):^ > 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

Certified Mail - Return Receipt 

Barbara E. Lichman, Ph.D. 

Steven M. Taber 

CHEVALIER, ALLEN & LICHMAN, LLP 

695 Town Center Drive, Suite 700 

Costa Mesa, California 92626 

(714)384-6520(v) 

(714)384-6521(1) 

Peter J. Kirsch 

David I. Spector 

KAPLAN KIRSCH & ROCKWELL, LLP 

1675 Broadway, Suite 2300 

Denver, Colorado 80202 

(303) 825-7000(v) 

(303) 825-7005(f) 

Richard Cashman 

James Wenzel 

County of Westchester 

18 Marline Avenue, Room 600 

White Plains, New York, 10601 

(914) 995-3646(v) 

(914) 995-2495(f) 

Dear Ms. Lichman and Mr. Kirsch and Cashman: 

8EP 2 1 2009 

Docket No. 16-07-13 

••^•' 1 

Re: 41 North 73 West hic, v. Westchester County, New York, FAA Docket No. 16-07-13 

Enclosed is a copy of the Final Decision and Order of the Federal Aviation Administration 

(FAA) with respect to the above-referenced matter. 

Based on the record in this proceeding, FAA finds that the determination made by the 

Director of Airport Compliance and Field Operations is supported by a preponderance of 

reliable, probative and substantial evidence. I affirm the Director's Determination that the 

County of Westchester, New York, was not in violation of 49 U.S.C. § 47107(a) and 

related federal grant assurances 22, Economic Nondiscrimination, 23, Exclusive Rights and 

24, Fee and Rental Structure, and Federal law regarding the collection and spending of 

proceeds from an approved passenger facility charge. 
The reasons for upholding the Director's Determination are set forth in the enclosed Final 

Decision and Order. 

Sincerely, 

Catherin Ml TIeP M T .s\no _\ / Datp ' M. Lang ^^ ]\ ' Date' 

Acting Associate Ac 

for Airports 
UNTTED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

41 North 73 West, Inc. dba AVITAT 

Westchester and Jet Systems 

Complainant/Appellant 

V. 

The County of Westchester, New York 

Respondent/Appellee 

Docket No. 16-07-13 

FINAL DECISION AND ORDER 

I. INTRODUCTION 

This matter is before the Federal Aviation Administration (FAA) Associate Administrator for 

Airports on appeal filed by 41 North 73 West, dba AVITAT Westchester and Jet Systems from 

the Director's Determination of June 12,2008, issued by the Director of the FAA Office of 

Airport Safety and Standards , pursuant to the Rules of Practice for Federally Assisted Airport 

Enforcement Proceedings found in Title 14 Code of Federal Regulations (CFR) Part 16. 

Avitat argues on appeal to the Associate Administrator for Airports that the Director committed 

errors in conducting the investigation and interpreting the evidence. Avitat raises the following 

issues on appeal: 

1. Whether the Director's Determination is supported by a preponderance of reliable, 

probative, and substiintial evidence or proper conclusions of law due to the fact that it 

is based on distinguishable precedent, incorrect assimiptions, misreading of relevant 

documents, and omission of critical facts? [FAA Exhibit 1, Item 13, page 16] 

2. Whether the Airport Manager allowing Panorama and Westair to sell jet fiiel to 

transient aircraft under 50,000 lbs maximum gross take-off weight constitutes 

unreasonable and/or discriminatory terms and/or conditions such that the County's 

grant assurances are violated? [FAA Exhibit 1, Item 13, page 16] 

3. Whether the County, by providing subsidies to Panorama and Westair and allowing 

them to sell jet fuel to transient aircraft imder 50,000 lbs MGTOW provided more 

favorable treatment in a manner that unjustly discriminates against Avitat and the 

other Jet FBOs in violation of Federal grant assurance 23? [FAA Exhibit 1, Item 13, 

page 16] 

The FAA Office of Airport Safety and Standards was reorganized and isjipw called Airport Compliance 

and Field Operation s (ACQ). ACQ is the office responsible for Part 16 decisions. 
4. Whether the County burdened Avitat and the other Jet FBOs with the cost of 

economically supporting Panorama and Westair and whether this constitutes unjust 

economic discrimination with regard to retail aircraft services and constructively 

grants an exclusive right on the Airport in violation of grant assurance 23 and Federal 

law? [FAA Exhibit 1, Item 13, page 16] 

5. Whether the County has failed to maintain an aeronautical rent schedule that makes 

the Airport as self-sustaining as possible under the circumstances existing at the 

Airport, by providing more favorable financial treatment to Panorama and Westair in 

violation of grant assurance 24? [FAA Exhibit 1, Item 13, page 16] 

In arriving at a final decision on this Appeal, the FAA has reexamined the record, including the 

Director's Determination, the administrative record supporting the Director's Determination, 

Avitat's Appeal, and Respondent's Reply in light of applicable law and policy. Based on this 

reexamination, the FAA affirms the Director's Determination. The Associate Administrator 

concludes that the Director's Determination is supported by a preponderance of reliable, 

probative, and substantial evidence, and is consistent with applicable law, precedent, and FAA 

policy. Avitat's Appeal does not contain persuasive arguments sufficient to reverse any portion 

of the Director's Determination. 

IL SUMMARY OF THE DIRECTOR'S DETERMINATION 

In its initial Complaint, Avitat argued the Respondent provided the small-class fixed base 

operators (FBO) with preferential financial treatment, as compared to Avitat, in breach of the 

County's Federal obligations regarding grant assurances 22, Economic Nondiscrimination, 23, 

Exclusive Rights, and 24, Fee and Rental Structure; and Federal law regarding the collection and 

spending of proceeds from an approved passenger facility charge (PFC). [FAA Exhibit 1, Item 1, 

ppl-2] 

The Director found that the County did not provide more favorable treatment to the Light 

General Aviation (LGA) FBOs at that Airport with regard to retail aircraft services or rent 

terms in a maimer that unjustly discriminates against Avitat in violation of Federal grant 

assurance 22. [FAA Exhibit 1, Item 1, p 35] 

The Director found that the LGA FBO leases, imchanged since 2001, and grant assurance 23, 

and the laws regarding exclusive rights, do not protect an entity from more effective 

competition emerging under pre-existing rights. The Director determined that the County was 

not in violation of grant assurance 23 or a related constructive granting of an exclusive right. 

[FAA Exhibit 1, Item 1, pp 36-37] 

The Director found that the County's below-market rental rates for specific rights and access to 

facilities under the LGA FBO leases to ensure service to a segment of the aeronautical 

community is not a violation of grant assurance 24, Fee and Rental Structure. [FAA Exhibit 1, 

Item 1, p 39] 

Page 2 of 50 
III. PARTIES 

A. Airport 

Westchester County Airport is a public-use, air carrier airport owned by Westchester County, New 

York. The Airport has property consisting of 702 acres. The Airport is home to approximately 389 

aircraft and had more than 160,000 aircraft operations in 2006. FAA records indicate the planning and 

development of the Aiqx)rt has been financed with ftinds provided by the FAA under the Airport 

Improvement Program (AIP) authorized by the Airport and Airway Improvement Act of 1982, as 

amended, 49 U.S.C. § 47101, et seq. [See FAA Exhibit 1, Item 11] Through the County's Master Grant 

Agreement with the FAA, the County has accepted Federal obligations under grant assurances 22, 23, 

and 24. [FAA Exhibit 1, Item 1, exhibit 10] The Airport property is ftjily developed, creating a 

constrained operating environment for business growth or development. The FBO-leaseholds at issue 

in this Complaint are located in the southwest side of the airfield in proximity to each other. [FAA 

Exhibit 1, Item 1, exhibit 3; also, FAA Exhibit 1, Item 9, exh. 12. p. I] 

B. Complainant/Appellant 

Complainant 'Avitat' is a corporation having an office and a place of business at Hangar "E" at 

Westchester County Airport. Avitat operates as a larger-class FBO at the Airport pursuant to two leases 

it has with the County. [FAA Exhibit 1, Item 1, p. 3] Avitat has been operating at the Airport under a 

lease since at least 1991. [FAA Exhibit 1, Item 1, ex. 4, p. 2] 

IV. PROCEDURAL HISTORY and FACTUAL BACKGROUND 

A. Procedural History 

Avitat filed its Complaint with the FAA on October 19,2007. 

The FAA provided a Notice of Docketing to the parties on November 5, 2007. 

The County filed its Motion to Dismiss and Answer to Avitat's complaint on December 27, 

2007. 

Avitat submitted its Reply to County's Answer and Motion on January 14, 2008. 

The County filed its Rebuttal to Avitat's Reply on February 1,2008. 

On June 12,2008, FAA issued the Director's Determination in this matter. [FAA Exhibit 1, Item 

16] 

On July 10,2008, Avitat filed an Extension of Time to File an Appeal. The due date was 

extended to September 29,2008. [FAA Exhibit 1, Item 12] 

On August 15,2008, Avitat filed an Appeal from the Director's Determination. [FAA Exhibit 1, 

Item 13] 

Page 3 of 50 
On September 23, 2008, the Respondent County of Westchester filed its Reply to Avitat's 

Appeal. [FAA Exhibit 1, Item 14] 

B. Factual Background 

In October 1985, Westchester County Board of Legislators (Board) passed a Statement of 

Airport Policy that guides Airport management in the operation and development of the Airport 

to this day. In this document, the County put forth its vision for the use of the Airport, stating 

that the Airport "has been designed for use primarily by general aviation, both private and 

corporate, light and heavy." [FAA Exhibit 1, Item 6, exh. U, p. 2] As far back as 1985, the 

County aimed to protect the 'general aviation' character of the Airport, as well as serve the 

interests of County residents who own and operate small aircraft, ^ designating a location on the 

Airport "to serve... primarily light general aviation." [FAA Exhibit 1, Item 6, exh. U, p. 4; see 

also, FAA Exhibit 1, Item 6, p. 10] Prior airport planning documents supported this Statement of 

Airport Policy's focus on light general aviation, including the Westchester County Airport 

Master Plan Study dated October 1980 (1980 Master Plan Study). [FAA Exhibit 1, Item 6, exhs. 

S & T] Specifically, the 1980 Master Plan Study called for development of apron and hangars for 

light general aviation. [FAA Exhibit 1, Item 6, exh. S, pp.3,4, 7, 8] 

In February 1987, the County continued to address its interest in protecting light general aviation 

at the Airport in its Master Plan Update. In the Master Plan Update's Public Comments and 

Response section, the County stated; 

The need for improved general aviation facilities is clear. The general aviation facilities 

currently include no individual hangars for privately-owned aircraft. The FBOs serving 

general aviation are housed in part in temporary spaces or in dilapidated buildings used 

for aircraft parking. Some of the apron areas have broken pavement, which could cause 

damage to aircraft; other aircraft are parked on the grass or dirt.... 

The Master Plan analysis has shown that the two new areas designated for general aviation 

development will be sufficient to meet the general aviation needs of the airport in the future. 

It is recognized that in a free market, tie-down and hangar space at the Westchester County 

airport would go to the "highest bidder, " i.e., that the price would increase and that the 

available space would go to those who are willing to pay the highest rates for these 

services. It is the County's desire that, to the greatest extent possible, the present mix of 

based aircraft and transient commercial aircraft remain the same, so as to maintain the 

character of a general aviation airport. It may therefore be necessary to provide economic 

protection for the light general aviation sector, as a matter of County policy, in order to 

maintain that mix. [FAA Exhibit 1, Item 6, exh. V, p. 7-7] 

On May 9,1991, Westchester County officials circulated an Internal Memo forwarding two 

letters from general aviation users of HPN complaining about conditions for general aviation at 

the Airport [FAA Exhibit 1, Item 6, exh. RR] 

See FAA Exhibit 1, Item 6, exh. I for a list of aircraft registered in Westchester County, New York. 

Page 4 of 50 
On April 1, 1992, Westchester County issued a Notice to Air Carriers in pursuit of a Passenger 

Facility Charge (PFC) application to the FAA. The County included in this Notice a list of 

projects that could be fimded with the proceeds of the PFC, including "Light General Aviation 

Infrastructure." [FAA Exhibit 1, Item 1, exh. 7, ex. b] 

In July 1992, Westchester County submitted its PFC application. The County included in this 

application a list of projects that could be funded with the proceeds of the PFC, including "Light 

General Aviation Infrastructure." [FAA Exhibit 1, Item 1, exh. 8 and Item 6, exh. CC] 

On November 9, 1992, the FAA sent a letter to Westchester County approving a PFC, including 

approval to use PFC-collected monies in the amount of $8,383,000 for the construction of the 

LGA facilities. [FAA Exhibit 1, Item 1, exh. 9, p. 6 and Item 6, exh. DD, p. 6] Subsequently, the 

FAA also approved a Finding of No Significant Impact with regard to the FAA's financial 

participation in a set of projects, including the development of sites for LGA FBOs.^ [FAA 

Exhibit 1, Item 6, exh. X, p.l] 

County Pursuit of LGA FBO Service Providers at the Airport 

On December 8, 1997, Westchester County issued a Request for Proposals (RFP) for the 

Operation and Management of a Light General Aviation Fixed Base Operation at the Airport. As 

well as soliciting interest in two specific parcels on the Airport for the use of Light General 

Aviation fixed-base operators (LGA FBOs), the RFP also characterized the operations requested: 

Improvements: Commitment from the successful respondent to construct hangars and 

supply necessary equipment at no cost to the County of Westchester. Services to be 

provided include: 

Tiedown 

Hangaring 

Aircraft Maintenance 

Flight School (including ground training) 

Charter 

Aircraft Management 

AvGasfuel and oil sales 

Aircraft sales [FAA Exhibit 1, Item 1, exh. 12, p. 5] 

The RFP fiirther lists light, general aviation services to be allowed and prohibited: 

Services offered may include but are not limited to: 

• Aircraft maintenance 

• Aircraft sales 

^ Both parties to this Complaint refer to the FBOs at the Airport that the County designated for light 

general aviation and restricted to two specific locations at the Airport as 'LGA FBOs.' However, the 

parties differ in their respective references to other FBOs that are free by the terms of their agreements 

with the County to service any aircraft at any location at the Airport. The Complainant refers to the 

unrestricted FBOs as 'Jet FBOs.' The Respondent refers to them as 'Larger GA FBOs.' The history and 

development of these distinctions are discussed more fiilly below. - * 

Page 5 of 50 
• Aircraft tiedown 

• Aircraft hangar accommodation 

• Aircraft T-hangar accommodation 

•Pilot Shop 

• Flight School (including ground school) 

• Charter 

• Aircraft management 

• Aircraft avgas and lubricant sales 

• Weather briefing facilities 

Services that are prohibited include: 

• Jet grade fixel sales 

• Accommodation of aircraft over 12,500 lbs. MGTOW with the exception of 

aircraft managed by the successful respondent. All exceptions are subject to 

the prior approval of the Airport Manager. 

• Accommodation of aircraft over 12,500 lbs., MGTOW, without the prior 

consent of the Airport Manager. 

• No outside public address system is allowed. [FAA Exhibit 1, Item 1, exh. 12, p. 6] 

[See Also, FAA Exhibit 1, Item 6, exh. Z] 

In January and February 1998, both Westair and Panorama submitted their RFP Proposals in 

response to the County's solicitation. [FAA Exhibit 1, Item 6, exh. AA & BB] The County had 

determined to preclude existing larger FBOs at the Airport (such as the Complainant, Avitat) 

from participating in the RFP. [FAA Exhibit 1, Item 1, exh. 13 and Item 6, exh. II] 

On June 11,1998, Joel Russell, HPN Manager, wrote an Internal Memo to County DOT 

Commissioner, Eric B. Langeloh, submitting a proposed fee and rental structure for Light 

General Aviation (LGA) FBO Rental. The Memo stated: 

The goal of the RFP is to meet the County's obligation^ to the light general aviation 

community. The keystone is the establishment of a knowledgeable, viable and healthy FBO 

operator. The rental schedule must reflect and respect that mission. Utilizing a traditional 

rental based on square footage would be difficult.... A percentage of gross (receipts) 

scheme is proposed.... The suggested rate is low. 1) The required use of the land will not 

develop significant rental revenue. 2) The low rate will allow some return, but will also 

shield the County from the criticism of gouging the FBO operator or causing gouging to the 

flying public. [FAA Exhibit 1, Item 1, exh. 14 and Item 6, exh. J J] 

In July 1999, the County executed 30 year leases with Westair Aviation (Westair Lease) [FAA 

Exhibit 1, Item 1, exhibit 6 and Item 6, exhibit C] and Panorama Flight (Panorama Lease) [FAA 

Exhibit 1, Item 1, exh. 5 and Item 6, exh. A], collectively, the LGA Leases. The LGA Leases 

were nearly identical to each other, excepting description of parcels, including rent and use 

requirements. Regarding rent. Article II of the LGA Leases state: 

* The FAA believes that this does not refer to the County's Federal obligations. 

