Airport Business - 38

LEGAL MATTERS
AUTHOR Alison Squiccimarro

Single FBO Airports:
IS THERE AN IMPERMISSIBLE EXCLUSIVE RIGHT?
WHAT CAN YOU DO ABOUT IT?
AIRPORTS THAT are federally obligated, meaning
they received federal grants through the Airport
Improvement Program, are precluded from granting
" a power, privilege, or other right excluding or
debarring another from enjoying or exercising a like
power, privilege or right. " FAA Order 5190.6B, §8.2.
" An exclusive right may be conferred
either by express agreement, by
imposition of unreasonable standards or
requirements or other means. " Id. Often,
airports having only one FBO are
subjected to scrutiny as to whether an
impermissible exclusive right has been
granted by the Airport Sponsor. The
Federal Aviation Administration (FAA),
however, states " [T]he fact that a single
business or enterprise may provide most
of all of the on-airport aeronautical
services is not, in itself, evidence of
an exclusive rights violation. " FAA
Order 5190.6B; See also Robinson Air
Crane, LLC v. Saint Lucie County, FL,
FAA Docket No. 16-18-02 (Director's
Determination, July 19, 2019)(2019 WL
10272358). The purpose of this article is
to assist in evaluating whether an airport
having a single FBO may actually be an

ABOUT THE AUTHOR

ALISON L. SQUICCIMARRO
Alison L. Squiccimarro is an attorney with
the Law Offices of Paul A. Lange, LLC with
offices in New York and Connecticut.
Alison's nationwide practice focuses on
aviation related commercial litigation with
an emphasis on FAA and DOT Regulatory
Issues, Airports, Insurance Coverage and
Employment matters. Additionally, Alison
co-chair's the American Bar Association,
Forum on Air & Space Law's Airports
Committee.

impermissible exclusive right and what
can be done to correct it.
Is there an impermissible exclusive right?
The FAA in Order 5190.6B and
through its Part 16 adjudication process,
more than one entity to provide FBO
provides some guidance on when a
services; AND (2) the airport would
single FBO is permissible and when a
have to reduce the leased space that is
single FBO is likely to be viewed by the
currently being used by the existing
FAA as an impermissible exclusive right.
FBO in order to accommodate a
Whether an impermissible exclusive
second provider. See FAA Order
right exists is determined by the FAA
5190.6B, §8.7.
on a case by case basis. Notwithstanding
The following are examples of
that, looking at FAA Order 5190.6B and
impermissible exclusive rights:
the FAA's published Part 16 decisions * The owner of an airport operating
provides airport operators and tenants
the airport's only FBO but using a
some guidance as to what is permissible
management company to run the
and what is not.
FBO. See Truman Arnold Companies
D/B/A TAC Air v. Chattanooga
The following are examples where
a single FBO airport has not granted an
Metropolitan Airport Authority, FAA
impermissible exclusive right:
Docket No. 16-11-08 (Director's
Determination, October 4, 2013)(2013
* The owner of an airport elects
WL 12244247 at *39)
to provide aeronautical services
exclusively using its own employees * Adopt i n g a nd i mplement i n g
and resources. This is often referred to
minimum standards that only one
as a " proprietary exclusive right. " (See
particular operator can reasonably
FAA Order 5190.6B, §8.5)
and practically meet. See Mansfield
Helif light, Inc. v. City of Burlington,
* Imposing reasonable qualifications
Vermon, FAA Docket No. 16-14-06.
and minimum standards in a nondiscriminatory manner on those who
(Final Agency Determination, June
want to engage in aeronautical services
22, 2018)(2018 WL 9708594)
* Denying a request to a qualified party * Imposing significant burdens on a
seeking to provide FBO services
party seeking to become a competing
FBO that were not imposed on the
where (1) it would be unreasonably
costly, burdensome and impractical for
existing FBO. See Robinson Air

38 \ AIRPORTBUSINESS / DECEMBER 2020



Airport Business

Table of Contents for the Digital Edition of Airport Business

Inside the Fence: Once in a Lifetime
Industry Update
Hindsight is 20/20
Remote Airport Deploys Open Platform Video to Monitor Facilities, Secure Operations, Connect wth Clients
Airport Guru: General Aviation Airports: A National Asset
Mitigating Public Safety Risks – Let's Fly Again!
Contact Tracing and COVID-19 Technology Best Practices
Cover Story: Less Touch, More Travel
Taking to the Sky in 2021
Are We Over Disinfecting Airports?
Airport Security in the Age of COVID
The New Norms of Aviation Catering
Safe and Secure Travel in the Age of COVID
Legal Matters: Single FBO Airports: Is There an Impermissible Exclusive Right? What Can You Do About It?
Product Profile: A Customizable Fueling Experience
Airport Business - 1
Airport Business - 2
Airport Business - 3
Airport Business - 4
Airport Business - Inside the Fence: Once in a Lifetime
Airport Business - Industry Update
Airport Business - 7
Airport Business - 8
Airport Business - 9
Airport Business - Hindsight is 20/20
Airport Business - 11
Airport Business - Remote Airport Deploys Open Platform Video to Monitor Facilities, Secure Operations, Connect wth Clients
Airport Business - 13
Airport Business - Airport Guru: General Aviation Airports: A National Asset
Airport Business - 15
Airport Business - Mitigating Public Safety Risks – Let's Fly Again!
Airport Business - 17
Airport Business - Contact Tracing and COVID-19 Technology Best Practices
Airport Business - 19
Airport Business - Cover Story: Less Touch, More Travel
Airport Business - 21
Airport Business - 22
Airport Business - 23
Airport Business - 24
Airport Business - Taking to the Sky in 2021
Airport Business - Are We Over Disinfecting Airports?
Airport Business - 27
Airport Business - Airport Security in the Age of COVID
Airport Business - 29
Airport Business - The New Norms of Aviation Catering
Airport Business - 31
Airport Business - 32
Airport Business - 33
Airport Business - Safe and Secure Travel in the Age of COVID
Airport Business - 35
Airport Business - 36
Airport Business - 37
Airport Business - Legal Matters: Single FBO Airports: Is There an Impermissible Exclusive Right? What Can You Do About It?
Airport Business - 39
Airport Business - Product Profile: A Customizable Fueling Experience
Airport Business - 41
Airport Business - 42
Airport Business - 43
Airport Business - 44
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