Aero Ways, Inc. v. Del. River & Bay Auth.-217 – ACRP Legal Research Digest 21

FAA Docket No:

16-09-12

Lexis Cite:

2010 FAA LEXIS 233

Westlaw Cite:

2010 WL 3826304

Author:

Fiertz, Randall S., Director

Author Title:

Director

Complainant(s):

Aero Ways, Inc.

Respondent(s):

Delaware River & Bay Authority

Airport(s):

New Castle Airport (ILG)

Holding:

Dismissing complaint.

Abstract:

Complainant, Aero Ways, Inc. an aircraft management service provider, entered into discussions with Respondent, Delaware River & Bay Authority, the operator of New Castle Airport, for fueling rights for Complainant’s customers and the general public. After Respondent revised the Airport Minimum Standards, Complainant became an authorized FBO. Complainant then filed a Complaint alleging violations of Grant Assurance 22(a), (d), (f), and (h) concerning self-fueling rights, the terms of use of the Airport, and the substance and application of the Airport Minimum Standards. Complainant also alleged violations of FAA Order 5190.6A. The Director’s Determination found that Respondent was not in violation of its federal obligations and dismissed the complaint.|Order 5190.6A/B:|Allegations of Order 5190.6A/B will only be used to show a violation of a grant assurance. “While the Order is useful in helping airport sponsors interpret their obligations under the FAA’s Airport Compliance Program, it is not controlling with regard to airport sponsor conduct.” (p. 21).|Burden of Proof:|“The burden of proof falls upon the Complainant to establish and substantiate each allegation made . . . Simply submitting voluminous pages of documents does not necessarily guarantee that the Complainant will meet this burden.” (p. 15).|Self-Fueling:|Respondent did not violate Grant Assurance 22 when it denied Complainant’s request for self-fueling rights because Complainant was seeking the right to fuel the aircraft of its customers. The record contained no evidence showing that Complainant was an air carrier, aircraft lessee, or aircraft owner. “The FAA has held that airport sponsors are not required to permit aeronautical users to self-fuel aircraft they do not own.” (p. 16).|Grant Assurance 22:|Respondent acted within its proprietary rights and did not violate Grant Assurance 22(a) when it prohibited Complainant from using a gate to access the Airport after Complainant damaged the card reader at the gate. The Director also found that Complainant had not met its burden of proof in alleging discriminatory treatment as it provided no evidence to show the Respondent sanctioned another similarly-situated tenant less severely for violating the Airport’s Rules and Regulations. (p. 22).|Complainant’s allegation that Respondent failed to erect additional signage or lease additional land was dismissed because the record provided no evidence that Complainant followed up on Respondent’s offer to continue negotiations of the issues and because Complainant owed Respondent past due rent and fees. “[A] tenant’s history and relationship with the airport sponsor matter . . . [and t]he airport sponsor is well within its rights as an airport proprietor to deny additional property and services until the Complainant is current on its rents and fees.” (pp. 27-28).|Although the difference between self-fueling and retail sales in the Respondent’s Minimum Standards adopted in 2000 were vague and lacked clarity, the Director declined to make a finding because the Respondent “took steps to address and correct these shortcomings when it adopted new Minimum Standards . . . in 2005.” (p. 33).|Allegations of unjust discrimination were dismissed when Complainant was found not to be similarly situated to the other tenants. Complainant was seeking to fuel the aircraft of its customers, which is not protected under the grant assurances, whereas the other tenants were air carriers who have a right to self-fuel. (p. 41).|Denial of Access:|Respondent did not constructively deny access when it deferred considering Complainants self-fueling request for approximately six months, particularly when the time period it took for Complainant to execute and return documents was the same or longer. (p. 38).

Index Terms:

Aero Ways, Inc. v. Del. River & Bay Auth. -- No. 16-09-12 -- No. FAA-2010-0079