Page 6 of 50 
Section 2.1 For the purposes of this section, "Basic Business Segments" shall 

mean the individual revenue generating activities of the operation of the Premises, 

previously approved by the County, which contribute to the Gross Receipts of the business. 

Basic Business Segments shall include the following activities: 

Aircraft Tiedown, Based and Transient 

Aircraft Hangaring, Based and Transient 

Aircraft Maintenance, including airframe, engine and avionics 

Flight School (including ground training) 

Aircraft Rental 

Aircraft Charter Operations 

Aircraft Management 

AvGas Fuel and Lubricant Sales 

Aircraft Parts Sales 

Pilot Shop Sales 

All other revenue producing activities except as defined in Section 2.2 

This list of approved Basic Business Segments may be modified only upon the prior written 

approval of the Airport Manager. 

Section 2.1.1 Tenant shall pay as rent a percentage of year-to-date Gross 

Receipts (measuredfrom the commencement date and each anniversary thereafter) 

received by the Tenant from the operation of the Basic Business Segments as indicated on 

Exhibit C-1. 

Section 2.1.2 Gross Receipts shall mean all revenues, exclusive of federal, state 

and local taxes, including sales tax, collected by the Tenant from the operation of the Basic 

Business Segments. 

Section 2.2 For the purposes of this section, "Special Business Segments" shall 

mean the individual special revenue generating activities of the operation of the Premises, 

previously approved by the County, which contribute to the Gross Operating Profit of the 

business. Special Business Segments shall include the foUofwing activities: 

• Aircraft Sales 

• Aircraft Charter utilizing.. not based at the Leased Premises. 

• Management of aircraft... not based at the Leased Premises. 

This list of approved Special Business Segments may be modified only upon the prior 

written approval of the Airport Manager. 

Section 2.2.1 Tenant shall pay as rent a percentage of year-to-date Gross Operating Profit 

(measured from the Commencement Date and each anniversary thereafter) 

received by the Tenant or the Tenant's subtenants from the operation of the Special 

Business Segments as indicated on Exhibit C-2. Should the Commencement Date be other 

than January I, the Gross Operating Profit for the initial calendar year shall be 

proportionally adjusted as if it was collected over a twelve (12) month period. [FAA 

Exhibit 1, Item 1, exhs. 5 & 6, pp. 6-7] 

In its Answer, the County states, "For "Basic Business Segments," which includes the required 

services to be provided under the leases, in years one through ten of their leases Westair and 

Panorama must each pay as rental: 0.50 percent of their Gross Receipts up to $10,999,000; 5.00 

percent of their Gross Receipts between $11,000,000 and $15,999,000; and 8.00 percent of their 

Page 7 of 50 
Gross Receipts over $16,000,000." [FAA Exhibit 1, Item 6, p. 15] [See Also, FAA Exhibit 1, 

Item 1, exhs. 5 & 6, exhs. C-1 and C-2] 

Regarding services, the Article III of the LGA Leases state: 

Section 3.0 Tenant shall^ occupy and use the Premises for the following 

purposes and for no other purpose whatsoever: 

(a) For the operation of a full service Light General Aviation Fixed Base 

Operation, including, but not limited to: 

I. Storage and parking of aircraft including (hangars and tie-downs). 

IL Aircraft maintenance.... 

III. Aircraft engine maintenance... 

IV. Rental, lease, charter and management of aircraft. 

V. Flight instruction including ground school and flight simulation. 

VL Pilot shop operation. 

Vll .Sale of aircraft AvGas and lubricants. 

Vlll. Sale of aircraft and aircraft parts 

(c) The Tenant agrees, as a condition of this Agreement, that it shall not base (including 

managed and leased) any aircraft having a maximum gross take-off weight over 12,500 lbs. 

at the Airport, without the prior consent of the Airport Manager. The Airport Manager 

hereby expressly consents that the Tenant, as part of its managed or leased aircraft fleet, 

may base, upon prior written notification to the Airport Manager, up to twelve (12) aircraft 

having a maximum gross take-off weight over 12,500 lbs. and less than 50,000 lbs. 

(d) The Tenant agrees, as a condition of this Agreement, that it shall not 

accommodate any aircraft having a maximum gross take-off weight over 50,000 lbs. at the 

Airport, without the prior consent of the Airport Manager. [FAA Exhibit 1, Item 1, exhs. 5 

«& 6, pp. 11-12] 

The LGA Leases emphasized the restriction on 'heavier' general aviation aircraft by citing 

pavement limitations at Section 24.7: 

Tenant shall not overload any floor, structure, structural member or paved area on the 

Premises, or paved area elsewhere on the Airport, and shall repair at Tenant's expense any 

floor, structure, structural member, or any paved area damaged by such overloading. It is 

understood by the parties that the ramp area has been designed for loads up to 50,000 lbs. ^ 

[FAA Exhibit 1, Item 6, exhs. A & C, p. 66] 

Additionally, the LGA Leases both mention the possibility of the LGA FBOs selling jet fiiel. 

Section 3.6 of the LGA Leases state, "If the percentage of Tenant based aircraft under 12,500 

lbs. that utilize jet fixel exceeds 10%, the parties agree to meet to discuss the possibility of the 

' The County in its Answer interprets this provision to require the LGA FBOs to offer these services. 

[FAA Exhibit 1, Item 6, p. 14] Also, in an internal memo of July 30,2001, die County states that a 

similar list of services is required of the LGA FBOs. [FAA Exhibit 1, Item 1, exh. 37] 

^ The Director noted that pavements designed for a certain weight (50,000 lbs) may reasonably be 

managed by an airport sponsor to accommodate some level of aircraft over the design limit, but not 

unlimited use above the wei^t-bearing capacity of the pavement. 

Page 8 of 50 
County granting Tenant the right to sell jet fiiel." [FAA Exhibit 1, Item 1, exhs. 5 & 6, p. 13] 

[FAA Exhibit 1, Item 1, pp.11-13; and Item 6, pp.6-8,13-16, 33] 

Events after LGA FBOs began Operations 

After the County signed its LGA Leases on October 26, 2000, the County held a meeting with 

Westair. Handwritten meeting notes indicate a discussion regarding the possibility of Westair 

dispensing jet fiiel. [FAA Exhibit 1, Item 1, exhibit 16 and Item 9, exh. 8] 

In January 2001, the County passed a law authorizing a lease amendment that would begin 

implementing a voluntary restraint from nighttime flying at the Airport. [FAA Exhibit I, Item 1, 

exh. 15] Although the law mentions that Panorama has agreed to this Voluntary Restraint From 

Flying (VRFF) program. Panorama's Lease states: 

Section 24.16 Tenant shall develop, submit for County approval and abide by an aircraft 

parking program which incorporates safety and security considerations. As part of this 

program, aircraft which arrive or depart during the period of Voluntary Restraint from 

Flying (from 12 midnight to 6:30 am.) shall be parked in designated areas only. In 

addition, infrequent flyers shall be assigned parking spaces closest to any off-site 

residences. [FAA Exhibit 1, Item 1, exh. 5, p. 69] 

In any case, with regard to the Voluntary Program, the County states in its Answer 

When an FBO lease is up for renewal or negotiation, the County asks each FBO whether it 

will voluntarily include the VRFF provisions in its lease. Whether each FBO's lease has 

the VRFF terms is subject to the result of arms-length lease negotiations with that 

particular FBO. The VRFF program is completely voluntary, and each FBO may choose 

for itself to participate. The County offers FBOs no incentives and imposes no penalties in 

connection with participation in the program. [FAA Exhibit 1, Item 6, p. 19] 

More recent LGA FBO Leases, including Avitat's, include a VRFF provision requiring lessees to 

use reasonable efforts to cause FBO customers to comply with the voluntary program and to 

distribute information to users expressing the need to understand the concerns of the local 

community. [FAA Exhibit 1, Item 6, exh. E, p. 38; exh. G, p. 21; and exh. H. pp. 24-25] The 

Larger GA FBO leases, including Avitat's 2005 Lease, were executed between October 2005 

and September 2006. 

In the Spring and Sununer of 2001, Westair began reviewing their operations and operational 

needs with the County, including requesting permission to dispense jet fiiel to tenants, as well as 

to retail fiiel to transient operators. [FAA Exhibit 1, Item 1, exhs. 18,20,34-36 & Item 9, exhs 

9,10] Like Westair, on September 5,2001, Panorama wrote to the County to request the right to 

sell jet fuel. [FAA Exhibit 1, Item 1, exhibit 21 and Item 6, ex. KK] [See Also Panorama Lease, 

FAA Exhibit 1, Item 1, exh. 5, p. 13] On September 7,2001, Panorama wrote to Joel Russell, 

HPN Manager, providing evidence that some of Panorama's tenants require jet fiiel for thenPage 9 of 50 
aircraft, triggering the criteria for discussion with the County regarding jet fiiel sales.' [FAA 

Exhibit 1, Item 9, exh. 3] In the Summer of 2001, the County conducted some internal 

deliberation regarding the interest of the LGA FBOs in selling jet fiiel. [FAA Exhibit 1, Item 1, 

exh. 19] 

As a result of these conversations as set out in the LGA Leases, in Section 3.6, the County did 

decide to allow jet fuel sales by the LGA FBOs in accordance with their original leeises for 

aircraft weighing no more than 50,000 lbs. The letters sent to both Westair and Panorama (2001 

LGA Approval Letters), on September 20, 2001, stated: 

Please use this letter as approval to provide Jet fuel at your New Facility under the 

following conditions: 

1. (Panorama/Westair) will be granted jet fuel sale authority. (Panorama/Westair) will 

be allowed to provide jet fuel to: 

• Based aircraft with a written tiedown, hangar or T-hangar agreement with 

(Panorama/Westair) 

• Aircraft owned or leased by (Panorama/Westair) 

• Transient jets which are permitted on the (Panorama/Westair) ramp^ 

2. Procedures 

• A monthly list of aircraft meeting these requirements will be sent to the Airport 

Manager 

• A current copy of the qualifying agreement between (Panorama/Westair) and the 

aircraft operator will be sent to the Airport Manager. 

This approval may be revoked by the County of Westchester for any reason upon sixty days 

notice. [FAA Exhibit 1, Item 1, exhs. 22 & 23 and Item 6, exhs. B & D] 

On March 12, 2002, Westair announced jet aircraft management at the Airport. [FAA Exhibit 1, 

Item 1, exh, 24] 

On September 5,2002, Joel Russell, HPN Manager, wrote to Westair denying its request to 

construct an additional hangar on its leasehold. [FAA Exhibit 1, Item 6, exh. PP] 

On March 10,2003, Panorama wrote to Joel Russell, HPN Manager, to request an exemption 

from the prohibition of Panorama servicing transient aircraft with a MGTOW' of over 50,000 

lbs, as prohibited by the LGA Leases without prior consent of the County and limited by the 

' The LGA Leases both mention the possibility of the LGA FBOs selling jet fuel. Section 3.6 of the LGA 

Leases state, "If the percentage of Tenant based aircraft under 12,500 lbs. that utilize jet fuel exceeds 

10%, the parties agree to meet to discuss the possibility of the County granting Tenant the right to sell jet 

fiiel." [FAA Exhibit 1, Item 1, exhs. 5 & 6, p. 13] 

' The LGA Leases refer to an aircraft weight limit of 50,000 lbs. on the LGA leaseholds. The limit to 

aircraft under 50,000 lbs. is mentioned as a restricted service in Section 3.0 c & d. Also, the LGA Leases 

refer to the design limit of the apron pavement of the LGA leaseholds as 50,000 lbs. at Section 24.7. 

[FAA Exhibit 1, Item 6, exhs. A & C, pp. 11,66] 

'Maximum Gross Take-off Weight. 

Page 10 of 50 
design weight-bearing capacity of the pavement of its leasehold.'° [FAA Exhibit 1, Item 1, exh. 

25 and Item 6, exh. NN] [See Also, Section 3.0 of LGA Leases, FAA Exhibit 1, Item 1, exhs. 5 

& 6, pp. 11-12] 

On July 2, 2003, Peter Scherrer, Asst. HPN Manager, wrote to Panorama denying it's request to 

sell jet fuel to transient aircraft over 50,000 lbs. The County stated: 

Your request was reviewed by the Westchester County Department of Transportation and 

Airport Administration. The requested change to your lease limitation is denied, based on 

the fact that the original Request for Proposal (RFP) and the Environmental Impact 

Statement for both Light General Aviation Facilities prohibits the parking or servicing of 

aircraft in excess of 50,000 lbs. MGTOW [FAA Exhibit 1, Item 1, exh. 26 and Item 6, exh. 

OO] 

The record supports the inference that Westair wrote to HPN Management requesting to sell fiiel 

off its ramp. On May 26, 2004, Joel Russell, HPN Manager, wrote to Westair denying its 

request, stating: 

We are in receipt of your letter of May 4, 2004 concerning fueling operations. We are 

unable to agree with your request to fuel off your ramp. [FAA Exhibit 1, Item 6, exh. QQ\ 

On March 14, 2005, Westair wrote to Joel Russell, HPN Manager, with an extensive proposal to 

modify Westair's Lease. The letter stated: 

We would like to thank you for your efforts in allowing us to begin a process to help our 

operation at the airport. At the time 9-11 happened we faced losing our operation if not for 

County D.O. T. and your office. You realized the weak financial position Light General 

Aviation was in before 9-11, and reacting quickly to allow us to sell turbine fuel made it 

possible for [sic] to have these fiirther conversations.... 

We would like to step back for a minute to recognize major financial changes to date. The 

events of 9-11 cost our operation almost three hundred thousand dollars in extra debt.... 

The number of Light G.A. aircraft based at our facility has dropped 35 aircraft since 

November 1999. This decline in aircraft will continue to happen since the average age of 

our tiedown customer is over 60 years old. [FAA Exhibit 1, Item 1, exh. 28, p. 1 and Item 

6, exh. LL, p. 1] 

Westair continued by listing proposed modifications to the Westair Lease, including some 

discussion of rent adjustments: 

1. Our Master lease has provisions to limit the weight of aircraft to be based or 

transit at our facility. We feel the weight restriction should be lifted and aircraft should 

have the ability to be based at our facility without reference to being managed by Westair. 

2. ... Our sale of turbine fuel is also limited to our leasehold We request to have that 

restriction removed to allow fuel sales to be permitted anywhere at HPN. This 

"* See footnote 7. 

Page 11 of 50 
would increase fuel sales as well as introduce other based tenants and operators to our 

many services. 

3. We have asked to build an additional hangar facility. With the master lease 

revisions a second hangar would greatly benefit our operation. Revenues from 

subtenants along with added services would also increase revenues to the 

County. ... 

5. The addition of more T-Hangars. The demand for these units has not dropped... 

How do we do this? All of the modifications above require certain restrictions modified, 

or none of them will work Our goal is to create long term financial stability. We would 

propose that we section off certain areas of the leasehold to accommodate these changes 

and in essence have a formula to pay rent for that area. This situation would allow for the 

majority of the leasehold to maintain Light General Aviation operations. 

We realize segmenting the "facility " like this would require many sections of the master 

lease to need revisions as well as communications with the FAA. 

