The following are examples of scenarios for which the FAA has determined that there is no Exclusive Rights violation of Grant Assurance 23:
- An airport sponsor may exclude an incumbent FBO from participating under a competitive solicitation in order to bring a second FBO onto the airport to create a more competitive environment. See AC No: 150/5190-6 at 1.3(b)(3).
- An airport sponsor’s refusal to permit a single FBO to expand based on the sponsor’s desire to open the airport to competition is not a violation of the Grant Assurances. See AC No: 150/5190-6 at 1.3(b)(3).
- An airport sponsor can deny a prospective aeronautical service provider the right to engage in an on-airport aeronautical activity for reasons of safety and efficiency. The FAA, however, must confirm that a certain aviation activity is unsafe. See AC No: 150/5190-6 at 1.3(a)(1).
- Allowing one FBO to occupy a priority use area within its leasehold while denying a competing FBO use of a comparable priority use area when to do so would infringe upon existing taxi ways. See Platinum Aviation v. Bloomington-Normal Airport Authority, FAA Docket No. 16-06-09 (November 28, 2007).
In conclusion, the existence of only a single FBO at a federally funded airport is not, in and of itself, evidence of an Exclusive Right in violation of Grant Assurance 23. A single FBO is permissible when you have an airport owner exercising its right to a Proprietary Exclusive Right or a lack of qualified competition.
If, however, you have a situation in which the airport sponsor is not engaged in a Proprietary Exclusive Right and is imposing unreasonable restrictions on a potential second FBO (that are not likewise imposed on the sole existing FBO), there may be a violation of Grant Assurance 23. If you believe that there is an Exclusive Right in violation of Grant Assurance 23, you should retain legal counsel to (1) evaluate your remedies under Federal and State Law; and (2) guide you in gathering and preserving evidence to support your claims.
About the Author
Alison L. McKay focuses her practice primarily on employment, litigation, and insurance. Among her more noteworthy matters litigated was the successful defense of an airport fixed base operator from Rehabilitation Act claims.
Alison is a member of NBAA’s Employment Issues Working Group, which was created to address the specialized issues associated with aviation employment. In addition to Alison’s employment practice, she has extensive experience defending multi-district and complex multi-jurisdictional litigation arising from aviation accidents.
Paul A. Lange founded and leads the Law Offices of Paul A. Lange, LLC, with offices in CT and NY.
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