FAA Docket No:
16-98-05|13-94-25|13-95-03
Lexis Cite:
1998 FAA LEXIS 1131
Westlaw Cite:
1998 WL 1083382
Author:
Bennett, David L., Director
Complainant(s):
Centennial Express Airlines|Golden Eagle Charters|Kehmeier, Thomas
Respondent(s):
Arapahoe County (Colo.) Public Airport Authority
Airport(s):
Centennial Airport (APA)
History:
Affirmed by Initial Decision of the Hearing Officer Pursuant to 14 C.F.R. § 16.241 on Dec. 23, 1998. See Determination No. 44. Also affirmed by Final Agency Decision and Order of Feb. 18, 1999. See Determination No. 46.
Holding:
Finding violation.
Abstract:
Complainants, Centennial Express Airlines and individual Thomas Kehmeier, filed a complaint against Respondent, Arapahoe County Public Airport Authority, owner and operator of the Centennial Airport, alleging that by prohibiting scheduled passenger service at Centennial Airport, under FAR Part 135, Respondent violated Grant Assurances 22 and 23. The Director found Respondent in violation of these Grant Assurances.|Unjust Economic Discrimination (Grant Assurance 22):|Respondent's ban on scheduled Part 135 service, while permitting unscheduled Part 135 air taxi and charter operations, unjustly discriminated against Complainants where Respondent failed to provide any evidence that scheduled service would result in adverse safety, efficiency, or environmental effects. (p. 19)|Respondent could not justify its ban on scheduled Part 135 service on the basis of safety concerns where (1) Respondent permitted operation of the same aircraft in nonscheduled commercial service, (2) the ban on scheduled operations did not limit total operations at the Airport, and (3) all operations at the Airport were conducted by pilots tested and licensed by the FAA, used aircraft certificated by the FAA for airworthiness, followed FAA operating rules, and followed the direction of FAA air traffic controllers. (p. 20).|"[A] limit on the number of operations at an airport for reasons of congestion is an extraordinary measure that has been adopted and upheld at only a very small number of airports in the U.S." (p. 20).|Respondent could not justify its ban on scheduled Part 135 service on the basis of congestion where it could not show that existing levels of service had resulted in congestion. (p. 20).|Respondent could not justify its ban on scheduled Part 135 service on the basis of environmental effects where it could not show that (1) a noise or other environmental problem actually existed; and (2) the restriction in question was rationally related to the problem. (p. 20).|The assurance permitting a sponsor to limit aeronautical use to serve the public's civil aviation needs did not apply where Complainant's scheduled service did not interfere with the Airport's function as a reliever airport. (p. 21).|The FAA Chief Counsel has determined that a carrier may not be denied access to an airport solely based on the non-availability of currently existing facilities and that some arrangements for accommodation must be made if reasonably possible. (p. 22).|The designation as "reliever airport" was not a reasonable basis for banning scheduled Part 135 operations where the claim that commuter operations will fundamentally alter the Airport's character was speculative and unsupported. (p. 23).|"A sponsor is not free, once Federal funds have been used to support is infrastructure needs, under the grant assurances, to bar service at the airport just because local preferences change. . . . The owner must be in a position to assure that all classes of aeronautical needs can be fully accommodated within the system of airports under the sponsor's control and without unreasonable penalties to any class and that the restriction is fully supportable as being beneficial to overall aviation system capacity." (p. 24).|Potential economic harm to another airport would never justify an access restriction under the grant assurance that requires the airport to be accessible to all categories of aeronautical users on reasonable terms, except, possibly, in the limited circumstances of a single operator of a multiple airport system. (p. 25).|Exclusive Rights (Grant Assurance 23):|By granting unscheduled operators the right to provide aeronautical services while excluding scheduled operators, Respondent granted a prohibited exclusive right to conduct air carrier operations to on-demand air taxi operators. (p. 26).|Where Respondent delayed acting on Complainant's request for minimum standards under which it could operate and then adopted a moratorium on accepting new applications for scheduled service operations, Respondent effectively granted an exclusive right in violation of Grant Assurance 23. (p. 27).|Federal Preemption of Scheduled Service Ban:|Respondent's ban on scheduled service amounted to a prohibited local government regulation of rates, routes and service within the meaning of 49 U.S.C. § 41713(b) and does not fall within the scope of the proprietor's exemption because it was not reasonable, non-arbitrary or non-discriminatory. (p. 28).
Index Terms:
Unjust economic discrimination|Economic Nondiscrimination (Grant Assurance 22)|Exclusive Rights (Grant Assurance 23)|Preemption|Airline Deregulation Act|Safety|Denial of access|Delay by airport sponsor