[FAA Exhibit 1, Item 1, exh. 28, p. 2 and Item 6, exh. LL, p. 2] 

Like Westair, on March 22, 2005, Panorama wrote to Joel Russell, HPN Manager to discuss 

significant LGA lease amendment proposals from Panoramju The letter stated: 

As you know, much has changed in our industry and in particular our airport since we 

signed our Lease in 1999. The tragic events of September 11, 2001 sent Aviation Insurance 

Premium rates to all-time record highs and drastically increased our overall cost of doing 

business. With each passing month new obstacles present arduous challenges to the 

process of operating a service oriented General Aviation FBO Facility in a safe and viable 

manner. The rapidly increasing cost to maintain a qualified labor worlrforce at HPN, as 

outlined in my August II, 2004 letter, and the sky rocketing cost of petroleum based 

products are just two more factors that have significantly contributed to the enormous 

increase in our overall cost of doing business. General Aviation operations conducted in 

aircraft less than 12,500 lbs MGTOW continues to steadily decline as do new student pilot 

enrollments. As a result of the aforementioned decline in General Aviation operations, 

sales for ancillary Lease mandated small aircraft services have continued to decline 

concurrently. 

At the same time, we are witnessing a rapidly growing number of transient business jet 

aircraft with Manhattan bound passengers who formerly frequented fTeterboro] and are 

now alternatively utilizing White Plains. The total gallons of Jet A fuel pumped annually at 

HPN continues to grow at a substantial pace. In order for Panorama to be able to afford 

the conduct of our day-to-day operations in a successfitl manner, increased revenues need 

to be generated outside of and in addition to our Lease mandated small aircraft service 

requirements. Increased growth in Jet fuel sales is the area that will ensure Panorama's 

future viability. [FAA Exhibit 1, Item 1, exhibit 29 and Item 6, exh. MM] 

New Lease Agreements with Avitat 

On October 1,2005, the County executed a 10-year lease with options to renew with Avitat (2005 

Avitat Lease). The 2005 Avitat Lease renewed Avitat's occupancy at the Airport on the same 

leasehold: - » 

Page 12 of 50 
... the County and Lessee previously entered into a lease agreement dated February 1, 1991 

and amended May 9, 1996 (the "Initial Lease Agreement ")for space in Hangar "E " at 

Westchester County Airport... ("Leased Premises")... and 

... the County and Lessee have agreed to terminate the Initial Lease Agreement and enter 

into a new Lease Agreement for the use and occupancy of the Leased Premises for the 

rental and upon the terms and conditions herein set forth. [FAA Exhibit 1, Item 1, exh. 4, p. 

Article 3 of the 2005 Avitat Lease describes Avitat's Use of Lezised Premises: 

3.1 County represents that the Lessee may use, and the Lessee shall occupy and use, 

the Leased Premises for the following purposes and for no other purpose 

whatsoever: 

3.1.1 For entering into agreements with private owners (the "Customers") for storage, 

maintenance, servicing and repair of aircraft, aircraft assemblies, aircraft accessories, 

aircraft radio and electronic equipment and any component parts thereof; and 

3.1.2 For the sale of aircraft assemblies, aircraft radio and electronic equipment and 

any component parts thereof; and 

3.1.3 For the parking of aircraft; and 

3.1.4 For business and operations offices and shops in connection with the purposes 

authorized hereunder... 

3.2 In addition to the foregoing rights, the Lessee shall have the right to sell aviation fuel 

and aviation lubricants and to deliver such fuel and lubricants to and into aircraft at the 

Airport, [emphasis added] all in accordance with the provisions of other agreements 

entered into or to be entered into between the County and Lessee specifically regulating 

such sales and deliveries and providing for the payment of fees therefore. 

3.3.1 The Lessee agrees, as a condition of this Lease, that it shall not base any aircraft 

having a maximum gross take-off weight over 120,000 lbs., at the Airport, without the 

approval of the Airport Manager, such approval not to be unreasonably withheld, delayed 

or conditioned. 

3.3.2 The Lessee agrees, as a condition of this Lease, that it shall not operate, or cause to 

be operated at the Airport, any aircraft having a maximum gross take-off wei^t of 120,000 

lbs., without the prior approval of the Airport Manager, such approval not to be 

unreasonably withheld, delayed or conditioned [FAA Exhibit 1, Item 1, exh. 4, pp. 10-12] 

Article 4 describes Avitat's Rental: 

4.1.1 For use and occupancy of the Leased Premises and privileges herein granted, the 

Lessee agrees to pay the County an annual rent During the initial year of this 

Lease, the annual rent shall be SDC HUNDRED NINETY-FIVE THOUSAND 

SEVEN HUNDRED TWO DOLLARS ($696,702), payable in substantially equal 

monthly installments. Upon completion of the improvements described in 

Schedule "B", the annual rent shall be EIGHT HUNDRED SEVENTY-FIVE 

THOUSAND ONE HUNDRED DOLLARS ($875,100), payable in substantially 

equal monthly installments.... 

Page 13 of 50 
4.1.2 During the Initial Term (20 years), the County will perform a good faith evaluation of 

the market rent as of the fifth anniversary of the commencemerU date. During any Renewal 

Terms, the County will perform a good faith evaluation of the market rent as of the 

commencement date of the Renewal Term and the fifth anniversary of the commencement 

date of the Renewal Term using the standards currently in place at the Airport for 

determining market value, using current and future tenants located at the Airport as the 

basis for such evaluation Should the County determine that Lessee is paying in excess of 

market value according to any such evaluation, then effective as of the date of such 

evaluation. Lessee will not be subject to any increase in its rent until such time as Lessee's 

rent no longer exceeds market value. Lessee shall have the right to dispute such 

evaluations and the County and Lessee shall negotiate in good faith to resolve their 

difference with respect to the market rent. If after such good faith negotiations, the County 

and Lessee are unable to resolve their differences. Lessee shall have the option to terminate 

this Lease by giving three (3) months prior written notice to the County of Lessee's exercise 

of such right. [FAA Exhibit 1, Item 1, exh. 4, pp. 13-14; see also Item 6, exh. E] 

The 2005 Avitat Lease included a VRFF provision, requiring Avitat to use reasonable efforts to 

cause FBO customers to comply with the voluntary program and to distribute mformation to users 

expressing the need to understand the concerns of the local community. [FAA Exhibit 1, Item 6, 

exh. E, p. 38] In 2005 and 2006, two other Large GA FBOs on the Airport also signed leases with 

the County that included similar VRFF provisions. [FAA Exhibit 1, Item 6, exhs. G, p. 21 & H, 

P-24] 

Prior to Avitat's signing of the 2005 Avitat Lease, it had pursued the possibility of expansion at 

the Airport by purchasing Westmr in 2003. On May 1, 2003, Avitat wrote to Larry Salley, 

County Transportation Commissioner, raising the prospect that Avitat may purchase Westair and 

seeking 'appropriate approvals' from the County for the fransaction." [FAA Exhibit 1, Item 6, 

exh- GG] On January 30,2006, Avitat increased its leasehold significantiy by assuming adjacent 

hangar and apron space fix)m General Electric with the County's approval. [FAA Exhibit 1, Item 

6, exh. F] 

On August 29,2006, Westair wrote to Peter Scherrer, Asst. HPN Manager, re-visiting, word-forword the March 14, 2005 letter requesting major modifications to Westair's Lease, including 

expanded jet fueling ability for Westair. [FAA Exhibit 1, Item 1, exh. 30] [See Also, FAA Exhibit 

1, Item 1, exhibit 28, and Item 6, exh. LL] 

On January 11,2007, Salvatore J. Carrera, County Economic Development, Real Estate, wrote to 

Alfr^ E. Donnellan, Panorama, rejecting Panorama's repeated request to modify its lease terms 

to allow Panorama more fiieedom to sell jet fuel at any location at the Airport "like Avitat may 

do"; to base heavier aircraft on its leasehold "like Avitat may do"; and to remove terms "light 

general aviation fixed base" from the Panorama Lease. The County expressed its answer to these 

requests, emphatically: 

Panorama requests the right to fuel aircraft at the airline terminal cmd other prime tenant's 

airport locations without restriction.... 

" As stated by the County, the transaction never occurred. [FAA Exhibit 1, Item 6, p. 18] 

Page 14 of 50 
WE CANNOT AGREE TO THIS REQUEST... 

Panorama requests that (the lease term restricting to 12 the number of aircraft weighing 

more than 12,500 lbs. that may be based on Panorama's leasehold) be lifted.... 

WE CANNOT AGREE TO THIS REQUEST.. 

Panorama Request: Remove from the Use Section of the Lease the words "light general 

aviation fixed base " and "at a minimum "from the paragraph that describes the minimum 

services offered.... 

The County will absolutely not agree to this request... [FAA Exhibit 1, Item 1, exh. 31, 

pp. 2-3 and Item 6, exhibit HH, pp. 2-3] 

V. APPLICABLE FEDERAL LAW AND FAA POLICY 

The federal role in civil aviation has been augmented by various legislative actions that authorize 

programs for providing federal funds and other assistance to local communities for the 

development of Airport facilities. In each such program, the Airport sponsor assumes certain 

obligations, either by contract or by restrictive covenants in property deeds and conveyance 

instruments, to maintain and operate its Airport facilities safely and efficiently and in accordance 

with specified conditions. Commitments assumed by Airport sponsors in property conveyance 

or grant agreements are important factors in maintaining a high degree of safety £ind efficiency in 

airport design, construction, operation and maintenance, as well as ensuring the public fair and 

reasonable access to the Airport. 

Title 49 U.S.C. § 47101, er seq., provides for federal airport financial assistance for the 

development of public-use auports under the Airport Improvement Program (AIP) established by 

the Aiiport and Airway Improvement Act of 1982, as amended. Titie 49 U.S.C. § 47107, et seq., 

sets forth assurances to which an airport sponsor agrees as a condition of receiving federal 

financial assistance. Upon acceptance of an AIP grant, the assurances become a binding 

contractual obligation between the airport sponsor and the federal government. The assurances 

made by airport sponsors in AIP grant agreements are important factors in maintaining a viable 

national airport system. 

Airport Sponsor Assurances 

As a condition precedent to providing airport development assistance under the Airport 

Improvement Program, under the Airport and Airway Improvement Act of 1982, now codified at 

49 U.S.C. § 47107, et seq., the Secretary of Transportation and, by extension, the FAA receives 

certain assurances from the airport sponsor. Titie 49 U.S.C. § 47107(a) sets forth the statutory 

sponsorship requirements to ^^Wch an airport sponsor receiving federal financial assistance must 

agree as a condition precedent to receiving such assistance. These sponsorship requirements are 

included in every Airport Improvement Program grant agreement. Upon acceptance, these 

assurances become a binding obligation between the airport sponsor and the federal government. 

The FAA has a statutory mandate to ensure that airport owners comply with these sponsor 

assurances.'^ FAA Order 5190.6A, Airport Compliance Requirements (FAA Order 5190.6A), 

'^ See, e.g., the Federal Aviation Act of 1958, as amended and recodified. Title 49 U.S.C. §§ 40101, 

40113,40114,46101,46104, 46105,46106,46110; and the Airport and Airway hnprovement Act of 

Page 15 of 50 
issued on October 2, 1989, provides the policies and procedures to be followed by the FAA in 

carrying out its legislatively mandated functions related to federally obligated airport owners' 

compliance with their sponsor assurances. The FAA considers it inappropriate to provide federal 

assistance for improvements to airports where the benefits of such improvements will not be 

fully realized due to inherent restrictions on aeronautical activities. The grant assurances 

relevant to the issues raised in the Complaint are the following: 

Grant Assurance 22. Economic Nondiscrimination 

The owner of any airport developed with federal grant assistance is required to operate the 

airport for the use and benefit of the public. Federal grant assurance 22, Economic 

Nondiscrimination, (Assurance 22) deals vrith both the reasonableness of airport access and the 

prohibition of adopting unjustiy discriminatory conditions as a potential for limiting access. 

Assurance 22 of the prescribed sponsor assurances implements the provisions of 49 U.S.C. § 

47107(a)(1) through (6), and requires, in pertinent part: 

[The airport owner or sponsor] will make the airport available as an airport for public use 

on reasonable terms and without imjust discrimination to all types, kinds and 

classes of aeronautical activities, including commercial aeronautical 

activities offering services to the public at the airport. [Assurance 22(a).] 

Each fixed-base operator at the airport shall be subject to the same rates, fees, rentals, and 

other charges as are uniformly applicable to all other fixed-base operators making the 

same or similar uses of such airport and utilizing the same or similar facilities. 

[Assurance 22(c).] 

[The airport owner or sponsor] will not exercise or grant any right or privilege which 

operates to prevent any person, firm, or corporation operating aircraft on the airport from 

performing any services on its own aircraft with its own employees (including but not 

limited to maintenance, repair, and fueling) that it may choose to perform. [Assurance 

22(0.] 

The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to 

be met by all users of the airport as may be necessary for the safe and efficient operation 

of the airport. [Assurance 22 (h).] 

The sponsor may prohibit or limit any given type, kind or class of aeronautical use of the 

airport if such action is necessary for the safe operation of the airport or necessary to 

serve the civil aviation needs of the public. [Assurance 22(i).] 

Subsection (h) qualifies subsection (a), and subsection (i) represents an exception to subsection 

(a) to permit the sponsor to exercise control of the airport sufficient to preclude unsafe and 

inefficient conditions that would be detrimental to the civil aviation needs of the public. 

1982, as amended and recodified. Title 49 U.S.C. §§ 47105(d), 47106(d), 47107(k), 47107(1), 47111(d), 

47122. 

Page 16 of 50 
In all cases involving restrictions on airport use imposed by airport owners for safety and 

efficiency reasons, the FAA will make the final determination on the reasonableness of such 

restrictions when those restrictions deny or limit access to, or use of, the airport. [FAA Order 

5190.6A, Section 4-8.] 

Assurance 23, Exclusive Rights 

Federal grant assurance 23, Exclusive Rights, (Assurance 23) implements the provisions of 49 

U.S.C. §§ 40103(e) and 47107(a)(4), and requires, in pertinent part, that the owner or sponsor of 

a federally obligated airport: 

"...will permit no exclusive right for the use of the airport by any persons 

providing, or intending to provide, aeronautical services to the public." 

"...will not, either directly or indirectly, grant or permit any person, firm, or 

corporation, the exclusive right at the airport to conduct any aeronautical 

activities..." 

"...will terminate any exclusive right to conduct an aeronautical activity now 

existing at such an airport before the grant of any assistance under Title 49 United 

States Code." 

An exclusive right is defined as a power, privilege, or other right excluding or debarring another 

from enjoying or exercising a like power, privilege, or right. An exclusive right can be conferred 

either by express agreement, by the imposition of unreasonable standards or requirements, or by 

any other means. Such a right conferred on one or more parties, but excluding others from 

enjoying or exercising a similar right or rights, would be an exclusive right. [FAA Advisory 

Circular 150/5190-6, Exclusive Rights at Federally Obligated Airports, Appendix I (January 4, 

2007).] Advisory Circular 150/5190-6 also provides general information pertaining to FAA's 

prohibition on granting exclusive rights at federally obligated airports. 

In FAA Order 5190.6A, the FAA discusses its exclusive rights policy and broadly identifies 

aeronautical activities as subject to the statutory prohibition against exclusive rights. While 

public-use auports may impose qualifications and minimum standards upon those who engage in 

aeronautical activities, FAA has taken the position that the application of any unreasonable 

requirement or any standard that is applied in an unjustly discriminatory manner may constitute 

the constructive grant of an exclusive right. Courts have found the grant of an exclusive right 

where a significant burden has been placed on one competitor that is not placed on another. [See 

e.g. Pompano Beach v FAA, 774 F2d 1529 (11* Cir, 1985).] An owner or sponsor is under no 

obligation, however, to permit aircraft owners to introduce onto the airport equipment, personnel, 

or practices which would be unsafe, unsightly, detrimental to the public welfare, or which would 

affect the efficient use of airport facilities. [See FAA Order 5190.6A, Section 3-9 (e).] 

