Lexis Cite:
2001 FAA LEXIS 284
Westlaw Cite:
2001 WL 438619
Author:
Bennett, David L., Director
Complainant(s):
Boca Airport, Inc.|Boca Aviation
Respondent(s):
Boca Raton (Fla.) Airport Authority
Airport(s):
Boca Raton Airport (BCT)
History:
Affirmed by Final Decision and Order of Mar. 20, 2003. See Determination No. 112.
Holding:
Dismissing complaint.
Abstract:
Complainant Boca Aviation, incumbent FBO, filed a complaint against Respondent, Boca Raton Airport Authority, owner and operator of the Boca Raton Airport alleging that Respondent's change to a previously accepted Corrective Action Plan (CAP) and subsequent lease of the only undeveloped parcel of land to a competing FBO violated Grant Assurances 1, 5, 6, 7, 8, 22, 24, 25, and 29. In a previous proceeding filed by Boca Jet Center (another FBO), Respondent was found to have violated the exclusive rights prohibition of Grant Assurance 23 by leasing the only remaining undeveloped parcel of land to the incumbent FBO, Boca Aviation, the Complainant in this proceeding, to expand its facilities even though the incumbent did not have an immediate need for such expansion. The FAA had approved a CAP that would eliminate the exclusive right by establishing that the Respondent, under its proprietary rights, would construct and operate several aeronautical facilities on the last remaining undeveloped land at the Airport. Subsequent to the FAA's acceptance of the CAP, Respondent passed a resolution to amend the CAP to permit the issuance of a Request for Proposals for a qualified proposer to lease and improve for use the remaining parcel of land. FBO Premier Aviation was ultimately awarded the lease. The Director concluded that the Respondent was not in violation of the Grant Assurances and dismissed the Complaint.|Alteration of CAP:|Where the express intent of the Director's Determination and the Final Director's Determination in the prior proceeding was to have Respondent eliminate the exclusive right granted to incumbent, Respondent did not violate Grant Assurance 1 (General Federal Requirements) by entering into an agreement with another FBO to construct facilities instead of constructing them itself as the CAP provided. This alteration of the CAP was consistent with the overall aim of the FAA and was therefore consistent with federal requirements (p. 24).|Funding for Projects:|Where none of the projects contained in the competing FBO's proposal for airport development would be funded, in part or in whole, with Airport Improvement Program Funds, Respondent could not be in violation of Grant Assurance 6, 7 or 8. (p. 26).|Operation and Maintenance (Grant Assurance 19):|Respondent's plan to convert land previously committed to aeronautical use to non-aeronautical use and not to construct certain facilities did not conflict with Grant Assurance 19 (Operation and Maintenance). "The purpose of Grant Assurance No. 19(a) is to ensure existing facilities that serve the aeronautical users of the airport will be operated, at all times, in a safe and serviceable condition." (p. 29). There was nothing in Respondent's plan which indicated that facilities were not being operated at all times in a safe and serviceable condition. (p. 29).|Airport Layout Plan:|Complainant could not challenge a change in the Airport Layout Plan (ALP) under Grant Assurance 29 in a Part 16 proceeding where the ADO had conditionally approved it. Part 16 is the appropriate forum for complaints against airports, not against the FAA. (p. 30).|Preserving Rights and Powers:|Since the FAA had determined elsewhere in this decision that Respondent's decision to lease the only remaining parcel to a competing FBO was not in violation of its federal obligations, the FAA could not determine that Respondent was in violation of Grant Assurance 5 (Preserving Rights and Powers). (p. 32).|Economic Nondiscrimination (Grant Assurance 22):|Respondent prohibiting Complainant from submitting a proposal to develop a parcel of land that the FAA previously determined could not be awarded to Complainant without granting an exclusive right was not unjust discrimination in violation of Grant Assurance 22. FAA allows a sponsor to exclude an FBO from responding to a request for proposals based on the sponsor's desire to create competition at the airport. Moreover, allowing Complainant to submit a proposal would have defeated the purpose of the Director's Determination and Final Director's Determination in the prior proceeding. (p. 33).|Complainant's allegation that Respondent unjustly discriminated against it by filing a counterclaim in Complainant's state court lawsuit against Respondent was without merit. (p. 35).|Fee and Rental Structure (Grant Assurance 24):|Where Respondent's Minimum Standards stated that an FBO must have "a minimum of 12 acres of land upon which all required improvements for facility, ramp area, vehicle parking, roadway access, and landscaping will be located," FAA agreed with Respondent's interpretation that this required that an FBO's leasehold be at least 12 acres upon which required facilities and services must be constructed or provided. (p. 36).|Complainant's allegation that Respondent violated Grant Assurance 24 (Fee and Rental Structure) by granting permission for a temporary use of aviation land for a parking lot without rent was moot where Respondent demonstrated that it was then receiving rent for the parcel. (p. 40).|Airport Revenues:|Respondent's agreement with a private law firm to pay it $500,000 if it successfully nullified Respondent's lease with Complainant did not violate Grant Assurance 25 (Revenue Diversion). "The FAA's Policy Concerning the Use of Airport Revenue was not intended to provide a vehicle for a party to challenge the reasonableness of fees paid to private entities for airport-related services provided. Rather it was to ensure that airport sponsors do not use airport revenues to create non-airport related benefits for other governmental activities." (p. 42).
Index Terms:
Unjust economic discrimination|Economic Nondiscrimination (Grant Assurance 22)|Fee and Rental Structure (Grant Assurance 24)|Self-sustainability|Airport Revenues (Grant Assurance 25)|Airport Layout Plan (Grant Assurance 29)|Preserving Rights and Powers (Grant Assurance 5)|Operation and Maintenance (Grant Assurance 19)|Request for Proposal (RFP)|Bids|Corrective Action Plan (CAP)|Demonstrated immediate need|Non-aeronautical use|Revenue diversion|State litigation|Fixed-base operator (FBO) agreement