Executive Air Taxi Corp. v. City of Bismarck, N.D. -- No. 13-91-05|13-92-04

Record of Decision (06/29/1993) [Determination No.5].

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FAA Docket No:

13-91-05|13-92-04

Author:

Mudd, Leonard E., Director

Author Title:

Director

Complainant(s):

Executive Air Taxi Corp.

Respondent(s):

Bismarck (N.D.)

Airport(s):

Bismarck Municipal Airport (BIS)

Holding:

Dismissing complaint.

Abstract:

Complainant, Executive Air Taxi Corp., filed a complaint against Respondent, the City of Bismarck, owner and operator of Bismarck Municipal Airport, alleging that Respondent violated federal law and Grant Assurances 22 and 23 by (1) refusing to lease Complainant its preferred site; (2) regulating the services that Complainant must and may provide; (3) prohibiting self-fueling; and (4) imposing fuel flowage fees and other restrictions on Complainant that it did not impose on itself. The Director found Respondent not in violation of the Grant Assurances and dismissed the Complaint.|Economic Nondiscrimination (Grant Assurance 22):|Respondent did not unjustly discriminate against Complainant in violation of Grant Assurance 22 by refusing to lease Complainant a parcel it desired to develop where Respondent's decision appeared to have been based on the inadequacy of the site to accommodate any commercial aeronautical activity and not the possibility of a competitor needing the area in the future. (p. 15).|Respondent did not unjustly discriminate against Complainant in violation of Grant Assurance 22 by requiring Complainant to provide multiple aeronautical services where Respondent applied the Minimum Standards in effect when Complainant entered into its original lease and Respondent applied the same Minimum Standards to other tenants that entered into leases contemporaneously with Complainant. The fact that the Minimum Standards were subsequently changed to no longer require multiple services did not make Complainant's requirement unjustly discriminatory. (p. 17).|"As a practical matter, an airport sponsor may quite properly adjust the airport's minimum standards to reflect the changing needs of the public and to accommodate changes in the level of commercial aeronautical services available at the airport. Such changes in minimum standards for commercial aeronautical activities, whether prescribed in leases or in airport regulations, are not inconsistent with an airport sponsor's Federal obligations." (p. 17).|Respondent did not unjustly discriminate against Complainant in violation of Grant Assurance 22 by imposing restrictions on Complainant's fueling operations that it did not impose on itself where the reason for the different standards was that Complainant's facility was built later than Respondent's facility and was subject to fire and building codes to which Respondent was not subject. (p. 19).|"Fuel flowage fees are a generally accepted method for recovering the cost of providing airport facilities, since fuel consumption is often regarded as a measure of relative usage or benefit derived from the availability of the public landing area." (p. 20).|The fuel flowage fee charged to Complainant was not unjustly discriminatory in violation of Grant Assurance 22 where the fuel flowage fees at the Airport appeared to be applied fairly and the amount of revenues being collected from all sources on the Airport did not appear to be in excess of the needs for sustaining the airport operation. (p. 22).|Self-fueling:|"A requirement that aircraft owners obtain a self-fueling permit from the city as a prerequisite for exercising their right to fuel their own aircraft is neither unreasonable nor inconsistent with FAA policy." (p. 18).|Complainant was not unreasonably denied the right to self-fuel where there was no evidence that Complainant had asked for and been denied a permit to do so. (p. 18).|Exclusive Rights (Grant Assurance 23):|Respondent offering a volume discount for into-plane fueling service did not grant an exclusive right in violation of Grant Assurance 23 by inhibiting competition. "Volume discounts to aviation fuel purchasers are not inconsistent with the city's Federal grant agreements." (p. 22).|Federal grant assurances do not require a sponsor to permit rapid or "hot" refueling and a sponsor may adopt reasonable rules and regulations applicable to this type of operation. (p. 24).|Respondent did not grant an exclusive right in violation of Grant Assurance 23 by not enforcing its prohibition on hot refueling in the past when Respondent's employees were performing the service but enforcing it later when Complainant was performing the service. Respondent had the right to begin enforcing the ordinance as long as it did so fairly. (p. 24).|Air Taxi:|Respondent's application of its airport Minimum Standards to Complainant's air taxi activities was not preempted by Section of 105(a) of the FAA Act. (p. 24).

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