Leasing all available airport land and improvements plaimed for aeronautical activities to one 

enterprise will be construed as evidence of intent to exclude others unless it can be demonstrated 

that the entire leased area is presently required and will be immediately used to conduct the 

activities contemplated by the lease. [See FAA Order 5190.6A, Sectfon 3-9(c).] 

Page 17 of 50 
FAA Order 5190.6 A provides additional guidance on the application of the statutory prohibition 

against exclusive rights and FAA policy regarding exclusive rights at public-use airports. [See 

FAA Order 5190.6A, Chapter 3.] 

Assurance 24, Fee and Rental Structure 

Federal grant assurance 24, Fee and Rental Structure, (Assurance 24) addresses fees the owner 

or sponsor levies on airport users in exchange for the services the airport provides. 

Section 47107(a)(13) of 49 U.S.C. requires, in pertinent part, that the owner or sponsor of a 

federally obligated airport "will maintain a fee and rental structure for the facilities and services 

being provided to airport users which will make the airport as self-sustaining as possible under 

the circumstances existing at that particular airport." In addition, under § 47107(a), fees levied 

on aeronautical activities must be reasonable and not unjustly discriminatory. 

Assurance 24 satisfies the requirements of § 47107(a)(13). It provides, in pertinent part, that the 

owner or sponsor of a federally-obligated airport agrees that it will maintain a fee and rental 

structure consistent with assurances 22, Economic Nondiscrimination, and 23, Exclusive Rights. 

The airport owner or sponsor agrees to establish a fee and rental structure that will make the 

airport as self-sustaining as possible under the circumstances existing at the particular airport, 

taking into account such factors as the volume of fraffic and economy of collection. The intent 

of the assurance is for the airport operator to charge fees that are sufficient to cover as much of 

the airport's costs as is feasible. 

Moreover, FAA Order 5190.6A states that the owner or sponsor's obligation to make an airport 

available for public use does not preclude the owner or sponsor from recovering the cost of 

providing the facility. The owner or sponsor is expected to recover its costs through the 

establishment of fair and reasonable fees, rentals, or other user charges that will make the airport 

as self-sustaining as possible under the circumstances existing at the particular jiirporL [See 

FAA Order 5190.6A, Section 4-14(a).] 

The FAA Airport Compliance Program 

The FAA discharges its responsibilities for ensuring airport owners' compliance with their 

federal obligations through its Airport Compliance Program. The FAA's airport compliance 

efforts are based on the contractual obligations an airport owner accepts when receiving federal 

grant funds or the transfer of federal property for airport purposes. These obligations are 

incorporated in grant agreements and instruments of conveyance in order to protect the public's 

interest in civil aviation and to ensure compliance with federal laws. 

The FAA Airport Compliance Program is designed to ensure the availability of a national system 

of safe and properly maintained public-use airports operated in a manner consistent with the 

airport owners' federal obligations and the public's investment in civil aviation. 

Page 18 of 50 
The Airport Compliance Program does not control or direct the operation of airports. Rather, it 

monitors the administration of the valuable rights pledged by airport sponsors to the people of 

the United States in exchange for monetary grants and donations of federal property to ensure 

that the public interest is being served. 

FAA Order 5190.6A sets forth policies and procedures for the FAA Airport Compliance 

Program. The Order is not regulatory and is not confrolling with regard to airport sponsor 

conduct. Rather, it establishes the policies and procedures to be followed by FAA personnel in 

carrying out the FAA's responsibilities for ensuring airport compliance. It provides basic 

guidance for FAA personnel in interpreting and administering the various continuing 

commitments made to the United States by airport owners as a condition of receiving a grant of 

federal funds or the conveyance of federal property for airport purposes. The Order analyzes the 

veirious obligations set forth in the standard airport sponsor assurances, addresses the nature of 

those assurances, addresses the application of those assurances in the operation of public-use 

airports, and facilitates interpretation of the assurances by FAA p>ersonnel. 

The FAA Compliance program is designed to achieve voluntary compliance with federal 

obligations accepted by owners and/or operators of public-use airports developed with FAAadministered assistance. Therefore, in addressing allegations of noncompliance, the FAA will 

make a determination as to whether an airport sponsor is currently in compliance with the 

applicable federal obligations. Consequently, the FAA will consider the successful action by the 

airport to cure any alleged or potential past violation of applicable federal obligation to be 

grounds for dismissal of such allegations. [See e.g. Wilson Air Center v. Memphis and Shelby 

Countv Airport Authority, FAA Docket No. 16-99-10, (August 30,2001) (Fin^ Decision and 

Order) (Wilson)] 

Enforcement of Airport Sponsor Assurances 

FAA Order 5190.6A, Airport Compliance Requirements, dated October 2, 1989, covers all 

aspects of the airport compliance program except enforcement procedures. 

Enforcement procedures regarding airport compliance matters may be found at FAA Rules of 

Practice for Federally Assisted Airport Enforcement Proceedings (14 CFR Part 16). These 

enforcement procedures were published in the Federal Register (61 FR 53998, October 16, 1996) 

and became effective on December 16,1996. 

The Complaint and Appeal Process 

Right to File the Formal Complaint 

Pursuant to 14 CFR, Part 16, § 16.23, a person directly and substantially affected by any alleged 

noncompliance may file a complaint with the FAA. The Complainant shall provide a concise but 

complete statement of the facts relied upon to substantiate each allegation. The complaint shall also 

describe how the Complainant was directly and substantially affected by the things done or omitted 

by tile Respondents. [14 CFR, Part 16, § 16.23(b)(3,4).] 

If, based on the pleadings, there appears to be a reasonable basis for fiirther investigation, the FAA 

will investigate the subject matter of the complaint. In rendering its initial determination, the FAA 

Page 19 of 50 
may rely entirely on the complaint and the responsive pleadings provided. Each party shall file 

documents that it considers sufficient to present all relevant facts and arguments necessary for the 

FAA to determine whether the sponsor is in compliance. [14 CFR, Part 16, § 16.29.] 

The proponent of a motion, request, or order has the burden of proof. A party who has asserted an 

affirmative defense has the burden of proving the affirmative defense. This standard burden of proof 

is consistent with the Administrative Procedure Act (APA) and federal case law. The APA provision 

states, "[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of 

proof" 5 U.S.C. § 556(d). [See also. Director, Office of Worker's Compensation Programs, 

Department of Labor v. Greenwich Collieries. 512 US 267, 272 (1994); Air Canada et al. v. 

Department of Transportation. 148 F3d 1142, 1155 (DC Cir, 1998).] Title 14 CFR § 16.229(b) is 

consistent with 14 CFR §16.23, which requires the complainant to submit all documents then 

available to support his or her complaint. Similarly, 14 CFR § 16.29 states that "[e]ach party shall 

file documents that it considers sufficient to present all relevant facts and argument necessary for the 

FAA to determine whether the sponsor is in compliance." 

Right to Appeal the Director's Determination 

A party to this decision adversely affected by the Director's Determination may file an appeal with 

the Associate Administrator within 30 days after the date of service of the initial determination. If no 

appeal is filed within the time period specified, the Director's 

Determination becomes the final decision and order of the FAA without fiirther action. A 

Director's Determination that becomes final because there is no administrative appeal is not 

judicially reviewable. [14 CFR, Part 16, § 16.33] 

Part 16 requires all relevant facts to be presented in the complaint documents. [14 CFR, Part 16, § 

16.23(b)(3).l New allegations or issues should not be presented on appeal. Review by the Associate 

Administrator is limited to an examination of the Director's Determination and the Administrative 

Record upon which such determination was based. Under Part 16, Complainants are required to 

provide with the complaint and reply all supporting documentation upon which it relied to 

substantiate its claims. Failure to raise all issues and allegations in the original complaint documents 

may be cause for such issues and allegations to be deemed waived and not reviewable upon appeal. 

This is consistent with the Supreme Court's recognition that courts may require administrative issue 

exhaustion as a general rule because it is usually appropriate under an [administrative] agency's 

practice for contestants in an adversarial proceeding before it to develop fully all issues there. The 

Court concluded that where parties are expected to develop the issues in an adversarial administrative 

proceeding, the rationale for requiring issue exhaustion is at its greatest. [See Sims v. Apfel. 530 US 

103,108-110 (2000) citing Hormel v. Helvering. 312 US 552 (1941) and US v. LA Tucker Truck 

Lines, 344 US 33, (1952).] 

FAA's Responsibility with Regard to an Appeal 

Pursuant to 14 CFR, Part 16, § 16.33, the Associate Administrator will issue a final decision on 

appeal from the Director's Determination, without a hearing, where the complaint is dismissed after 

investigation. 

In such cases, it is the Associate Administrator's responsibility to determine whether (a) the findings 

of fact made by the Director are supported by a preponderance of reliable, probative, and substantial 

evidence, and (b) each conclusion of law is made in accordance with applicable law, precedent, and 

Page 20 of 50 
public policy. [See e.g. Ricks v Millington Municipal Airport, FAA Docket No. 16-98-19, 

(December 30, 1999) (Final Decision and Order) page 21 and 14 CFR, Part 16, § 16.227.] 

ISSUES ON APPEAL 

In its Appeal, Avitat raises the following five (5) issues: 

1. Whether the Director's Determination is supported by a preponderance of reliable, 

probative, and substantial evidence or proper conclusions of law due to the fact that it 

is based on distinguishable precedent, incorrect assumptions, misreading of relevant 

documents, and omission of critical facts? [FAA Exhibit 1, Item 13, page 16] 

2. Whether the Airport Manager allowing Panorama and Westair to sell jet fuel to 

transient aircraft imder 50,000 lbs maximum gross take-off weight constitutes 

umeasonable and/or discriminatory terms and/or conditions such that the County's 

grant assurances are violated? [FAA Exhibit 1, Item 13, page 16] 

3. Whether the County, by providing subsidies to Panorama and Westair and allowing 

them to sell jet fuel to transient aircraft under 50,000 lbs MGTOW provided more 

favorable treatment in a maimer that unjustly discriminates against Avitat and the 

other Jet FBOs in violation of Federal grant assurance 23? [FAA Exhibit 1, Item 13, 

page 16] 

4. Whether the County burdened Avitat and the other Jet FBOs with the cost of 

economically supporting Panorama and Westair and whether this constitutes unjust 

economic discrimination with regard to retail aircraft services and constructively 

grants an exclusive right on the Airport in violation of grant assiuance 23 and Federal 

law? [FAA Exhibit 1, Item 13, page 16] 

5. Whether the County has failed to maintain an aeronautical rent schedule that makes 

the Airport as self-sustaining as possible under the circumstances existing at the 

Airport, by providing more favorable financial treatment to Panorama and Westair in 

violation of grant assurance 24? [FAA Exhibit 1, Item 13, page 16] 

Although Avitat raises the issues above, its appeal does not follow the numerical structure. In 

the FAA's analysis below, the Associate Administrator has attempted to organize the issues in 

the general framework identified above. 

VI. ANALYSIS AND DISCUSSION 

The Director's Determination found that the County did not violate Grant Assurances 22, 

Economic Nondiscrimination; 23, Exclusive Rights; and 24, Fee and Rental Structure, by 

maintaining an existing differential in rights, restrictions, responsibilities, and rents between two 

classes of FBOs at the Airport 

On appeal from a Director's Determination, Avitat must demonstrate that the Director erred by 

(1) making findings of fact that were not supported by a preponderance of reliable, probative. 

Page 21 of 50 
and substantial evidence, or (2) by making conclusions of law that were not in accordance with 

applicable law, precedent, and public policy. 

Avitat argues the Director's Determination fails to address Avitat's arguments. [FAA Exhibit 1, 

Item 13, p. 2] It alleges that the Director incorrectly assumes without substantial evidence that 

by giving Panorama and Westair the right to sell jet fiiel, the County's policy of providing 

economic protection for the light general aviation sector is achieved. [Id. at 4] 

Avitat argues that the County had 'blurred' the distinction between the two classes of FBOs by 

allowing Panorama and Westair to sell jet fuel in a manner and to a degree not contemplated in 

their 1999 leases; and thus, unjustly discriminates agmnst the jet FBOs when the grant of that 

right does not serve the Airport's public purpose of maintaining light generzil aviation at the 

airport. Specifically, Avitat asserts "(1) the Airport Manager has allowed Panorama and Westair 

to sell jet fiiel to transient aircraft under 50,000 lbs; (2) Panorama and Westair also receive 

subsidies from the County by paying substantially less-than-fair-market rental rates and by 

receiving the benefit of facilities paid for by PFCs; and (3) taken together, these two actions have 

blurred the distinction between the two classes of FBOs and altered the competitive environment 

at the Airport in a manner that favors Panorama and Westair over Avitat and the other Jet FBOs. 

The County's actions are, thus, unjustly discrimmatory and in violation of Grant Assurances 22, 

23 and 24." [FAA Exhibit 1, Item 13, page 2] 

The crux of Avitat's argument is dependent upon a violation of Grant Assurance 22. 

Avitat also argues that Part 16 does not contain a standard of review upon which the Associate 

Administrator may rely. 

A. STANDARD OF REVIEW. 

1. Whether the Director's Determination is supported by a preponderance of reliable, probative, 

and substantial evidence or proper conclusions of law due to the fact that it is based on 

distinguishable precedent, incorrect assumptions, misreading of relevant documents, and 

omission of critical facts? 

On Appeal, Avitat argues that 14 CFR Part 16 does not contain a standard of review for the 

Associate Administrator to rely upon when a party appeals the Director's Determination. Avitat 

argues, "the Associate Administrator must (a) review all of the pleadings and the record; (b) 

make his own fmdings of fact that are supported by a preponderance of reliable, probative, and 

substantial evidence; and (c) make, in accordance with applicable law, precedent, and public 

policy, his own conclusions of law. In arriving at his Final Decision and Order, the Associate 

Administrator must follow the Administrative Procedures Act (APA) and not give any deference 

to the findings of fact and conclusions of law contained in the Director's Determination." [FAA 

Exhibit 1, Item 13, page 19] 

The FAA applies the 'substantial evidence' standard of review to its Part 16 final agency 

decisions (FAD). As explamed in Airborne Flying Service, Inc. v. City of Hot Springs, 16-07-

06, Final Agency Decision (May 2,2008). 

Page 22 of 50 
Pursuant to 14 CFR, Part 16, § 16.33, the Associate Administrator issues a final decision 

on appeal from the Director's Determination, without a hearing, where the complaint is 

dismissed after investigation. 

In such cases, it is the Associate Administrator's responsibility to determine whether (a) 

the findings of fact made by the Director are supported by a preponderance of reliable, 

probative, and substantial evidence, and (b) each conclusion of law is made in accordance 

with applicable law, precedent, and public policy. [ See e.g. Ricks v Millington Municipal 

Airport, FAA Docket No. 16-98-19, (December 30, 1999) (Final Decision and Order) 

page 21 and 14 CFR § 16.227.] 

Although Part 16 does not specify the standard of review generally, it does establish the standard 

of proof for administrative hearings. Title 14 C.F.R. § 16.227, "Standard of proof," states that 

the "hearing officer shall issue an initial decision or shall rule in a party's favor only if the 

decision or ruling is supported by, and in accordance with, reliable, probative, and substantial 

evidence contained in the record and is in accordance with law." Section 16.227 is persuasive of 

the standard of review applicable to review of Director's Determinations. See also, 14 CFR 

§16.241(c) ("If an appeal is filed, the Associate Administrator reviews the entire record and 

issues a final agency decision and order v^dthin 30 days of the date of the reply.") 

The 'substantial evidence' standard of review is that applied by the federal courts of ^peals in 

their review of FAA final agency decisions. For example, in Flamingo Express, Inc. v. FAA. 

536 F.3d 561, 567 (6* Cir. 2008), the court explained tiiat "[t]he Federal Aviation Act dictates 

that findings of fact made by the FAA are "conclusive" if supported by substantial evidence ... 

