Sanford Air, Inc. v. Town of Sanford, Me. -- No. 16-05-04 -- No. FAA-2005-22372
Director's Determination (05/22/2006) [Determination No.158].
Author:
Bennett, David L., Director
Complainant(s):
Sanford Air, Inc.
Respondent(s):
Sanford (Me.)
Airport(s):
Sanford Airport (SFM)
History:
Affirmed by Final Decision and Order of Mar. 5, 2007. See Determination No. 171.
Holding:
Dismissing complaint.
Abstract:
Complainant Sanford Air, Inc. filed a complaint against Respondent, Town of Sanford, Maine, owner and operator of Sanford Airport, alleging that Respondent was in violation of Grant Assurances 22 and 23 by unjustly discriminating against Complainant and granting another FBO, a through-the-fence operator, an exclusive right. The Director found Respondent not in violation and dismissed the Complaint.|Through-the-Fence Operations:|Respondent did not violate Grant Assurances 22 and 23 by permitting Complainant’s competitor to provide commercial aeronautical services as a through-the-fence operator, at rates that differed from those charged to an FBO tenant operator, where the Airport fees paid by the through-the-fence operator diminished any economic or competitive advantage of not being physically located on the Airport. (p. 19).|"Permitted 'through-the-fence' operators are a separate class of aeronautical users subject to the same minimum standards, airport rules and regulations, and pay appropriate airport fees as other commercial operators located on-Airport.” (p. 19).|Economic Nondiscrimination (Grant Assurance 22):|Respondent did not violate grant obligations in its administration of its fuel flowage fee program where Respondent offered the same rate to Complainant and its competitor. (p. 21).|Respondent did not violate Grant Assurance 22 by requesting an audit from Complainant at Complainant’s expense where Complainant had refused to comply with Respondent’s request for records pursuant to the terms of the lease. (p. 22).|Respondent did not violate Grant Assurance 22 by charging Complainant a higher operating fee than its competitor, a through-the-fence operator, because they were not similarly situated – Complainant was a tenant on the Airport while its competitor was a through-the-fence operator, and Complainant’s lease was at the end of its term while its competitor’s was in the middle of its term. (p. 23).|“A Complainant’s failure to strike a good deal or conduct due diligence in negotiating the terms of its Lease is not a basis for unjust economic discrimination by an airport sponsor under the FAA Grant Assurances.” (p. 25).
Index Terms:
Economic Nondiscrimination (Grant Assurance 22)|Exclusive Rights (Grant Assurance 23)|Unjust economic discrimination|Through-the-fence|Similarly situated|Fuel flowage fees|Fixed-base operator (FBO) agreement