Lexis Cite:
2009 FAA LEXIS 251
Westlaw Cite:
2009 WL 2136622
Author:
Fiertz, Randall S., Director
Complainant(s):
JetAway Aviation, Inc.
Respondent(s):
Montrose County (Colo.) Board of County Commissioners|Montrose County (Colo.) Building Authority
Airport(s):
Montrose Regional Airport (MTJ)
Holding:
Dismissing complaint.
Abstract:
Complainant, JetAway Aviation, alleged that Respondents, the Board of County Commissioners, Montrose County, Colorado, and the Montrose County Building Authority, sponsors of the Montrose Regional Airport, were in violation of Grant Assurances 22 and 23, by allegedly favoring the incumbent FBO in a manner that unreasonably denied JetAway’s aeronautical access to the Airport and granted the incumbent FBO an exclusive right. JetAway leased adjacent off-airport land and facilities to conduct its aeronautical activities through-the-fence. The Director also considered potential violations of Grant Assurances 5 and 29, which were raised only in Complainant’s Reply, but dismissed the complaint on all grounds.|Through-the Fence Agreements:|“Because through-the-fence arrangements can place an encumbrance upon the airport property and reduce the airport's ability to meet its Federal obligations, as a general principal the FAA does not support agreements that grant access to the public landing area by aircraft stored and serviced off-site on adjacent property.” (p. 13)|“The airport sponsor must not discriminate against those aeronautical users within the airport. However, the airport may also charge any fee it sees fit to those outside the airport. In addition, the airport sponsor is entitled to seek recovery of initial and continuing capital and operating costs of providing a public use airfield.” (p. 13)|Complainant’s rights to conduct commercial activities that involve the transit of aircraft 'through-the-fence’ may have been protected by its contractual agreement with the Respondent, but not by the Respondent’s Federal grant assurances. (p. 20)|Right of First Refusal:|Complainant argued that Respondents’ lease agreement with the incumbent FBO contained a right of first refusal that was a violation of Grant Assurance 5. Because the right of first refusal was conditional and would not apply if it were in violation of the grant assurances, the Director decided that it was too speculative to be a violation, but cautioned Respondent that it would be “well advised to negotiate the elimination of the right-of-first refusal provision in its existing leases.” (p. 23).|Grant Assurance 29:|Complainant alleged that Respondents had violated Grant Assurance 29 by constructing an aircraft parking apron and access road for the incumbent FBO that were not shown as existing or proposed improvements on the ALP, and by leasing parcels identified for a new FBO to the incumbent FBO. The Director ruled that deviations from the ALP can be necessary and expected; a typical violation of the grant assurance, rather, “would be more akin to a refusal to cooperate with the FAA on an ongoing planning process, or refusing to mitigate a significant problem arising from an un-planned circumstance at an airport upon a demand from the FAA to do so.” (p. 24). It found that Respondents’ planning “has been consistent with the requirement that airport development be safe, useful and efficient.” (p. 25).|Evidence:|Complainant raised a number of arguments that the Director characterized as “circumstantial evidence in support of its central allegation that the Respondent has leased all parties ‘identified’ for FBO-use to” the incumbent FBO. (p. 31).|Grant Assurance 23:|“The fact that the [Respondents are] not providing a parcel to [Complainant], which in [Complainant]’s opinion, is the most convenient, logical or preferred does not necessarily mean that the [Respondents are] manipulating the Minimum Standards.” (p. 34).|Evidence of high fuel prices alone (especially when many other airports have higher fuel prices) does not demonstrate that an exclusive right has been granted. (p. 35). Likewise, the Respondents had “good reason to attempt to limit legal and financial liability associated with the circumstances of [Complainant]’s site and proposed operation–namely the through-the-fence access point and the Off-Airport Agreement that provide[d Complainant], its tenants, and customers access to the Airport.” (p. 45 (citations omitted)).|Grant Assurance 22:|Complainant could not sustain a claim of unjust economic discrimination under Grant Assurance 22, Economic Nondiscrimination, when it failed to establish that it is similarly-situated to the incumbent FBO; in fact, it hadn’t even alleged that it was. (p. 49).
Index Terms:
Airport Layout Plan (Grant Assurance 29)|Denial of access|Economic Nondiscrimination (Grant Assurance 22)|Evidence|Exclusive Rights (Grant Assurance 23)|Minimum Standards|Order 5190.6[A/B]|Preserving Rights and Powers (Grant Assurance 5)|Right of first refusal|Similarly situated|Through-the-fence