The Federal Aviation Act is silent as to the standard that an appellate court must employ in 

reviewing the FAA's nonfactual findings, so "we must look to the Administrative Procedure Act 

to supply the appropriate standard of review. Although questions of law are reviewed de novo, 5 

U.S.C. § 706, "we must give some deference to the agency because it is charged with 

administering the statute." Flamingo. 536 F.3d at 567. Under the APA, "the FAA's 

interpretation of its own regulations "must be given controlling weight unless it is 'plainly 

erroneous or inconsistent with the regulation.' " All other findings and conclusions are reviewed 

to determine whether they are "arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance witii law." See also Wilson Air Center v. FAA, 372 F.3d 807 (6'*' Cir. 2004), 

Penobscot Air Services, Ltd. v. FAA, 164 F.3d 713 (1' ' Cir. 1999). 

The Associate Administrator does in fact conduct a review of the Director's Determination and 

record de novo but is required to determine if the Director's Determination was supported by a 

preponderance of reliable, probative, and substantial evidence, and was consistent with 

applicable law, precedent, and FAA policy. Again, this is the standard applied by the courts of 

appeals in their review of FAA final agency decisions. Under Part 16, the Associate 

Administrator need not "make his own findings of fact." Based upon Flamingo and other Part 16 

court of appeals precedent, it is enough that the Associate Administrator make certain that the 

findings of fact made by the Director are supported by a preponderance of reliable, probative, 

and substantial evidence. Finally, Avitat argues that "[i]n arriving at his Final Decision and 

Order, the Associate Administrator must follow the Adminisfrative Pfbcedures Act (APA) and 

Page 23 of 50 
not give any deference to the findings of fact and conclusions of law contained in the Director's 

Determination." This argument has no merit. As indicated above, based upon the Federal 

Aviation Act, the courts of appeals hold that findings of fact are to be evaluated based upon a 

substantial evidence standard. This standard is deferential and "gives the agency the benefit of 

the doubt." Flamingo. 536 F.3d at 567. There is no reason why the Associate Administrator 

should not be able to utilize a similar standard. For nonfactual findings, it is appropriate to apply 

an APA standard (i.e., de novo review), however, "[u]nder the Adminisfrative Procedure Act [], 

the FAA's interpretation of its own regulations "must be given controlling weight unless it is 

'plainly erroneous or inconsistent with the regulation." Flamingo, 536 F.3d at 567.. The APA 

itself provides for deference to agency interpretations of agency regulations. Again, there is no 

reason for the Associate Administrator not to be able to provide similar deference to nonfactual 

findings. Concerning review of FAA's "other agency action, findings, and conclusions," the 

APA requires the reviewing court to hold them unlawftil and set them aside if they are found to 

be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 

Penobscot, 164 F.3d at 719. 

In this case, on an appeal from a Director's Determination, the Associate Administrator for 

Airports appropriately reviewed the entire record to determine whether the Director's findings 

are supported by a preponderance of reliable, probative, and substantial evidence, and was 

consistent with applicable law, precedent, and FAA policy. 

B. GRANT ASSURANCE 22. ECONOMIC NONDISCRIMINATION 

The issues where Avitat alleges the Director committed error are addressed below. 

The basic issue is whether the County is providing more favorable treatment to certain Fixed 

Base Operators (FBOs) with regard to retail aircraft services that vmjustly discriminates against 

Avitat in violation of Federal Grant Assurance 22, Ecorwmic NonDiscrimination (Grant 

Assurance 22). Avitat argues that by giving Panorama and Westair the right to sell jet fuel to 

transient aircraft under 50,000 lbs, combined with "subsidized" rent, the County is not protecting 

the light general aviation sector, but creating an economic advantage for Panorama and Westair 

over the other Jet FBOs and is therefore in violation of its obligations under Grant Assurance 

22.'^ 

Avitat states the Director's Determination fails to address this argument. [FAA Exhibit 1, Item 

13, pg. 2.] The Associate Administrator disagrees. The Director's Determination careflilly 

addressed the issues raised by Avitat in regard to its claims of economic non-discrimination on 

pages 20-36 of the Director's Determination. More specifically, the Director's Determination 

addressed the issues of preferential treatment with regard to restrictions on operations, 

preferential freatment with regard to a prior request for proposals for the LGA FBO leaseholds, 

and the question of reeisonableness under grant assurance 22.'^ 

" Avitat asserts that by paying substantially less than fair market rental rates and by receiving the benefit 

of facilities paid for by PFCs, Panorama and Westair are "subsidized" by the County. 

'•* The Director's Determination analyzed Avitat's allegations of non-discrimination in the context of 

similarly situated parties and equitable treatment. 

Page 24 of 50 
In addition, Avitat argues that its "charge of grant assurance violations goes to the inequitable 

treatment of Jet FBOs and the contravention of the County's policy of supporting light general 

aviation." [FAA Exhibit 1, Item 13, pg. 3.] 

The owner of any airport developed with federal grant assistance is required to operate the 

airport for the use and benefit of the public. Grant assurance 22, Economic Nondiscrimination, 

(Assurance 22) deals with both the reasonableness of airport access and the prohibition of 

adopting unjustly discriminatory conditions as a potential for limitmg access. 

In this case the County must make the airport available as an airport for public use on reasonable 

terms and without unjust discrimmation to all types, kinds and classes of aeronautical activities, 

including commercial aeronautical activities offering services to the public at the airport. 

[Assurance 22(a).] 

Each fixed-base operator at the airport shall be subject to the same rates, fees, rentals, and other 

charges as are uniformly applicable to all other fixed-base operators making the same or similar 

uses of such airport and utilizing the same or similar facilities, [emphasis added]. [See 

Assurance 22(c).] 

Avitat argues on appeal that (1) "...the Director does not discuss how Avitat's coming to terms 

with the County affects the other Jet FBO's rights and excuse[s] the County's imjustiy 

discriminatory actions vis-a-vie the other Jet FBOs...; (2) the Director relying on inapposite 

precedent...cited cases, whose [complainants] goals were to get a better deal....; (3) [objects] to 

the way the rights granted in [Panorama's or Westair's original 1999 leases] ...expanded over 

tune, away from ....light general aviation...; and (4) [the Director erred making] certmn 

assumptions concerning Avitat's leases which were not in the Record and in fact not correct and 

then drew conclusions from those assumptions." [FAA Exhibit 1, Item 13, page 19-20.] 

1. Whether The Director Committed Error Because Avitat Does Not Believe The Director 

Sufficiently Addresses How Avitat's Coming To Terms With The County Affected The 

Other Jet FBO's Rights. 

Avitat states its ".. .complaint concerns the effect of the County's discrimination against the class 

of Jet FBOs of which it is a part... [and] [t]he fact that Avitat came to terms with tiie County in 

2005 and 2006 on its leases has no bearing on whether the County has unjustly discriminated 

against Avitat and the other Jet FBOs ...by ...allowing Panorama and Westair to sell jet fuel to 

transient aircraft under 50,000 lbs." [FAA Exhibit 1, Item 13, page 20] Avitat also states that 

those lease negotiations do not exonerate the Airport Management's discriminatory behavior 

against the other Jet FBOs' individual rights or their rights as a class. [FAA Exhibit 1, Item 13, 

page 21] 

Avitat implies it is representative of a class of complainants. The Respondent correctly points 

out in its Reply to Appeal, "The rights of the other jet [sic] FBO's, or any other FBO for that 

matter, are not at issue in this proceeding. Avitat, as the Complainant in this proceeding, 

represents only itself and does not stand in the shoes of any other tenant or FBO at HPN as a 

class representative." [FAA Exhibit 1, Item 14, page 7] - * 

Page 25 of 50 
The Associate Administrator does not see any other names alongside Avitat's or listed on the 

pleadings. None of the other airport FBOs have filed Part 16 complaints or joined in this 

proceeding. Regardless, the Director's Determination's analysis includes discussion generally 

applicable to all FBOs at the Airport and the County's legitimate two-clziss system of FBOs. 

[FAA Exhibit 1, Item 16 pgs. 21, 25-30, 31-35.] The Director properly did not make findings 

specific to the other FBOs, or as to how other entities at the Airport were affected by allegations 

brought by Avitat. Such conduct would have been beyond the scope of Part 16 and the specific 

investigation in this instant case.'^ 

To the extent that Avitat came to terms with the Coimty in 2005 and 2006 in regard to its own 

leases, the coming to terms has no bearing on whether the County unjustly discriminated against 

Avitat when Westair and Panorama perform in accordance with their leases. Avitat is a 

voluntary party to its lease and the issue turns on whether the FBOs are similarly situated. 

Avitat argued that Panorama and Westair provide substantially the same types of services as 

those currently provided by Avitat and that federal requirements would subject Avitat to the 

same rates, fees, rentals and other charges of the LGA FBOs. [FAA Exhibit 1, Item 1, pg. 20-21.] 

Avitat also provided exhibits which demonstrate the comparative services provided by all FBOs 

at the airport. [FAA Exhibit 1, Item 1, exhs. 4, 5,6, 22 and 23; see also summary chart at Item 

16, pg. 23.] Among those documents were the leases. After review, the FBO leases also are 

specific to the FBO rights and restrictions. [FAA Exhibit 1, Item 1, exhibit 4, 5, 6 and Item 6, 

exhibits A, C, E, F, G, H] Avitat does not have any T-hangar space or tie-down space. Westair 

and Panorama cannot sell fuel to aircraft over 50,000 lbs. Westair and Panorama are required to 

provide AvGas and service to the small general aviation community, Avitat is not subject to 

these terms. Avitat coming to terms with the County in 2005 and 2006 has no direct bearing on 

Westmr and Panorama's lease responsibilities and restrictions. The Associate Adminisfrator 

notes that the Director pointed out that Avitat appears to have been aware of Westair and 

Panorama's terms prior to entering its own lease. [FAA Exhibit 1, Item 16 at 27.] At one point, 

Avitat was interested in purchasing Westair. Arguably, it is possible that Avitat used its 

knowledge in its negotiation of its terms. That said, Avitat's negotiations in 2005 and 2006 are 

wholly independent of whether the FBOs are similarly situated or require the same treatment. 

The documentation in the record is clear, and supports the Director's analysis. Avitat has not 

shown it makes the same or similar use of the Aiiport or that it utilizes the same or similar 

facilities. Thus, Avitat is not similarly situated to Westair or Panorama. The County is not 

required to freat these FBOs the same. [See FAA Exhibit 1, Items 16, page 30-31.] [See also 

discussion below regarding case precedent.] 

The Associate Adminisfrator finds the Director reasonable in his refusal to engage in speculation 

as to how actions taken by the Coimty specifically affected other entities at the Airport. 

Speculation is no substitute for fact, and thus the Director did not err 'm his refusal to base his 

findings on speculative consideration of third parties in making his determination that County 

did not violate Grant Assurance 22. 

" The other FBOs situated at the airport were not parties to this case, had ne opportunity to present 

evidence or be heard on the issues examined herein. 

Page 26 of 50 
2. Avitat Alleges That The Precedent Relied Upon In The Director's Determination Does Not 

Apply To The Case At Hand. 

In its Appeal, Avitat argues that the Director, "relying on inapposite precedent, analogized 

Avitat's Complaint to those of the complainants in the Director's cited cases, whose goals were 

to get a better deal than originally agreed to by renegotiating their own leases. Avitat, however, 

is not complaining about its own leases in this action." [FAA Exhibit 1, Item 13, page 19.] 

Avitat attempts to distinguish the case at bar and argues that, 

The Director relies primarily on four cases. Adventure, Aerodynamics, Penobscot, and 

Santa Monica Airport Authority .. .There is no connection between the precedent cited 

and the Director's position. The precedent cited by the Director refers to situations where 

an FBO failed to take advantage of an opportunity to negotiate for itself a lease with as 

advantageous terms as those in its competitor's leases, and then developed a case of 

buyer's remorse... Indicative of the Director's error of analysis is his emphasis on a 

sentence in Penobscot that states,... [t]he court reasoned that a commercial enterprise 

cannot negotiate a rental agreement that requires a particular payment and rate schedule, 

commence doing business and earning profits, and then complain that the deal was 

unfair.'^ [FAA Exhibit 1, Item 13, pages 21-23] 

Avitat also argues that. 

Since the precedent the Director relies on almost exclusively is distinguishable, that 

precedent must be discounted as support for the Director's Determination. By basing his 

decision on the distinguishable precedent, the Director has focused on Avitat's action 

with respect to its negotiation of its 2005 and 2006 leases, when in fact the Director 

should have focused on the unjustly discriminatory effect of the Airport Management's 

actions in entering into arrangements with Panorama and Westair that go far beyond the 

circumscribed right to sell jet fuel originally allowed. [FAA Exhibit 1, Item 13, page 23-

24.] 

In their Reply to the Appeal, the County responded, "Notwithstanding Avitat's unsubstantiated 

claims to the contrary, the Director's reliance on prior part 16 precedent was entirely appropriate. 

Avitat's argument that the Director erroneously relied on precedent is b£ised on the faulty 

assumption that, to be relevant, precedent must have facts identical to the instant case. The law 

is not, however, so clean and simple. No two cases are identical, and application of precedent is 

based on analogy, not exact matches. That Avitat may disagree with the precedent relied upon 

'* Avitat refers to the following cases in its appeal at pg. 21: 

Aerodynamics of Reading, Inc, v. Reading Regional Airport Authority, FAA Docket No. 16-00-03,(Final 

Decision and Order) (July 23, 2001), Adventure Aviation v. City of Las Cruces, NM, FAA Docket No. 16-

01-14 (Final Decision and Order) (September 15, 2003), Penobscot Air Service, Ltd, v. County of Knox 

Board of Commissioners, FAA Docket No. 16-97-04 (Final Decision and Order) (January 20, 1997), 

Santa Monica Airport Association v. City of Santa Monica, FAA Docket No? 16-99-21 (Find Decision 

and Order) (February 4, 2003) 

Page 27 of 50 
by the Director does not mean that the Director erred in applying such precedent." [FAA Exhibit 

1, Item 14, pages 7-8] 

Avitat is nustaken. The Director's Determination discussed previous Part 16 cases analogous to 

this Complaint. The Director did so in part as a response to the County's use of these ceises. The 

Director noted, "The County presents numerous part 16 precedents that support the contention 

that the parties in this case may not be similarly situated for the purpose of determining unjust 

discrimination... Avitat, agreed to terms that differed from those of a competitor already on the 

airport." [FAA Exhibit I, Item 16, DD, pg. 24.] 

The Director also used Part 16 precedent to illustrate two points at issue in this Complaint: (1) that 

the LGA FBOs and the Jet FBOs are not similarly situated; and (2) that an entity cannot go back in 

time to renegotiate already existing leases. It is also important to point out that the burden falls on 

Avitat to show that it is similarly situated to the other FBOs. Aerodynamics supports this proposition 

and Avitat has not satisfied that burden. The Director's use of precedent, particularly Adventure, 

summarizes prior FAA policy regarding a similar situation in circumstances of past negotiated 

agreements. Long-standing FAA policy and precedent that have withstood judicial challenge 

establish that grant assurance 22 does not require that airport sponsors charge all FBOs identical 

lease rates in order to avoid unjust economic discrimination. [FAA Exhibit 1, Item 16, page 25] 

Aeordynamics, Penobscot, andSMAA recognize the airport's ability to distinguish between lessees. 

The rights and restrictions applicable to Westair and Panorama were in place prior to Avitat coming 

to terms with the County in 2005 and 2006. Contrary to Avitat's assertion on page 24 of its appeal, 

the leases provided the FBOs with the right to sell jet fuel under limited circumstances in the future. 

[FAA Exhibit I, Item 1, exhs.5 & 6.] Those leases were not up for negotiation by a third party and 

Avitat makes no such claim. Avitat knew of the other FBO lease terms and differences at the time it 

entered its own leases. The distinction in the FBOs and their purpose is clear. [Id. see also FAA 

Exhibit 1, Item 16,pg. 28.] 

