NATA recommendations to FAA's proposed rewrite of Advisory Circular on minimum standards
Special to Airport Business: Subcommittee Report, NATA Airports Committee
To: Manager, Airport Compliance Division Office of Airport Safety and Standards (AAS-400) Federal Aviation Administration
RE: Comments on the FAA Draft Advisory Circular XX, Exclusive Rights and Minimum Standards for Commercial Aeronautical Activities and Services
NATA offers the following (excerpted) comments to the Draft Advisory Circular (AC) for consideration. The comments specify the section from the FAA Draft AC and the NATA recommendation.
Section 1.2, paragraph 4. The owner of a public-use airport (public or private owner) may elect to provide any or all of the aeronautical services needed by the public at the airport. In fact, the statutory prohibition against exclusive rights does not apply to these owners and they may exercise but not grant the exclusive right to conduct any aeronautical activity. However, these owners must engage in such activities as principals using their own employees and resources. An independent commercial enterprise that has been designated as agent of the owner may not exercise nor be granted an exclusive right.
The FAA must explain its policy on contracting management duties and its effect on proprietary exclusive services.
Section 1.3b, paragraph 1: b. Space Limitation. A single enterprise may expand as needed, even if its growth ultimately results in the complete occupancy of all space available. However, an exclusive rights violation occurs when an airport sponsor unreasonably excludes a qualified applicant from engaging in an on-airport aeronautical activity without just cause. An exclusive rights violation can be effected through the use of leases where, for example, all the available airport land or facilities suitable for aeronautical activities are leased to a single user. A lease that confers an exclusive rights agreement will be construed as having the intent to do so and, therefore, be in violation of FAA policy.
The FAA should clarify that an airport will not be in violation if an FBO has an existing long-term lease for the only property appropriate for FBO activities and a new FBO wants to conduct aeronautical activities through the fence.
Section 1.3b, paragraph 2. Airport sponsors may be better served by requiring that leases to a single user be limited to the amount of land the user can demonstrate is actually needed and can be put to immediate use. In the event that additional space is required later, the incumbent should be required to compete along with all other qualified bidders for the available land. The grant of options or preferences on future sites to a single incumbent will also be construed as the intent to grant an exclusive right.
The term "immediate use" should provide for an opportunity by an aviation business to implement a phased-in plan within a five-year time period.
Section 1.3d, paragraph 1-3: d. Restrictions on Self-Service. An aircraft owner, who is entitled to use the landing area of an airport, may tie-down, adjust, repair, refuel, clean, and otherwise service his/her own aircraft, provided the service is performed by the aircraft owner or his/her employees with resources supplied by the aircraft owner. Moreover, the service must be conducted in accordance with reasonable rules or standards established by the sponsor. Any unreasonable restriction imposed on the owners or operators of aircraft regarding the servicing of their own aircraft will be construed as a violation of this policy.
The FAA should clarify that aircraft management companies are permitted to maintain the aircraft under contract provided the management company is meeting the airport's minimum standards.
Section 2.8b, paragraph 1. When specialized aviation service operations (SASO), sometimes known as single service operators or special fixed base operators (FBO), apply to do business on an airport, difficulties can arise if the airport sponsor requires that all businesses on the airport comply with all provisions of the published minimum standards. This is not to say that all SASOs providing the same or similar services should not equally comply to all applicable minimum standards; however, an airport should not, without adequate justification, require that an operator desiring to provide a single service also meet the criteria for a full-service FBO. An airport sponsor should develop reasonable, relevant, and applicable standards for each type and class of service. Examples of these specialized services may include aircraft flying clubs, flight training, aircraft airframe and powerplant repair/maintenance, aircraft charter, air taxi or air ambulance, aircraft sales, avionics, instrument or propeller services or other specialized commercial flight support businesses.
The FAA must recognize that the industry may not readily accept the SASO term. While NATA does not object to its use, the agency must ensure incumbent operators are not treated unfairly by new SASO operations subverting existing leases and minimum standards. The agency should not include flying clubs because these entities by definition are not for profit.
Other Select NATA Comments
• The FAA should discourage the allowance of through-the-fence operators unless an appropriate agreement, including fees on services and standards for service, is implemented.
• It is highly recommended that the airport have a regularly scheduled [minimum standards] update (e.g., every 3 years) to avoid the appearance of changing a standard after receiving a lease application.
• Specific language on training requirements on aircraft fueling procedures and training on the monitoring of fuel quality should be included. Typically, this training would not be the airport sponsor's responsibility but that of the fueling operator.
• The FAA should provide recommendations or guidance on the enforcement of Minimum Standards by the airport sponsor. This could include implementing the standards through local ordinance, setting procedures for penalties to be imposed on violators of the minimum standards.