Jet 1 Ctr., Inc. v. Naples Airport Auth. -- No. 16-04-03 -- No. FAA-2004-18968

Final Agency Decision (07/15/2005) [Determination No.142].

FAA Docket No:

16-04-03

Author:

Woodward, Woodie, Associate Administrator for Airports

Author Title:

Associate Administrator for Airports

Complainant(s):

Jet 1 Center, Inc.

Respondent(s):

Naples (Fla.) Airport Authority

Airport(s):

Naples Municipal Airport (APF)

Holding:

Affirming Director's Determination of Jan. 4, 2005. See Determination No. 133.

Abstract:

In its original complaint, Complainant, Jet 1 Center, Inc., alleged that Respondent, Naples Airport Authority, operator of the Naples Municipal Airport, violated Grant Assurances 22 and 23 by (1) improperly invoking the exclusive right to sell fuel; (2) preventing Complainant from selling fuel to its subtenants and others after having allowed this practice in the past; (3) revoking and denying Complainant a fueling permit, thereby preventing Complainant from self-fueling its own aircraft; (4) collecting a fuel flowage fee when fuel is transferred from the Respondent to airport tenants; and (5) charging a lower fuel flowage fee to one airport tenant. The Director's Determination found that Respondent was not in violation of Grant Assurance 23, but was in violation of Grant Assurance 22 by charging one airport tenant a lower fuel flowage fee than that charged to the others. Complainant only appealed the Director's use of the concept of the Airport's proprietor's right to hold an exclusive concession on fuel sales at the Airport. The FAA affirmed the Director's Determination.|Proprietary Exclusive Right:|The FAA's airport proprietary exclusive right interpretation is a valid interpretive rule under Section 553(b) of the Administrative Procedure Act. (p. 16).|The FAA's airport proprietary exclusive right interpretation is a valid interpretation of statute, because it arises from two basic concepts: (1) airport owners hold proprietary rights that are not restricted by the exclusive rights prohibitions, and (2) the provisions of 49 U.S.C. ยงยง 40103(e) and 47107(a)(4) are intended to prevent monopolies by airport users. (p. 17).

Index Terms:

Unjust economic discrimination|Economic Nondiscrimination (Grant Assurance 22)|Exclusive Rights (Grant Assurance 23)|Self-fueling|Fuel flowage fees|Proprietary exclusive right|Fixed-base operator (FBO) agreement