The Director's Determination also acknowledged that differences in business model, strategy, 

negotiation choices and aggressiveness can alone result in dissimilarity. [FAA Exhibit I, Item 16, 

pg. 27.] "Avitat's argument—that the LGA FBOs' focus on competing with Avitat, functionally— 

makes them similarly situated is unconvincing and unsupported by Part 16 precedent. Rather, Part 16 

precedent supports the conclusion that lease terms, negotiations, agreements and timing of 

agreements matter when determining similarly situated competitors. As stated in Adventure, 

Aerodynamics, Penobscot, and SMAA, agreeing to differences in rights, restrictions, 

responsibilities and rents in agreements among existing FBOs necessarily supports the 

conclusion that the parties are not similarly situated for the purposes of finding imjust economic 

discrimination. This is an important concept, because no grant assurance protects an 

aeronautical service provider from more effective competition." [FAA Exhibit 1, Item 16 page 

30] 

The Director recognized the differences between the FBOs here and explored what was 

equitable. [FAA Exhibit 1, Item 16 pg. 28-31.] The precedent in Aerodynamics, Adventure 

Aviation, Penobscot, and Santa Monica Airport Association as applied by the Director was on 

point in the case at hand. The Director did not rely on these previous Determinations to the 

extent that the facts of this instant Complaint were ignored. Although Avitat disagrees with the 

Director's analysis and findings in this case, the case precedent was,applied appropriately in light 

of the facts and specific circumstemces related to this Complaint The conclusions made by the 

Page 28 of 50 
Director stand on the specific analysis of the facts and supporting documentation presented 

therein and do not simply rest on precedent. Accordingly, the Associate Administrator finds that 

the Director's Determination did not err in the application of case precedent. 

3. Did The Director Err By Making Certain Assumptions Concerning Avitat's Leases 

Which Avitat Alleges Were Not In The Record. 

Avitat argues on Appeal that, "The Director relies heavily on the proposition that Avitat failed to 

address the issues raised in its Complaint in its lease negotiations in 2005 and 2006. In doing so, 

the Director assumes a reasonably level playing field in which such issues could be negotiated. 

Such an assumption is not supported by any facts in the record.. .The Director also assumes that 

Avitat was aware of the "rights, restrictions and responsibilities" of the LGA FBOs in the context 

of their dispensing jet fuel at the time it entered into its 2005 and 2006 leases. While Avitat was 

aware that LGA FBOs were selling jet fiiel, it did not have knowledge of the September 20, 

2001, letter from the Airport Manager granting permission to Panorama and Westair to sell jet 

fuel or the details of the LGA FBOs' 'rights, restrictions and responsibilities' at the time it was 

negotiating its leases." [FAA Exhibit 1, Item 13, page 25.] 

The County's Reply states, "The Director's fmding that Avitat was aware of the LGA FBOs 

rights, restrictions and responsibilities was based upon a preponderance of evidence in the 

record, including facts showing that Avitat admits it knew the LGA FBOs were selling jet fuel 

since 2001; that Avitat attempted to acqiure Westafr with knowledge of Westair's business 

operations; and that Avitat is located adjacent to the LGA FBOs and can see the type and manner 

of activity occurring on the LGA FBO's premises. Thus, contrary to Avitat's assertions in its 

Appeal, the Director appropriately relied on the record to support his Determination and did not 

make any 'assumptions' that granting the LGA FBOs a limited right to sell jet fuel would help 

achieve the County's policies of providing adequate, cost-effective facilities for light general 

aviation." [FAA Exhibit 1, Item 14, page 9.] 

In the Determination, the Director stated, "...Avitat agreed to differences in rights, restrictions, 

responsibilities and rent between the two different classes of FBOs at the Airport in its 2005 Avitat 

Lease. This agreement makes these differences sufficient to make Avitat dissimilarly situated to the 

LGA FBOs, in part because Avitat has not and is not requesting similar treatment to the LGA FBOs 

from the County, and is not seeking access to additional aeronautical business, but is only seeking a 

limitation on existing aeronautical businesses (the LGA FBO) whose agreements existed before the 

Complainant's current agreement." [FAA Exhibit 1, Item 16, page 30] 

In the Determination, the Director created a table from the pleadings in this case that identified the 

differences between the LGA FBOs and Avitat's lease. The table compared the services each class 

of FBO was required to provide; what services were permitted, weight restrictions, and the square 

footage of the leased premises. The Director also cited a quote from Avitat that went into detail on 

the rents paid by Avitat and the LGA FBOs, permit fees and the amount of percentage of gross sales 

that each entity was required to pay the County. [FAA Exhibit 1, Item 16, page 23] The detail 

provided by Avitat was sufficient for the Director to make a logical assumption that Avitat had in 

depth information about the LGA FBO leases. 

Page 29 of 50 
However, the primary issues do not rest on when Avitat became aware of the lease terms of the LGA 

FBOs. Avitat negotiated its own lease agreement with the County in good faith and did not object to 

its own lease terms in the Complaint. The material fact in the instant Complaint is that the two 

classes of FBOs are not similarly situated by agreement. The Director devoted several pages of 

analysis to the question of whether Avitat and the LGA FBOs were similarly situated. The analysis 

concluded that Avitat and the LGA FBOs were purposefiilly dissimilar and therefore it was 

acceptable under the grant assurances for the County to have different terms for the rights, 

restrictions, responsibilities and rent for each. 

Long-standing FAA policy and precedent establish that grant assurance 22 does not require that 

airport sponsors charge all FBOs identical lease rates in order to avoid unjust economic 

discrimination. [FAA Exhibit 1, Item 16, page 25.] The fact that the LGA FBOs may have a market 

share of the jet fuel sales on the Airport, within the limitations of their lease agreements, does not rise 

to an unjustly discriminatory action toward Avitat.'^ 

Accordingly, the Associate Administrator finds that the Director did not err and did not make 

incorrect assumptions from the record. The record is straightforward in its identification of the 

differences between the two classes of FBO and there is no ambiguity in the Director's analysis 

which was based in relevant part on documentation provided by Avitat. 

4. Avitat Argues That No Connection Exists Between The Airport Manager's Grant Of The 

Right To Sell Jet Fuel And Avitat's Acceptance Oflts Lease Agreement In 2005 And 2006. 

Avitat claims "By Airport Management's permitting Panorama and Westair to sell jet fiiel to 

transient aircraft under 50,000 lbs, the County has allowed Panorama and Westair to establish 

and over time increase market share - market share which has been taken from the Jet FBOs. 

The County, thus, has dfrectly interfered in the market for jet fiiel, placing the subsidized 

Panorama and Westafr in dfrect competition with the Jet FBO... The County has favored 

Panorama and Westafr... " [FAA Exhibit 1, Item 13, page 26.] 

The County defends its decision to allow the LGA FBOs a limited authority to sell jet fiiel as 

reasonable given the cfrcumstances at the Airport because the LGA FBOs are more constrained 

than the Jet FBOs in terms of financial ability and ability to take business risks.'* [FAA Exhibit 

1, Item 6, pp 32-33.] Additionally, the County states "contrary to Avitat's assertion, the sale of 

jet fuel has always been 'allowed' by the LGA FBO lease, and it should be no surprise to Avitat 

that the LGA FBO were granted a right in accordance with the terms of their leases. Section 3.6 

of each lease contemplated that each LGA FBO could be granted an unqualified 'right to sell jet 

fiiel' if their percentage of based, small GA afrcraft that used jet fiiel exceeded 10 percent... the 

contemplated right to sell jet fiiel existed in each lease and was not qualified in any manner, 

whether with regard to transient aircraft, weight of afrcraft or otherwise." [FAA Exhibit 1, Item 

6, pp 32-33] 

'^ The added ability of Westair and Panorama to sell jet fuel to lower weight aircraft does not in and of 

itself make them and the large aircraft Jet FBO's similarly situated. 

'* The Director also noted that the County granted the LGA FBOs permission to retail jet fiiel on 

September 20,2001, after the changes in the market in part due to the aftermath of the attacks of 9/11. 

[FAA Exhibit 1, Item 13, pg. 34,] 

Page 30 of 50 
The County also reminds us that, "The Director reviewed the record...and correctly determined 

that the County's limited authorization [to] the LGA FBOs to sell jet fiiel 'did not impose a 

significant burden on Avitat.' Moreover, the Director rejected Avitat's assertion that the two 

classes of FBO are distinguished by just one trait (i.e., the authorization to sell jet fuel); rather, 

he found that the two classes are different because of a long list of differing rights, restrictions 

and responsibilities." [FAA Exhibit 1, Item 14, page 10] 

Avitat is not subsidizing the other leaseholds. Avitat's lease appears to be based on reasonable 

rental rates. [FAA Exhibit 1, Item 1, exhibits 4-5-6] If Avitat were paying disparately higher 

rental rates than the other FBOs, it could be seen as subsidizing other airport tenants or airport 

activities. Avitat has not provided any documentation or suggested that its rents are 

unreasonable. Moreover, the Director's Determination found that "County's below market rental 

rates for specific rights and access to facilities under the LGA FBO Leases to ensure service to a 

segment of the aeronautical community is not a violation of Grant Assurance 24." [FAA Exhibit 

1, Item 16, pg. 39.] It is also not a violation of Grant Assurance 22. As set forth above, the 

Director's Determination provided lengthy analysis on competition and long-standing FAA policy 

and precedent establishing that grant assurance 22 does not require that airport sponsors charge all 

FBOs identical lease rates in order to avoid unjust economic discrimination. [See FAA Exhibit 1, 

Item 16, pages 20-38.] The fact that the LGA FBOs may have a market share of the jet fiiel sales on 

the Airport, within the limitations of their lease agreements, does not rise to an unjustly 

discriminatory action toward Avitat. 

Finally, a review of the land available to Westair, Panorama and Avitat shows that Avitat has 

significantly more area to provide fiiel services to transient aircraft that either Westair or Panorama. 

Additionally, Westair and Panorama are restricted to fiiel sales on their leaseholds whereas Avitat 

may sell fuel to aircraft at any location on the Airport except for Westair and Panorama's leased area. 

Facilities Westair Panorama Avitat 

T-hangar space 

Tie-down space 

Large hangar space 

Apron space 

58,200 sq. ft. 

115 

15,000 sq.ft. 

35,000 

54,876 sq. ft. 

100 

19,950 sq. ft. 

35,000 sq. ft. 

None 

None 

63,032 combined sq. ft 

225,527 combined sq. 

ft. 

[FAA Exhibit 1, Item 16 pg 23] 

The Associate Administrator finds the Director was correct in concluding that the County is not in 

violation of Grant Assurance 22, Economic Nondiscrimination. Avitat has not presented any 

evidence on Appeal that permission granted by the County to allow Panorama and Westair a limited 

ability to sell jet fuel is a violation of Grant Assurance 22. Avitat's proffered argument that it has 

lost market share because of Westair and Panorama's limited ability to sell jet fuel is unpersuasive. 

Avitat fails to acknowledge and take into account its direct competition from the other two large 

FBOs. Avitat does not predict any impact on market share (up or down in light of Westair and 

Panorama's current situation or the one that Avitat desires for Westair and Panorama) with regard to 

its direct competition, one of which sells fuel below Avitat's rate. Additionally, the LGA FBO 

Leases are clear in that permission to sell jet fiiel on a limited basis was a possibility. The fact that 

the Coimty acted on this lease provision and gave permission to Panorama and Westair to sell jet fiiel 

Page 31 of 50 
to aircraft weighing less than 50,000 lbs. did not trigger an unjustly discriminatory situation for 

Avitat. Accordingly, based on the record, the Associate Administrator finds Westair and Panorama 

have not been unreasonably favored over Avitat by the County, nor has Avitat subsidized the LGA 

FBOs, and therefore the County is not in violation of its federal obligations. 

5. Avitat's Miscellaneous Claims On Appeal 

a. Avitat Alleges Changes Were Made And Developments Occurred After Avitat's 

Signing Of 2005 And 2006 Leases Which Constitute Continued Unjust Discrimination 

(1) With Panorama's request for lease changes the county changed the rules for 

Westair and Panorama in 2007 and (2) Panorama And Westair have 

aggressively marketed themselves as Jet FBOs and have not 'protected' the light 

general aviation sector. 

The Associate Administrator notes that the argument Avitat presents on the 2007 Letter was not 

argued in this manner to the Director, but it could be viewed as a variation of argument presented 

during the Part 16 process. The Associate Administrator also notes that Avitat does not explain how 

these claims relate to any error in the Director's £)etermination. 

Specifically, Avitat now argues on appeal, "In January, 2007, the County's Director of Real Estate 

agreed to modify Panorama's lease to include the terms of the 2001 Letter Agreement... Such an 

amendment would solidify the interim qualified approval granted...by the airport manager. This is a 

major concession on the part of the County...by including it in the lease, the right becomes 

transferable to a third party.. .and second because it is a right under the lease, it is not subject to being 

revoked 'upon 60 days' notice as was previously the case." [FAA Exhibit 1, Item 13, page 27] 

In response, the County states that the 2007 letter does not involve Westair. Second, Avitat concedes 

in its Appeal at page 27 that the 2007 letter solidifies the interim qualified approval granted by the 

County in 2001. Third, the 2007 letter simply confirmed the status quo that had existed since 2001 

and finally, the terms of the letter do not impact the revocation clause of the lease. [FAA Exhibit 1, 

Item 14, pg. 14.] Westair and Panorama's leases consist of substantially the same terms and 

conditions. 

Avitat also argues that since Avitat signed its 2005 and 2006 leases, the LGA FBOs "have been 

aggressively marketing themselves as Jet FBOs and abandoning the light general aviation 

sector...Thus, the justification for providing Panorama and Westair with significant subsidies and 

permission to sell jet fiiel is no longer valid." [FAA Exhibit 1, Item 13, page 27-28] 

The Director's Determination noted that Avitat "...specifically acknowledges the reasonableness of 

the County's actions to preserve the economic viability and services offered by the LGA FBOs. 

What Avitat objects to is the right granted the LGA FBOs in 2001 to fiiel some jet aircraft on their 

leased premises. Avitat seeks to have the County revoke this limited right for the LGA FBOs to fuel 

jet aircraft notwithstanding the fact that this practice commenced before Avitat accepted its lease 

agreements in 2005 and 2006." [FAA Exhibit 1, Item 16, pages 34-35] 

In January, 2007, the County refiised to allow Panorama to remove the term, "light general aviation 

fixed base" from its Lease, noting, "The County will absolutely not agree to this request" 

"Furthermore, while Panorama's suggested alteration to the agreement...could conceivably result in 

Page 32 of 50 
greater compensation paid to Panorama.. .these alterations would run directly counter to the County's 

goal of maintaining and supporting Light General Aviation at the Westchester County Airport." 

[FAA Exhibit I, Item 1, ex. 31, pp 2-3 and Item 6, ex. HH, pp 2-3] 

The Associate Administrator does not find the County's modification of the Westair or Panorama 

leases to result in any new rights or obligations for the LGA FBOs. The parties do not gain 

additional benefits that were not already contemplated. The Director found that the County was not 

acting in an unjustly discriminatory manner by administering the LGA FBO leases. [FAA Exhibit 1, 

Item 16, page 35] (Even though Avitat disputes the fact that the LGA FBOs are allowed under their 

lease agreements to sell jet fiiel, it does not mean that the County is acting contrary to its grant 

assurances or is unjustly discriminating against Avitat.) The LGA FBO leases allowed for potential 

jet fuel sales in 1999; they obtained permission to actually sell jet fuel in 2001. [FAA Exhibit I, Item 

1, exhibits 4-5-6] Between 2001 and 2005, Avitat had the opf>ortunity to discover that the LGA 

FBOs were selling jet fuel and make appropriate changes to their business plan had they wished to do 

so. The 2007 letter has no impact on Avitat's lease. The grant assurances are not in place to protect 

any business from fair competition and they can not be used to retroactively restrict the contract 

rights granted to competing and other business entities. 

The Associate Administrator finds that Avitat's allegation that the County has failed to "protect the 

light general aviation sector' at the Airport," has no merit. The fact that the LGA FBOs have a 

limited right to sell jet fuel from their existing leaseholds does not diminish their obligations under 

the lease agreements to provide extensive services to the light general aviation market at the Airport. 

The Associate Administrator finds that the 2007 Letter had no impact on the leaseholds and affirms 

the Director's Determination that the County is not unjustly discriminating against Avitat because the 

LGA FBOs have a limited right to sell jet fiiel. 

