes in the Minimum Sherman Act claim). See also Top Flight Aviation, Inc. v. Wash. Standards did not violate Grant Assurance 22 or Grant Assur- County Reg'l Airport Comm'n, 224 F. Supp. 2d 966, 97277 (D. ance 23). 40 Md. 2002) (court held that an airport sponsor did not engage in See Director's Determination, Maxim United v. Jefferson anti-competitive behavior in violation of the Sherman Act for County, FAA Docket No. 16-01-10, at 24 (Apr. 2, 2002), denying access to an airport by a business that did not satisfy http://part16.airports.faa.gov/pdf/16-01-10b.pdf. 41 the Minimum Standards). Id. at 22.