A Federal Grant Assurance Primer Continued from page 37 fast rules. There are 39 different assurances that apply to airport sponsors, but a select group of those matter the most to the relationship between airports and the FBOs and businesses that are based at the airport. This article will take a closer look at those select assurances that have an outsize effect on the relationship with the airport and point out what issues airport-based businesses should watch out for to encourage the appropriate management, funding and operations of their respective airports. OPERATION AND MAINTENANCE (GRANT ASSURANCE #19) Simply put, the airport must be open and available to users, and airport facilities that serve aeronautical users must be in a safe and serviceable condition. There are basic expectations to keeping the airport in a safe and service- able condition—mowing airport grass, conducting regular inspections, timely snow removal, protecting the airport approaches, marking and lighting any hazards and publish- ing appropriate NOTAMS (Notice to Airmen). During severe weather events, such as extreme snowfall and flooding, it is permissible that the airport be temporarily closed. Except for short-duration, temporary events, non- aeronautical activities that interfere with the airport’s primary purpose are not permitted. Any planned activ- ity that temporarily closes the airport for non-aero- nautical purposes must be reviewed by the FAA. Some “special events” that must be reviewed and approved by the FAA in advance are things like concerts, drag races, car and motorcycle shows and trade shows. To protect the approaches means to evaluate, and pre- vent or eliminate obstructions to the runway approaches. Allowing trees to grow too tall, permitting antennas, bill- boards or other structures to be erected, or even allow- ing a waste dump site that attracts birds, are all examples of failing to protect the approaches. Even if the airport sponsor does not own the land that the obstruction is on, the airport sponsor is obligated to enact zoning or other restrictions that prevent obstructions. As a regu- lar course of action, appropriate steps must be taken to protect the approaches, including regular evaluation of obstructions, acquiring land, appropriate zoning of air- space, land use planning and holding public meetings. ECONOMIC NON-DISCRIMINATION (GRANT ASSURANCE #22) Economic Non-Discrimination is the grant assurance that most immediately comes to mind when conflicts arise between airports and airport-based businesses—with good reason, because compliance with this grant assur- ance greatly affects FBOs and aeronautical businesses. Reasonable Terms and Without Unjust Discrimination The starting point is paragraph (a), which requires that airports be available on (i) reasonable terms to (ii) all types, kinds and classes of aeronautical uses, (iii) without unjust discrimination. Conflicts often occur because the term “reasonable” is not defined. Rather it is a matter of judgment. The FAA is loath to make a judg- ment call on whether particular terms and conditions are “reasonable” and will generally defer to an airport’s judgment, as long as a rational analysis appears to exist. However, it is not unreasonable for an FBO to expect a consideration of supply and demand at the particular airport and a comparison to similar airports in the region, if they exist. Also, any minimum terms must be perti- nent to the airport’s unique operational structure and to the desired level of service. A good example of a reason- able term is an insurance minimum that is appropriate to the type of aircraft that use the airport. An excessively high insurance minimum, that has no apparent connec- tion to the operations or aircraft, would be unreasonable. Differences in fees, rates or charges are not always actionable or “unjustly discriminatory.” Differences in fees and charges can be justified; for instance, on the basis of volume, or differences in the location on the airport. However, an example of an unreasonable term would be much higher landing fees for rotor-craft versus fixed-wing aircraft in an attempt to reduce rotor-craft operations. If an airport elects to deny access to a particular type of aeronautical activity, for instance gliders, parachut- ing or helicopters, then it must have compelling and proven safety rationale for doing so. “Concerns” about safety are not enough and it is the FAA, not the air- port sponsor, that is the final arbiter as to safety. In most cases, the FAA has not agreed that genuine safety issues existed at general aviation airports that have attempted to ban these types of aeronautical activities. 38 Aviation Business Journal | 2nd Quarter 2018
