Author:
Bennett, David L., Director
Complainant(s):
Platinum Aviation, LLC|Platinum Jet Center BMI, LLC
Respondent(s):
Bloomington-Normal (Ill.) Airport Authority
Airport(s):
Central Illinois Regional Airport (BMI)
History:
Affirmed by Final Decision and Order of Nov. 28, 2007. See Determination No. 185.
Holding:
Dismissing complaint.
Abstract:
Complainant, Platinum Aviation and Platinum Jet Center BMI, filed a complaint against Respondent, Bloomington-Normal Airport Authority, owner and operator of the Central Illinois Regional Airport in Bloomington, Illinois, alleging that Respondent was in violation of Grant Assurances 22, 23, 38, and potentially 5 by its actions with respect to Complainant's FBO operation and the three agreements between the parties: the Ground Lease Agreement, the Agreement Authorizing Services, and the Agreement Authorizing the Sale of Aviation Fuel. The Director found Respondent not in violation and dismissed the Complaint.|Effects of State Court Litigation:|FAA rejected all arguments by both parties insofar as those arguments suggested that "a finding by the State court in any way would limit the FAA's ability and responsibility to adjudicate grant assurance matters." (p. 18).|The fact that the state court found the agreements between Complainant and Respondent to be valid and enforceable did not automatically justify Complainant's resistance to Respondent's efforts to modify the agreements, because a contract that is valid under state law may still be in violation of applicable federal obligations. (p. 18).|Jurisdiction:|Respondent's motion to dismiss on the basis that Complainant had submitted insufficient evidence to support some of its claims and that some claims were improperly before the FAA was rejected, because (1) it is the FAA's responsibility to determine whether claims should be investigated; (2) Complainant's allegations were valid claims and the record contained information on them; (3) the fact that there was a state court proceeding or decision did not override the FAA's responsibility to adjudicate applicable federal grant assurances; and (4) although there may have been some claims based on matters that had been resolved, the FAA would review those allegations that were not resolved. (pp. 19-20).|Pre-complaint Resolution:|Complainant satisfied its burden under 14 C.F.R. § 16.21 to show that it negotiated in good faith to resolve this matter where the record showed that "there were extensive communications between Complainant and the BNAA as the two sides attempted to work out their differences over a long period of time." (p. 22).|Validity of the Agreements:|Although in some circumstances a lease option for land may confer or be construed as intending to confer an exclusive right, in this case the lease provision which granted Complainant an option to lease additional property was not a violation of Grant Assurance 23, because the option “was limited to 3 years, in a parcel adjacent to Complainant’s premises and there appears to be ample room on the Airport for other hangar and facilities should the future aeronautical demand require it.” (p. 27).|The fact that Complainant’s competitor had a larger parking area than Complainant had was not a violation of grant assurances where the entities were not similarly situated – the competitor had an existing lease while Complainant had a lease which failed to clearly identify the lease premises, and their respective use of the aircraft ramp was dissimilar, in that Complainant was interfering with movement areas and taxiway usage while its competitor was not. (p. 32).|Complainant’s lease provision providing a priority use area which, as interpreted by Complainant, allowed it to interfere with movement areas and taxiways was inconsistent with Respondent’s grant assurance obligations. FBOs may not be given the power to shut down active taxiways. Such a grant of authority violates grant assurances, including Grant Assurance 5, 19, 23 and 29. (p. 33).|A provision in Complainant’s Agreement Authorizing Services which states that Respondent may grant a limited exclusivity for aviation fuel sales violated Grant Assurance 23 because it granted an exclusive right even though it limited its action to a certain number of gallons (3,000,000). (p. 40).|Economic Nondiscrimination (Grant Assurance 22):|Respondent did not violate Grant Assurance 22 by seeking to amend its agreements with Complainant, because several terms and conditions in the Agreements were inconsistent or had the potential to be inconsistent with Respondent’s federal obligations and therefore actions by Respondent to correct them were not unreasonable and were, in fact, inherently consistent with its federal grant assurances. (p. 42).|Respondent’s issuance of a Stop Work Order directing Complainant to cease construction on its facility until its agreements with Respondent were brought into compliance with grant assurances was reasonable and therefore consistent with Grant Assurance 22, because there were real problems with the agreements. (p. 45).|Complainant’s claims that Respondent’s actions had not provided reasonable access to the Airport were rejected as moot, because Complainant’s facility was finished and operational and FAA does not address issues of past noncompliance. (p. 46).|Respondent’s issuance of a Stop Work Order directing Complainant to cease construction on its facility until it completed a CATEX evaluation was reasonable and therefore consistent with Grant Assurance 22, because the CATEX evaluation is a requirement under federal law. (p. 47).|The fact that Respondent did not agree with Complainant’s requests for financial compensation in exchange for reforming the agreements or that it did not provide acceptable alternative language and refused to accept the negative impact of certain lease provisions on the operation of the Airport did not signify noncompliance with grant assurances. (p. 50).|“In order to make a finding of unjust discrimination in this case, Complainant has to provide persuasive evidence that a similarly situated user based at the Airport or one wanting to provide the same service Complainant is proposing received preferential treatment vis-à-vis the Complainant.” (p. 51).|Respondent did not violate Grant Assurance 22 by showing preferential treatment toward Complainant’s competitor, Image Air, where the issues in dispute in this case were not present in the Image Air agreement – there was no option property, no priority use area cutting across movement areas and taxiways, and Respondent had not granted Image Air an exclusive right for fueling. (p. 51).|Exclusive Rights (Grant Assurance 23):|Respondent did not grant Complainant’s competitor, Image Air, an exclusive right by extending its lease, where there was no evidence that Image Air had a monopoly and, in fact, Respondent issued an RFP to obtain a second FBO, selected Complainant, granted Complainant a long-term lease for Airport land on which to build a hangar and the hangar was complete and operational. (p. 53).|Hangar Construction (Grant Assurance 38):|Respondent did not violate Grant Assurance 38 by attempting to deprive Complainant of a long-term agreement to build a hangar where Respondent issued an RFP to obtain a second FBO, selected Complainant, granted Complainant a long-term lease for Airport land on which to build a hangar and the hangar was complete and operational. (p. 54).|Preserving Rights and Powers (Grant Assurance 5):|Respondent did not violate Grant Assurance 5 by attempting to amend the agreements with Complainant in order to bring them into compliance with grant assurances. In fact, such action was consistent with Grant Assurance 5. (p. 55).
Index Terms:
Economic Nondiscrimination (Grant Assurance 22)|Exclusive Rights (Grant Assurance 23)|Hangar Construction (Grant Assurance 38)|Preserving Rights and Powers (Grant Assurance 5)|Unjust economic discrimination|Jurisdiction - Part 16|State litigation|Pre-complaint resolution|Options|Similarly situated|Remedied past violations|Fixed-base operator (FBO) agreement