(3) Avitat Alleges The Director Misreads Panorama's and Westair's Leases, Making 

Assumptions that Are Not There and Eliminating Significant Portions. 

In its Appeal, Avitat argues that the Director made several errors in his reading of the 1999 light 

general aviation FBO leases. [FAA Exhibit 1, Item 14, pgs. 28-31.] Specifically, Avitat alleges that 

the Director misread the lease provisions regarding the types of aircraft that the LGA FBOs are 

permitted to base on their leaseholds and fuel, and that the Director must look to the request for 

proposals (RFP) for an interpretation of the LGA FBO leases. [Id.] 

The Director reviewed the record and analyzed the LGA FBO's lease terms and the RFP. [FAA 

Exhibit 1, Item 16, pgs. 4-9,23, 28, and 34 n.9.] Upon review, the leases are clear as to the 

permissible rights and restrictions. [FAA Exhibit 1, Item 1, exhibits 4-5-6] 

On its face, the leases are clear that the tenant may base up to twelve aircraft below 50,000 lbs. 

The FBO leases, not the RFPs, are the controlling documents under evaluation that grant what 

rights and conditions FBOs to may exercise to operate at this Airport. There have been no 

allegations that the LGA FBOs are basing more than twelve aircraft. Avitat's concern is not 

about the number of based afrcraft on the LGA FBO leaseholds, but about the ability of the LGA 

FBOs to sell jet fiiel to transient aircraft up to 50,000 lbs as a result of permission granted in the 

September 21, 2001 Letter. This has been discussed previously. The Airport granted this limited 

ability to sell jet ftiel to the LGA FBOs in 2001, and on January 11,2007, agreed to modify the 

Lease v^th Panorama. [FAA Exhibit 1, Item 1, exhibit 31] However,*even if the lease with 

Page 33 of 50 
Panorama is not amended, the base lease still gives a new operator assigned the lease the right to 

petition the Airport to sell jet fuel as Panorama did. [FAA Exhibit 1, Item 1, exhibit 5] 

An airport will often modify lease terms with its ten^its to serve a purpose. Incorporation of 

terms negotiated in letters of agreement or other interim documents modifying a lease during its 

term into a new lease does not necessarily constitute a violation of the grant assurances. The 

Associate Administrator finds that the Director did not misread or misinterpret the lease terms 

for die LGA FBOs. 

In the Director's Determination, the Director stated, "RFPs are not controlling documents, under the 

grant assurances. The FAA does not enforce past policies, practices or interests of airport 

management, as expressed in an RFP. RFPs are solicitations to interested parties to conduct a 

business on an airport. The FAA expects airport sponsors to change and evolve to address the best 

interests of the aeronautical public." [FAA Exhibit 1, Item 16, page 33] 

The Director also stated that the FAA was unable to determine that the County is responsible for 

Avitat's own choice to rely on the language of a 10-year old RFP, instead of relying on the 

obviously known and transparent practices of the County and of the LGA FBOs on the airfield in 

2001, 2002, 2003, 2004 and in 2005 when Avitat agreed to tiie 2005 Avitat Lease. Any lack of 

due-diligence on Avitat's part is Avitat's responsibility, not the County's responsibility. [FAA 

Exhibit 1, Item 16, page 33.] 

In his Determination, the Director correctly concluded that "an allegation of unreasonable denial 

of access by means of an unreasotiable term.. .also falls on the basis that Avitat agreed to the 

competitive situation at the Airport, in existence since 2001, in its 2005 Avitat Lease and again 

in 2006." [FAA Exhibit 1, Item 16, page 35.] Furthermore, since there is no legal basis or 

support to deem an RFP a controlling document under the grant assurances, a sponsor cannot be 

held to its language, particularly when the documents are ten years old as is the case in this 

Complaint. 

The Associate Administrator concurs with the Dfrector's Determination and finds that language 

in the FBO leases is clear and a reasonable and properly applied in a contract executed by the 

parties to the contract, thus there is no error. 

C. GRANT ASSURANCE 23, EXCLUSIVE RIGHTS 

Avitat's appeal alleges that the County's actions are in violation of Grant Assurance 23. [FAA 

Exhibit 1, Item 13, pg. 2 and 16.] 

Avitat's complaint argues: 

"In this matter, the County has imposed a significant burden on the Jet FBOs by allowing the 

LGA FBOs the right to sell jet fiiel while not paying market rent It is a significant burden 

since the Jet FBOs have not received, among other things, the PFC subsidies and the 

substantially below market rent This allows the LGA FBOs to sell their jet fiiel at price 

much lower than the Jet FBOs. Thus, because of all of the financial benefits that the LGA 

FBOs have received from the County, they have effectively received an exclusive right: the 

Page 34 of 50 
County's financial benefits allow the LGA FBOs to price their jet fiiel at an uncompetitively 

low rate in violation of the Airport's grant Assurance 23, Exclusive Rights." FAA Exhibit I, 

Item 16, pg. 36.] 

Avitat alleges that a constructive grant of an exclusive right is conferred on Panorama and Westair 

since the County has burdened Avitat and other Jet FBOs with the cost of economically supporting 

Panorama and Westair. [FAA Exhibit 1, Item 13, pg. 16.] 

Avitat theorizes that the alleged subsidies permit Panorama and Westair "to discount the price of jet 

fiiel to a level substantially below that which can be supported by Jet FBOs." Furthermore, Avitat 

alleges the burden of those subsidies is borne on "the shoulders of Avitat and the other Jet FBOs." [Id 

at pg. 34.] 

The County rejects Avitat's argument because it reflites the premise that the LGA FBO's rent is 

being subsidized. [FAA Exhibit 1, Item 10, pg. 14.] In addition, the County denies Avitat's claim 

arguing that there is no causal relationship between the County's actions and the price at which LGA 

FBOs sell jet fuel. Moreover, the County has not excluded Avitat from performing any on-airport 

activities. [FAA Exhibit 1, Item 3, pg. 36.] 

The Director's Determination attempted to make sense of Avitat's arguments linking unjust 

economic discrimination to a constructive granting of an exclusive right in the analysis on pages 36 

and 37 of the Determination. The Director reasons "Avitat's argument fails on die fact that the 

County did not impose a significant burden on Avitat. Rather Avitat agreed to a wholly different set 

of rights, restrictions, responsibilities and rents in the 2005 Avitat Lease while the LGA FBO Leases 

had existed for years prior to 2005. The Director examined the Complaint in light of Avitat's leases 

and the application of several Part 16 cases argued by the parties". [FAA Exhibit 1, Item 16, pg. 37.] 

Against this backdrop, the Associate Administrator rejects Avitat's argument for a violation of Grant 

Assurance 23. 

The applicable law and policy regarding Exclusive Rights and Grant Assurance 23 is applied 

here. [See pgs. 15-20 infra.] 

An exclusive right is defined as a power, privilege, or other right excluding or debarring another 

from enjoying or exercising a like power, privilege, or right. An exclusive right can be conferred 

either by express agreement, by the imposition of unreasonable standards or requfrements, or by 

any other means. Such a right conferred on one or more parties, but excluding others from 

enjoying or exercising a similar right or rights, would be an exclusive right. [FAA Advisory 

Circular 150/5190-6, Exclusive Rights at Federally Obligated Airports, Appendix 1 (January 4, 

2007).] 

'^ Aerodynamics of Reading, Inc, v. Reading Regional Airport Authority, FAA Docket No. 16-00-

03,(Final Decision and Order) (July 23, 2001), Adventure Aviation v. City of Las Cruces, NM, FAA 

Docket No. 16-01-14 (Final Decision and Order) (September 15, 2003), Penobscot Air Service, Ltd, v. 

Coimty of Knox Board of Commissioners, FAA Docket No. 16-97-04 (Final Decision and Order) 

(January 20, 1997), Santa Monica Airport Association v. City of Santa Montca, FAA Docket-No. 16-99-

21 (Final Decision and Order) (February 4, 2003). 

Page 35 of 50 
Avitat's appeal alleges that the County's actions are in violation of Grant Assurance 23. [FAA 

Exhibit I, Item 13, pg. 2 and 16.] The allegation supposes that a constructive grant of an 

exclusive right is conferred on Panorama and Westair if the County has burdened Avitat and 

other Jet FBOs with the cost of economically supporting Panorama and Westair. [Id. at pg. 16.] 

In Platinum Aviation and Platinum Jet Center BMI v. Bloomington-Normal Airport Authority, FAA 

Docket No. 16-06-09 (Nov. 28, 2007), Complainants' asserted the inability to make full use of its 

"Priority Use Area" violated grant assurance 23. ^° Complainants' cited FAA's position that "any 

unreasonable requirement or any standard that is applied in an unjustly discriminatory manner may 

constitute the constructive grant of an exclusive right." [See Id at p. 39.] The Complainants' 

construed the airport's refusal to permit it to park aircraft and vehicles in the "Priority Use Area" as 

unjustly discriminatory. [Id at pg. 39.] 

The Platinum Director's Determination affirmed by the Final Agency Decision agreed that parking 

aircraft and vehicles on taxiways and movement areas compromised safety and undermined the 

utility of the Airport. Allowing the Complainants to shut down active taxiways would cause the 

airport to violate grant assurances 5, Preserving Rights and Powers; 19, Operation and Maintenance; 

23, Exclusive Rights; and 29 Airport Layout Plan. Thus, Airport's preventing Complainants fix)m 

parking aircraft in an area that interferes with the use of active taxiways and movement areas was not 

an unreasonable'requirement. [Id at pg. 39.] 

In addition, the Complainants in Platinum did not demonstrate that the competing FBO was allowed 

to park aircraft that interfered with the use of active taxiways and movement areas. Complainants and 

the competing FBO were not similarly situated. The competing FBO's leased premises did not 

encroach on public access taxiways and movement areas while Complainants' Priority Use Area 

encroached on public access taxiways and movement areas. Thus, there was no finding of unjust 

economic nondiscrimination upon which to base a finding of a constructive exclusive right. [Id at pg. 

39.] 

The case at bar is similar in regard to lease application. Like Complainants in Platinum, Avitat 

argues the LGA FBOs are indirectly enjoying a benefit not given to Avitat. Avitat argues it is 

debarred from enjoying the same deal as the LGA FBOs. Like the FBOs in Platinum, the FAA has 

determined that Avitat is not similarly situated to the LGA FBOs. Avitat has not demonstrated that 

the LGA FBOs are doing anything other than what is permitted under their leaseholds and 

agreements. The Airport has not unposed any unreasonable requirement or treated Avitat in an 

unjustly discriminatory fashion.^' Avitat is not entitled to the same deal as the LGA FBOs and the 

Airport has not granted any constructive exclusive benefit to any FBO. 

Avitat also theorizes that the alleged subsidies permit Panorama and Westair "to discount the 

price of jet fuel to a level substantially below that which can be supported by Jet FBOs." 

Furthermore, Avitat alleges the burden of those subsidies is borne on "the shoulders of Avitat 

and the other Jet FBOs." [Id at pg. 34.] It would appear that Avitat's argument is simply that 

what it perceives as a financial benefit to the LGA FBOs, is done so at Avitat and the other Jet 

^^ In Platinum, the "Priority Use Area" was comprised of public taxiways and movement areas. 

^' In fact, the Director's Determination notes that Avitat admits it can offer fffi services offered by the 

LGA FBOs, but chooses not to. [FAA Exhibit 1, Item 13, pg. 34.] 

Page 36 of 50 
FBOs expense and thus creates an exclusive right. [See FAA Exhibit 1, Item 1, p. 25 and Item 9 

at pg. 5; Item 16 pg. 36.] The Associate Administrator notes that Avitat provides the following: 

FBO 

Avitat 

Panorama 

Westair 

Jet FBO 2* 

Jet FBO 3* 

Price per 

$8.41 

$6.22 

$6.22 

$7.41* 

$ 8.56 * 

gallon 2006 gallons sold 

9,107,671 

2,108,516 

1,577,204 

6,085,380/11,649,911 

6,085,380/11,649,911 

* Avitat's appeal does not specify Signature or Landmark's rates by name. Signature sold 

6,085,380 gallon in 2006. Landmark sold 11,649,911 gallons in 2006. [FAA Exhibit 1, Item 13, 

pgs. 15 and 16.] 

Beyond the general allegation, Avitat has provided information that would suggest Panorama 

and Westafr are not Avitat's main source of competition. Moreover, the numbers in the above 

table suggest that Panorama and Westafr are merely providing fiiel to the limited aeronautical 

users they are permitted to service on their leased premises. Avitat does not elaborate or explain 

the exclusive right allegedly conferred. In fact, Avitat admits there are five FBOs at the airport, 

each of which sells jet fiiel. [FAA Exhibit 1, Item 1 pg. 18.] Avitat asserts that the County shifts 

the cost of maintaining general aviation at the Airport with Panorama and Westair's leases 

through rent deferrals or debt forgiveness. [FAA Exhibit 1, Item 13, pg. 33.] In comparison to 

the Jet FBOs, Panorama and Westair do not appear to be competing with Avitat for sale of jet 

fiiel. In addition, and as discussed above, there is no evidence in the record to support Avitat's 

allegation that Panorama and Westafr are subsidized by Avitat and the other Jet FBOs. The 

FBO's are not similarly situated and the Airport is not in violation of grant assurance 22. 

FAA has taken the position that the application of any umeasonable requirement or any standard 

that is applied in an unjustly discriminatory manner may constitute the constructive grant of an 

exclusive right. Courts have found the grant of an exclusive right where a significant burden has 

been placed on one competitor that is not placed on another. [ See e.g. Pompano Beach v FAA. 

774 F2d 1529 (ll"' Cir, 1985).] "The FAA considers it inappropriate to provide Federal 

assistance for improvements to airports where the benefits of such improvements will not be 

fiilly realized due to inherent restrictions on aeronautical activities." Kg., Boca Raton Jet 

Center, Inc. v. Boca Raton Airport Authority, FAA Docket No. 16-97-06 at 7 (Final Agency 

Decision incorporating Director's Determination, August 20, 1999) (citing FAA Order 5190.6A 

at sec. 3-8(a)). 

Here, Avitat mistakenly applies the logic of Pompano Beach. Avitat needs to understand "it is 

well established that in order to show the constructive grant of an exclusive right, a claimant 

must show that it actually has been barred from conducting a 'particular aeronautical activity' at 

the airport", through the imposition of umeasonable standards. Id. at 1541. (The authority is 

within its rights to make such a grant, provided it does not deny other airlines the opportunity for 

similar treatment under a similar situation. It is in denying others a similar right that creates a 

violation of Grant Assurance 23.) The two LGA FBOs, Westafr and Panorama, do not provide 

the same services as Avitat and are not similarly situated. Avitat, however, provides the same 

commercial services as two other Jet FBOs. All in all, competition exists at this Airport and no 

Page 37 of 50 
one FBO enjoys a right not granted to at least one other FBO at the Airport. Avitat was not and 

does not claim it was denied the right to fuel aircraft or any other opportunities to provide 

aeronautical services at the Airport. It is in denying others a similar right that creates a violation 

of Grant Assurance 23. Avitat has not shown the County has denied them a similar right in using 

the Airport. 

Avitat's allegation that the County discriminated against it, by its application of dissimilar lease 

provisions, discriminatory enforcement, and retaliatory, harmful acts has implications for the 

grant assurance prohibiting the granting of an exclusive right, as discussed above. However, at 

the very least the FAA would have to determine that the County had established such inequity in 

its leases, standards and/or practices as to violate a provision of Grant Assurance 22. As 

discussed above, the Associate Administrator is not persuaded by the record and this is the case 

for the reasons discussed above. 

The Complainant does not present any evidence or argument of circumstances beyond which is 

discussed above to establish an exclusive right. 

Therefore, the Associate Administrator finds that the County has not granted an exclusive right. 

Avitat has not demonstrated that the Director erred by (1) making findings of fact that were not 

supported by a preponderance of reliable, probative, and substantial evidence, or (2) by making 

conclusions of law that were not in accordance with applicable law, precedent, and public policy. 

