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Airport Minimum Standards and Grant Assurances 22 and 23

T

The Hangar Direct Team

hangardirect.com

complianceFAAairport operations

Minimum standards are the airport's best defense against an exclusive rights complaint, and they can also be the evidence that proves one. The FAA will back a sponsor that denies access under standards that are reasonable, relevant, attainable, and applied to everyone. It will not back standards written so that only the incumbent can meet them. The difference usually comes down to drafting and record-keeping, not intent.

Many airports adopted minimum standards decades ago, often by copying another airport's document, and have not looked at them since. Then a mobile mechanic, a flight school, or a second FBO applies, and the airport discovers its standards were never written for that applicant. This post covers what the FAA expects, what the Part 16 record shows, and how to build or update standards that hold up.

This is a general explainer, not legal advice. Your FAA Airports District Office and your airport attorney are the authorities on any specific situation.

What Minimum Standards Are For

They are the sponsor's document. Order 5190.6C, Section 10.1, is direct: "While minimum standards are developed by airport sponsors, the Regional Airports Divisions (Regions) and airports district offices (ADOs) are available to advise sponsors on the proposed standards including whether the standards appear to protect or convey an exclusive right. The FAA does not provide formal approval of minimum standards."

They support two grant assurances. Grant Assurance 22 requires reasonable, not unjustly discriminatory access. Grant Assurance 23 prohibits granting exclusive rights. Section 10.2 explains how they connect: when a sponsor "imposes reasonable and not unjustly discriminatory minimum standards for airport operations, and the sponsor then denies access or services based on those standards, the FAA will not find the sponsor in violation of the assurances regarding exclusive rights and unjust discrimination."

The FAA recommends them. Section 10.4 says the FAA "strongly recommends developing minimum standards" because they promote safety, protect users from unauthorized services, "Prevent disputes between aeronautical providers and reduce potential complaints," and give "a clear and objective distinction" between providers.

The FAA's guidance document is Advisory Circular 150/5190-8, Minimum Standards for Commercial Aeronautical Activities.

The Five Conditions

Section 10.2 says standards earn FAA deference only if they:

  1. "Apply uniformly to all similarly situated providers of aeronautical services including full service Fixed-Base Operators (FBOs) and Specialized Aviation Service Operators (SASOs)."
  2. "Impose conditions that ensure safe and efficient operation of the airport in accordance with FAA guidance when available."
  3. "Are reasonable, not unjustly discriminatory, attainable, uniformly applied and reasonably protect providers of aeronautical services from unreasonable competition."
  4. "Are relevant to the activity for which they apply."
  5. "Provide the opportunity for others who meet the standards to offer aeronautical services."

Nonaeronautical activities such as restaurants, parking, and car rental do not need to be in minimum standards at all.

Where Standards Go Wrong

A standard only one operator can meet. Section 10.3: "When the sponsor implements minimum standards for the purpose of protecting an exclusive right, the FAA may find the sponsor in violation of the exclusive rights prohibition. Evidence of intent to grant an exclusive right might be, for example, the adoption of a standard that only one particular operator can reasonably or practically meet." Square footage, staffing, or hours requirements that match the incumbent's facility exactly are the classic warning sign.

Requirements that do not fit the airport. Section 10.5.a gives the FAA's own example: at "a small, rural airport that serves only small General Aviation (GA) aircraft," a requirement for the FBO "to make jet fuel available if there were few jet operations at the airport would likely be unreasonable." Similarly, if the airport serves aircraft that use automotive fuel, it would be unreasonable to block an FBO from selling MoGas or to set a fuel tank size that does not fit the fuel being sold.

Copied standards. The same section says "'fill-in-the-blank' minimum standards and the blanket adoption of another airport's standards are usually not effective," because they "could result in the imposition of irrelevant and unreasonable standards."

Insurance that cannot be bought. Section 9.6.d says "insurance requirements have to be reasonably attainable and relevant to the aeronautical activity and cannot have significantly higher requirements than other similarly situated activities."

Requiring operators to buy from you. Under Section 9.6.f, if the sponsor "requires an FBO to procure fuel, services, or supplies from a source specified by the sponsor, the FAA may deem the requirement an unreasonable restraint."

Safety restrictions without FAA backing. Section 10.5.b says a restriction imposed for safety or efficiency and then challenged "will require concurrence from FAA Flight Standards (FS) and/or Air Traffic (AT)" before the FAA will find it reasonable. You cannot simply declare an activity unsafe.

Single-Service Operators, Freelancers, and Clubs

SASOs. Section 10.5.f says a sponsor "should not, without adequate justification, require that a service provider desiring to provide a single service or less than full service also meet the criteria for a full-service FBO." Examples include flight training, airframe and powerplant maintenance, charter, avionics, and aircraft sales. One useful limit: "Airport sponsors are not required to permit a SASO for fuel sales alone. The right to sell fuel is generally bundled with other required services."

Independent operators. Under Section 10.5.g, if freelance operators such as mobile mechanics or aircraft washers are allowed, the airport "should have a licensing or permitting process in place that provides a level of regulation and compensation satisfactory to the airport." The FAA suggests that "a yearly fee or percentage of the gross receipts fee is a satisfactory way of monitoring this type of operation." Without a permit, you have no list of who is working on your field and no fee.

