minimum standards principles. There may also be a require- ment that the airport itself be a named insured on the policy. As long as this is equally required of on-airport service providers, it would be considered a reasonable requirement. Practically-speaking, it is generally easy for OEMs and most repair stations to comply with these requests, although it requires some planning ahead to get the necessary paper- work in place. If the premium is a financial hardship to independent mechanics or small businesses, one recourse is to challenge the airport on whether the amount is reasonable given the scope of the activity. Indemnification: Airports commonly require that inde- pendent service providers agree to indemnify the airport in case accidents, damages, or lawsuits that may arise from any activity of the provider on the airport (not limited to the pro- vider’s actions or negligence). As long as there is reasonable- ness and equal treatment to similar aeronautical businesses at the airport, this requirement would be reasonable. Fees and Charges: The biggest issue for most indepen- dent service providers is whether or not the airport charges in exchange for access to the airport. Fees generally come in two types—an annual license fee and a percentage of rev- enues. To comply with the FAA’s grant assurance, the fees must be reasonable in comparison to similar aeronautical activities. But in practice, independent service providers are not similarly-situated to on-airport providers; so it is chal- lenging to determine reasonableness. From the viewpoint of an OEM or repair station, the advisable approach is to emphasize to the airport that the services it provides are aeronautical activities that are necessary to keep the aircraft in operation, but are limited in scope and time. Consequently, there is little-to-no lost revenue to the airport. This approach may help limit the provider’s exposure to fees. From the viewpoint of an independent mechanic or small maintenance business (even if the airport charges are deemed reasonable), it may still be enough to deter them from providing the services. Whether this is good or bad, it is simply a fact of the FAA grant assurances and guidance. Security Considerations: One other important con- sideration is the aircraft’s physical location on the airport. Will the maintenance provider be working in the aircraft owner’s private hangar, an FBO’s joint-use hangar, or at another airport location? Is it an airport with security access controls? How will this be dealt with? How will the indepen- dent service provider gain access to the location? Airports with the highest degree of security controls are those with scheduled airline service. Both FAA and TSA regulations are involved and—even for airport-based opera- tors—they are often difficult to navigate. At these airports, gaining access to the aircraft may involve advance planning and the cooperation of the hangar owner and customer. The airport will generally take the position that granting access is not within their authority. Gaining access at such a con- trolled airport will generally require that the independent service provider be escorted and constantly kept under the surveillance of the aircraft owner with the security badge and clearance at the airport. Even at airports with fewer security controls, the cus- tomer who is requesting the work should assist the indepen- dent maintenance provider in understanding and complying with the airport’s local security requirements in advance. CONCLUSION The starting point of consideration regarding airport access for independent service providers is ensuring that the federally-obligated airport is complying with the grant assurances—specifically, exclusive rights and economic non- discrimination. From there, the next step involves looking at the airport’s minimum standards and whether the standards are reasonable and applied fairly. Finally, the provider will have to deal with the airport’s specific requests, which often involve insurance, indemnification, charges, and security. Shelley A. Ewalt, Partner, is based in Princeton, New Jersey. Shelley’s practice focuses on aviation and airport law, and a comprehensive range of transportation and aviation regulatory compliance issues. Represented clients include FBOs, repair stations, flight departments, charter and scheduled air carriers, and aviation service support providers. Her career in aviation spans over 25 years, with experience ranging from front-line MRO opera- tions and management roles to legal roles. She is an active general aviation pilot with a commercial pilot’s license with multi-engine and instrument ratings. Shelley can be reached at [email protected] or +1.703.399.6078. Aviation Business Journal | Spring 2019 45
