Airport Business - 39

LEGAL MATTERS
Crane, LLC v. Saint Lucie County, FL,
FAA Docket No. 16-18-02(Director's
Determination, July 19, 2019)(2019
WL 10272358)(citing Pompano Beach
v. FAA, 11 A F2d 1529. 1532, 1544
(11 Cir, 1985)
* Providing a single service provider
with land and/or facilities that cannot
be put to gainful aeronautical use
within a reasonable period of time.
See FAA Order 5190.6B, §8.7b
* An express agreement or commitment
to provide the FBO with an exclusive
right. See FAA Order 5190.6B, §8.2
and Robinson Air Crane, LLC v. Saint
Lucie County, Fl, FAA Docket No.
16-18-02 (Director's Determination,
July 19, 2019)(2019 WL 10272358).

What can be done to
correct an impermissible exclusive right?
If you believe that an airport having a
single FBO is actually an impermissible
exclusive right, what can you do to
seek to correct it? The FAA has two
remedies available. The remedies
are to either file informal complaint
pursuant to 14 CFR Part 13 or a formal
complaint pursuant to 14 CFR Part
16. Before you exercise either of those
remedies, however, we recommend the
following: (1) verifying that you have
standing to assert a claim; (2) gathering
evidence to support your claim that
there is an impermissible exclusive
right; and (3) trying to resolve the
matter with the airport sponsor.
What does it mean to have
standing? Legally speaking, standing
means, that you are harmed and/or
have a material interest in the matter
at hand. If you are trying to start up
an FBO at the airport and have been
denied the opportunity, you likely have
standing. If you are a pilot and user of
the airport and can demonstrate that
the exclusive right is causing you harm
you also likely have standing.
Assuming that you have standing,
the next step is to gather relevant
information concerning the potential
exclusive rights violation. The relevant
information includes: (1) the lease
with the single FBO, (2) applicable
minimum standards, (3) emails and
correspondence between the airport
and parties wanting to become an

FBO at the airport, (4) the airport
sponsor's internal emails, memos
and correspondence discussing the
minimum standards, the potential
for a second FBO, and competition at
the airport; and (5) communications
between the airport sponsor and the
existing FBO discussing the potential
for a second FBO. You can gather
evidence by submitting a public
records request, sometimes referred to
as a freedom of information request,
to the airport sponsor. Before making
your request, familiarize yourself with
your state's freedom of information law
and the process for submitting a request.
State law generally dictates the time
that the airport sponsor has to respond
to the request and also what they can
charge you for producing the requested
materials.
Once you've collected the relevant
materials, review them and confirm
that they support your working
hypothesis that there is an exclusive
rights violation. Assuming that they
support your hypothesis, reach out
to the airport sponsor and express
your concern about the impermissible
exclusive rights. Send the airport
manager and/or airport commission
a detailed email or letter expressing
your concern and request a meeting
to discuss. Starting a dialogue with the
airport sponsor serves several purposes.
First, it is an informal way of attempting
a resolution. Perhaps, when presented
with the evidence, the airport sponsor
will be persuaded, and the discussion
leads to the airport correcting the
exclusive rights violation in a manner
that is agreeable to you. Second, even if
you are not able to resolve the exclusive
rights violation, the dialogue may
generate additional relevant evidence to
support your assertion that an exclusive
rights violation exists. Lastly and most
importantly, the FAA requires an
attempt to resolve the issue with the
airport sponsor before you can proceed
with a Part 16 Complaint. Even if you
are going to proceed with a Part 13
Informal Complaint, the FAA will
still want to see that you attempted a
resolution before bringing the issue to
their attention.
If the exclusive rights violation
continues to exist after your attempt

at resolution, you may elect to bring
the matter to the FAA's attention. This
can be done informally through a Part
13 Informal Complaint or formally
through a Part 16 Complaint. We often
recommend that a party proceed with
a Part 13 Informal Complaint because
they provide an opportunity for the
FAA to weigh in on the matter quickly.
Whereas, the Part 16 Complaint
requires formal briefing and it will
likely take years for the FAA to decide
whether a violation exists.
The FAA does accept Part 13
Informal Complaints either orally or
written. We recommend, however, that
Part 13 Informal Complaints be made
in writing via letter or email to the
Compliance Program Manager in the
FAA's Regional Office serving the area
where the airport is located. By placing
your complaint in writing you have
the opportunity to provide the FAA
with the evidence that supports your
position. Upon receipt of the Part 13
Informal Complaint, the Compliance
Program Manager will acknowledge
your Informal Complaint and forward
it to the airport sponsor and request a
statement of their position with respect
to your Complaint. The FAA usually
will provide the airport sponsor with
at least 30 days to respond. Thereafter,
the FAA will review the materials and
usually tries to work with the parties
to determine where the matter can
be resolved through a compromise
or settlement. If the FAA is unable to
facilitate a resolution, they will issue
a preliminary determination. If the
preliminary determination finds an
exclusive rights violation exists or may
exist, it will request a corrective action
plan from the airport sponsor.
It is important to note, the airport
may develop a corrective action plan
that is accepted by the FAA that does
not resolve the matter in the way you
envisioned. Thus, you should keep
that in mind during the multiple
opportunities that you have along the
way to resolve the matter informally.
It is usually during those opportunities
that you as the aggrieved party have
the greatest leverage to bring about
a resolution that is most desirable to
you. 

DECEMBER 2020 \ AVIATIONPROS.COM / 39


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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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