Flying clubs. Under Section 10.6, clubs "will not be subject to commercial FBO requirements" if they meet the club conditions. The sponsor may require documents such as insurance policies, membership lists, and tax returns. Clubs may not offer charter, air taxi, or rental.

Illegal charter. Section 10.7 and AC 150/5190-8 both describe lease and standards language requiring operators to follow FAA rules, list aircraft used commercially, and provide copies of their FAA operating certificate. The FAA does not want sponsors investigating suspected illegal charter. Report it to your FSDO.

The Proprietary Exclusive and Single-FBO Airports

You can do it yourself. Section 9.6.g says the airport sponsor "may itself exercise, but may not grant to another entity, the exclusive right to conduct any aeronautical activity." The catch: "sponsors must use their own employees and resources to conduct aeronautical activities under this exclusive right. An independent commercial enterprise, designated as agent of the owner, may neither exercise nor be granted an exclusive right at the airport." A management contract does not turn a private FBO into a proprietary exclusive.

Running an RFP does not end the analysis. According to the FAA's Summary of Updates, Section 8.8.b now says a competitive offering such as an RFP "does not absolve a sponsor from having to comply with its broader federal obligation on airport access and cannot be used to exclude others from same level of airport access on reasonable terms."

Watch assignments. Section 12.3.b(7) asks whether the sponsor kept the right to approve an assignment in advance, and gives the example of a dominant fixed-base operator (FBO) that "decides to acquire all other competing FBOs on the airfield." If your FBO leases do not require consent to assignment or change of control, consolidation can happen without you.

What the Part 16 Record Shows

Boca Raton: the last parcel. In Boca Raton Jet Center v. Boca Raton Airport Authority (FAA Docket No. 16-97-06), the FAA's December 22, 1997 Director's Determination found that by denying a lease to the complainant and leasing "the last remaining parcel of undeveloped land (the 15 acres)" to the airport's only full-service FBO, the Authority was "in noncompliance with the provisions regarding exclusive rights." The FAA required a corrective action plan.

The follow-on case, Boca Airport, Inc. v. Boca Raton Airport Authority (FAA Docket No. 16-00-10), came from the incumbent FBO after the Authority used an RFP to lease the parcel to a competitor. The Director dismissed the complaint, finding that the decision to lease the parcel to the competitor "is not in violation of its Federal obligations." On appeal, the Associate Administrator affirmed with one exception, holding that "explicit FAA approval for interim non-aviation use of aeronautical property is required." The D.C. Circuit later upheld the FAA. Two takeaways:

  • Space can create an exclusive right. Giving the only developable land to the only FBO can create an exclusive right even without a single exclusive word in the lease.
  • Contract disputes go to court. The FAA said contract disputes between the airport and a tenant are "a matter for a state court to decide; a Part 16 complaint is not the right forum to resolve that issue."

Bloomington-Normal: the FAA is not your arbitrator. In Platinum Aviation v. Bloomington-Normal Airport Authority (FAA Docket No. 16-06-09, Final Decision and Order November 28, 2007), the FAA said: "The FAA does not arbitrate disputes through the Part 16 complaint process. Nor does the FAA enforce contract terms between parties to an agreement when the FAA is not a party to that agreement." It also said it "can neither bargain away the rights of access to public-use taxiways and movement areas nor waive the grant assurances of the Respondent."

Complaints plead everything. Jimsair Aviation Services v. San Diego County Regional Airport Authority (FAA Docket No. 16-06-08) raised Grant Assurances 22 and 23 along with 5, 8, 16, 18, 24, and 29. Expect any minimum standards dispute to arrive bundled with rates, leasing, and planning claims, which is why your files need to cover all of them. Our Part 13 and Part 16 post covers the process itself.

What This Means Practically: Build or Update Checklist

  • Start from your airport. Note based aircraft, fuel types, operations mix, and available land. Do not start from another airport's document.
  • Write one section per activity. Cover FBO, each SASO category, flying clubs, and independent operators, with requirements relevant to each.
  • Test each requirement against the incumbent. Ask whether a new, qualified operator could reasonably meet it. If it only matches the incumbent's building, rewrite it.
  • Set insurance by activity. Use limits that are actually available for that activity in your market.
  • Add an independent operator permit. Use an annual fee or a percentage of gross receipts.
  • Add commercial-use and certificate requirements. Follow AC 150/5190-8 and Section 10.7.
  • Require consent to assignment and change of control. Put it in every commercial lease.
  • Track land. Know which parcels are available for aeronautical development and who holds options on them.
  • Ask your ADO for informal review. Their advice is not approval, but it helps.
  • Apply the standards the same way every time. Keep each applicant's file showing what was required and what was provided.

Standards protect you only when you can show they were applied evenly. Hangar Direct keeps operator files, insurance, and permits in one place at platform.hangardirect.com.

Sources

Apply your standards the same way every time

Minimum standards hold up when every operator's permit, insurance, and documents are tracked against the same requirements. Book a demo and see how airports keep commercial operator files consistent.

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