Evergreen Int’l Airlines, Inc. v. Port Auth. of N.Y. & N.J.-249

FAA Docket No:

16-10-04

Author:

Fiertz, Randall S., Director

Author Title:

Director

Complainant(s):

Evergreen International Airlines, Inc.

Respondent(s):

Port Authority of New York and New Jersey

Airport(s):

John F. Kennedy International Airport (JFK)

Holding:

Dismissing complaint.

Abstract:

Complainant, Evergreen International Airlines, Inc., a cargo airline operating at the Airport, received ground and cargo handling services from its sister company Evergreen Aviation Ground Logistics Enterprise (EAGLE). Respondent, the Port Authority of New York and New Jersey, charged the Complainant’s sister company fees based on its gross receipts because it offered ground handling services to other airlines. Complainant alleged Respondent violated Grant Assurances 22 and 23 by engaging in disparate treatment of similarly situated aeronautical service providers with regard to ground handling practices and placed an unreasonable restriction on self-servicing. The Director dismissed all allegations.|Standing:|The Director found Complainant had standing to raise claims. Although Complainant’s sister company paid the allegedly improper fees to the Respondent, the “practice of a ground handling company passing on the cost of the fee to their customer is common. The end result [was that] the Complainant [was] ultimately responsible for the payment. . . . In addition, the Complainant’s claim that it [was] not being permitted to self-handle is direct and substantial.” (p. 19).|Grant Assurance 22(e) – Similarly Situated:|The Director found that Complainant was not similarly situated to other cargo operators at the Airport; no other operators utilize the same business model as the Complainant. Those airlines that used their own employees to self-serve were not subject to fees. When the Port Authority offered the same opportunity to the Complainant by proposing that Complainant become the direct employer of those employees who service its cargo, the Complainant did not amend its employees’ status. (p. 26).|The Director further found that Respondent offered and applied uniformly identical terms and conditions to all airlines operating under the same type of permit as Complainant. Complainant’s chosen business model obligated it to pay the gross receipt fees. (p. 26).|Grant Assurance 22(d) – Self-Service of Aircraft:|Grant Assurance 22(d) is clear that an air carrier has the right to self-serve. FAA interprets the right to self-service as prohibiting the establishment of any unreasonable restriction on the owners or operators of aircraft regarding the servicing of their own aircraft and equipment. (p. 27).|Respondent did not violate Grant Assurance 22(d) by charging Complainant’s sister company a fee for providing ground handling services. Complainant and Complainant’s sister company were two separate companies; as such, the service was not protected under Grant Assurance 22(d). The right to self-service only extends to servicing one’s own aircraft and equipment. (p. 27).|Grant Assurance 23 – Exclusive Right:|Respondent was found not to have granted an exclusive right when Complainant had not established that it was similarly situated to any other cargo carrier that self-handles. (pp. 30-32).

Index Terms:

Evergreen Int'l Airlines, Inc. v. Port Auth. of N.Y. & N.J. -- No. 16-10-04 -- No. FAA-2011-1282