As discussed above, there is no cost connection borne by Avitat in relation to Panorama or 

Westair. There is no exclusive right conferred directly or indirectly to Panorama or Westair. 

The Dfrector relied upon the substantial evidence in the record and also based his decision on a 

proper application of precedent. Accordingly, the Associate Administrator affirms the Director's 

Determination and finds that the County has not violated grant assurance 23. 

D. GRANT ASSURANCE 24, FEE AND RENTAL STRUCTURE 

Avitat raises the issue on appeal of whether the County has failed to maintain an aeronautical 

rent schedule that makes the Airport as self-sustaining as possible under the circumstances 

existing at the Airport, by providing more favorable financial treatment to Panorama and Westair 

in violation of grant assurance 24. [FAA Exhibit 1, Item 13, pg. 17.] 

Avitat does not argue specifics as to what if any error the Dfrector made in his determination 

regarding Grant Assurance 24. [FAA Exhibit 1, Item 16, pgs. 37-39.] Avitat makes only one 

reference on page 24 of its appeal that "Airport Management's agreement in 2007 to amend 

Panorama's lease to allow substantially unlimited right to sell jet fiiel to all aircraft under 50,000 

lbs both based and transient, while it retained the subsidies granted to it. This creates an anticompetitive envfronment not permitted by the grant assurances. See Grant Assurances 23 and 

24." [FAA Exhibit 1, Item 13, pg.24.] The Associate Administrator will not attempt to make 

sense of Avitat's unformulated argument in regard to Grant Assurance 24. Avitat has not 

pointed to any information or facts that indicate that the information provided in the record 

concerning the County's actions are incorrect, or inconsistent with the grant assurances. Avitat's 

mere allegations provide no support upon which to justify reversing or correcting the Director. 

Page 38 of 50 
Titie 49 of the U.S.C. Section 47107(a)(13) requfres that the owner or sponsor of a federally 

obligated airport "will maintain a fee and rental structure for the facilities and services being 

provided to airport users which will make the airport as self-sustaining as possible under the 

cfrcumstances existing at that particular airport." In addition. Section 47107(a) requires fees 

levied on aeronautical activities to be reasonable and not unjustly discriminatory. Federal grant 

assurance 24, Fee and Rental Structure (Grant Assurance 24) satisfies the requirements of § 

47107(a)(13). The airport owner or sponsor agrees to establish a fee and rental structure that will 

make the airport as self-sustaining as possible under the circumstances at the particular airport, 

taking into account such factors as the volume of traffic and economy of collection. The intent 

of the assurance is for the airport operator to charge fees that are sufficient to cover as much of 

the airport's costs as is feasible. 

Moreover, FAA Order 5190.6A states that the owner or sponsor's obligation to make an airport 

available for public use does not preclude the owner or sponsor from recovering the cost of 

providing the facility. The owner or sponsor is expected to recover its costs through the 

establishment of fair and reasonable fees, rentals, or other user charges that will make the airport 

as self-sustaining as possible under the circumstances existing at the particular airport. [See 

FAA Order 5190.6A, Section 4-14(a).] 

In any event, review of the record indicates that Avitat's rent is based on reasonable rental rates. 

If Avitat were required to pay a premium over fafr market rates, it could be said that Avitat may 

be subsidizing other tenants. However, Avitat provides no evidence that the rental and fees it 

pays are higher than would be the case because of what the LGA FBOs pay. [FAA Exhibit 1, 

Item 14, page 12.] 

In the Director's Determination, the Director noted,".. .the Complainant re-enforces that it does 

not allege that the County's action to support LGA at the Airport are in violation of the County's 

grant assurances. In fact, Avitat states: 

Avitat does not challenge... (the "County's ") policy calling for differential financial 

treatment for LGA FBOs, the purpose of which is to encourage their continued economic 

viability arui service to the Light General Aviation ("LGA) community. On the contrary, 

Avitat strongly supports it... " [FAA Exhibit 1, Item 16, page 34.] 

The Director points out "In its Reply, the Complainant specifically acknowledges the 

reasonableness of the County's action to preserve the economic vitality and services offered by 

the LGA FBOs. What Avitat objects to is the right granted the LGA FBOs in 2001 to fiiel some 

jet aircraft on thefr leased premises. Avitat seeks to have the County revoke this limited right for 

the LGA FBOs to fuel jet aircraft notwithstanding the fact that this practice commenced before 

Avitat accepted its lease agreement in 2005 and 2006." [FAA Exhibit 1, Item 16, pages 34-35.] 

The Associate Administrator is not persuaded that the limited ability of the LGA FBOs to sell jet 

fuel on thefr leased premises, a right in place since 2001, imposes any financial burden on Avitat. 

There has been no evidence presented that Avitat has been unjustly burdened with any rates or 

fees that should have rightfiilly been assessed against the LGA FBOs.* It is clear that-the 

fitiancial burden that Avitat is referring to is the perceived market share it believes it may have 

Page 39 of 50 
lost to the LGA FBOs, if the limited right to fiiel jet aircraft were not granted in the September 

20,2001 letters. However, the amount of loss in market share would be speculative as there are 

two other Jet FBOs at the Airport, in addition to Avitat. 

As can be seen from the chart below^^, the LGA FBOs each have approximately 4% of the 

market share of jet fiiel sales at the Airport. Signature has decreased its jet fiiel sales from a 

high of 9,918,071 gallons in 2001 to 6,085,380 gallons in 2006. fri contrast, Avitat has 

increased its jet fuel sales over this same period from 8,794,964 to 9,107,671 gallons, an 

increeise of 312,707 gallons. Landmark has increased its jet fiiel sales from 8,507,562 to 

11,649,911 gallons. 

Signature 

Avitat 

Landmark 

Westair 

Panorama 

Totals 

2001 

9,918,071 

8,794,964 

8,507,564 

117,830 

217,692 

2002 

9,413,864 

9,183,615 

8,716,848 

845,087 

848,161 

2003 

5,368,770 

8,275,632 

11,291,636 

1,277,836 

1,151,008 

2004 

5,734,548 

8,282,024 

12,653,347 

1,454,461 

1,435,386 

2005 

5,915,771 

8,155,742 

11,756,217 

1,382,918 

1,876,789 

2006 

6,085,380 

9,107,671 

11,649,911 

1,577,204 

2,108,516 

Totals 

42,436,404 

51,799,648 

64,575,522 

6,655,336 

7,637,552 

173,104,462 

% 

25% 

30% 

37% 

4% 

4% 

100% 

Avitat's allegation that the January 11, 2007 letter gave new rights to Panorama is unsupported 

by the evidence in the record. Panorama's base lease (Section 3.6) provided permission to sell 

jet fuel if certain conditions were met. [FAA Exhibit 1, Item 1, exhibit 5] In January 2001, the 

County provided permission to the LGA FBO's to sell jet fiiel to based and transient aircraft on 

their leaseholds that weighed less than 50,000 lbs. The January 2007 letter reiterated that 

Panorama had the right sell jet fuel on its leasehold and noted that if Panorama assigned the lease 

to another party, the lease would be modified to reflect the right to sell jet fuel. [FAA Exhibit 1, 

Item 1, exhibit 31] The record does not contain evidence that Panorama's lease was formally 

modified to include jet fiiel sales at the time. As discussed in the Dfrector's Determination, 

Avitat had ample opportunity to make itself aware of the terms and conditions that applied to the 

LGA FBOs before extending its ovm leases in 2005 and 2006. [FAA Exhibit 1, Item 16, page 27] 

The FAA's Rates and Charges Policy addresses the allocation of common costs not lost 

revenues. In allocating common costs, airport sponsors must use a system that does not require 

any aeronautical user or user group to pay costs properly allocable to other users or user groups. 

[FAA Policy Regarding Rates and Charges, 61 Fed. Reg. 31994,32021 (June 21,1996).] 

Moreover, the policy is specific that airport sponsors undertake reasonable efforts to make their 

particular airports as self sufficient as possible under the cfrcumstances existing at the airport. 

That said, an airport sponsor may not establish fees for the use of the airfield that exceed the 

airport sponsor's airfield costs, but nor does the FAA requfre the use of fair market value to 

establish fees. Id. 

Here, the Airport's market conditions for light general aviation, do not permit the sponsor to 

equalize the same fee schedule for the Jet FBOs and the LGA FBO's. Such high fees would 

mean losing the commercial services offered light general aviation operators by the LGA FBOs. 

FAA's Rates and Charges Policy states: "In such circumstances, an airport proprietor's decision 

to charge rates that are below those needed to achieve self-sustainability in order to assure that 

22 [FAA Exhibit 1, Item 1, page 18] 

Page 40 of 50 
services are provided to the public is not inherently inconsistent with the obligation to make the 

airport as self-sustaining as possible in the cfrcumstances. Id. 

Avitat continues to rely on Jet I Center, Inc., v. Naples Airport Authority, FAA Docket No. 16-

04-03. The Director's Determination in the case at bar noted that the Jet 1 Center Director's 

Determination discussed the possibility of assessing an airport-wide fiiel flowage fee: a common 

cost, not a percentage of the gross receipts of an FBO's business or an FBO's exclusive-use rent. 

Fuel flowage fees traditionally provide a cost-allocation for the common use of the airfield. This 

type of rate scheme is but one methodology employed to provide revenue to the airport. It is 

assessed on the per gallon flow of fiiel of a// aeronautical users, just like the fiiel flowage fee 

imposed by the County. The Associate Administrator notes that Avitat makes no argument or 

comment regarding the assessment of fiiel-flowage fees at the Airport. [FAA Exhibit 1, Item 16, 

page 38.] 

The Associate Administrator rejects Avitat's inference that grant assurance 24 has been violated 

by the Airport. There was evidence presented that Avitat was paying reasonable rental rates for 

its leasehold and the LGA FBOs were charged rates and a percentage of thefr gross earnings that 

would enable them to maintain a viable service to the general aviation community. [FAA Exhibit 

1, Item 16, pages 21-24] Additionally, the LGA FBOs are required to provide services to the 

light general aviation public that Avitat is not, including afrcraft parking and storage (hangars), 

aircraft maintenance, aircraft rental, lease, and charter, flight instruction, sale of Av-gas and sale 

of aircraft and afrcraft parts. These services must be performed within the LGA FBO leaseholds. 

The fact that the LGA FBOs are under a different rate structure than Avitat is acceptable under 

the grant assurances because they are not similarly situated, as discussed above. Accordingly, 

the Associate Administrator finds the Director correctly concluded that the Respondent did not 

impose a fee and rental structure that disparately shifted the burden of making the Airport as selfsustainable as possible to the Jet FBOs in violation of grant assurance 24. The fact that full service, 

unrestricted FBOs such as Avitat pay higher rents and fees than restricted LGA FBOs is not contrary 

to the Respondent's federal obligations. That Avitat failed to provide financial data in support of its 

contentions that the County or that Avitat is subsidizing the LGA FBOs, the Associate Administrator 

cannot legally or logically arrive at that conclusion. 

Consequenriy, based on the above, the Associate Administrator rejects Avitat's appeal and the 

implication that the Director's decision on this issue was in error. 

VII. CONCLUSION 

Upon an appeal of a Part 16 Director's Determination, the Associate Administrator must 

determine whether (a) the findings of fact made by the Director are supported by a 

preponderance of reliable, probative, and substantial evidence, and (b) each conclusion of law is 

made in accordance with applicable law, precedent, and public policy. [See e.g. Ricks v 

Millington Municipal Airport, FAA Docket No. 16-98-19 (December 30, 1999) (Final Decision 

and Order), page 21, and 14 CFR § 16.227.] 

In arriving at a final decision on this appeal, the FAA has reexaminedethe record, including the 

Director's Determination, the Administrative Record supporting the Director's Determination, 

Page 41 of 50 
and the appeal and reply submitted by the parties, in light of applicable law and policy. Based on 

this reexamination, the Associate Administrator concludes that the Director's Determination is 

supported by a preponderance of reliable, probative, and substantial evidence, and is consistent 

with applicable law, precedent, and FAA policy. The Appeal does not contain persuasive 

arguments sufficient to reverse any portion of the Director's Determination. 

The Associate Administrator affirms the Director's Determination. This decision constitutes the 

final decision of the Associate Administrator for Airports pursuant to 14 CFR § 16.33(a). 

ORDER 

ACCORDINGLY, it is hereby ORDERED tiiat (1) the Director's Determination is affirmed, 

and (2) the Appeal is dismissed, pursuant to 14 CFR § 16.33. 

RIGHT OF APPEAL 

A party to this decision disclosing a substantial interest in the final decision and order of the 

Federal Aviation Administration may file a petition for review pursuant to 49 U.S.C. § 46110, in 

the United States Court of Appeals for the District of Columbia Cfrcuit or in the court of appeals of 

the United States for the Cfrcuit in which the person resides or has its principal place of business. 

The petition must be filed not later than 60 days after a Final Decision and Order has been served 

on tiie party. [14 CFR, Part 16, § 16.247(a).] 

Catherine M. Lane ^ Dat/ 

Acting Associat9^(\9mlmst^ator 

For Airports 

Page 42 of 50 
FAA Exhibit 1 

Docket No. 16-07-13 

Index of Administrative Record 

Final Decision and Order 

41 NORTH 73 WEST, Inc. DBA AVITAT 

WESTCHESTER 

COMPLAINANT 

WESTCHESTER COUNTY, NEW YORK 

RESPONDENT 

Item 1 Avitat's Complaint, dated October 19, 2007. 

exhibit 1 [Also, Item 6, exhibit O] 10/18/2007, webpage from AirNav.com regarding HPN 

data. 

exhibit 2 January 1995, Federal AIP grant assurances. 

exhibit 3 10/25/2007, tIPN Airport Uyout. 

exhibit 4 [Also, Item 6, exhibit E] 10/01/2005, Lease between Westchester Co. and Avitat. 

exhibit 5 [Also, Item 6, exhibit A] 07/30/1999, Lease between Westchester Co. and 

Panorama Flight. 

exhibit 6 [Also, Item 6, exhibit C] 07/14/1999, Lease between Westchester Co. and Westair 

Aviation. 

exhibit 7 04/01/1992, Notice to Air Carriers issued by Westchester County in pursuit of a 

Passenger Facility Charge application to the FAA. 

exhibit 8 [Also, Item 6, exhibit CC] July 1992, Passenger Facility Charge application from 

Westchester Co. 

exhibit 9 [Also, Item 6, exhibit DD] 11/09/1992, Letter from FAA to Westchester Co. 

approving Passenger Facility Charge for HPN. 

exhibit 10 04/10/1997, FAA's Master AIP Grant Agreement with Westchester Co. 

Page 43 of 50 
exhibit 11 08/02/2002, email from Robert Bracchitta, Asst. Commissioner of Airport 

Operations for Westchester Co. to Thurston Hartford. 

exhibit 12 [Also, Item 6, exhibit Z] 12/08/1997, Request for Proposals for the Operation and 

Management of a Light General Aviation Fixed Base Operation at Westchester Co. 

Airport. 

exhibit 13 [Also, Item 6, exhibit II] 07/24/2001, hitemal Memo from Joel Russell, HPN 

Manager, to Sal Carreni, Westchester Co. Director of Real Estate about Panorama 

data. 

exhibit 14 [Also, Item 6, exhibit JJ] 06/11/1998, hitemal Memo from Joel Russell, HPN 

Airport Manager, to Westchester Co. DOT Commissioner, Eric B. Langeloh. 

exhibit 15 01/22/2001, Westchester Co. Local Law instituting 'Voluntary' aircraft fiieling and 

service restrictions on Panorama, as agreed to in a lease agreement. 

exhibit 16 [Also, Item 9, exhibit 8] 10/26/2000, Handwritten Notes and supporting documents 

involving a meeting with Westafr. 

exhibit 17 05/14/2001, Letter from Joel Russell, HPN Manager, to Westafr. 

exhibit 18 05/15/2001, Handwritten meeting notes of a meeting including Westair. 

exhibit 19 08/01/2001, hitemal Memo fix)m Joel RusseU, HPN Manager. 

exhibit 20 [Also, Item 9, exhibit 9] 08/21 /2001, Letter from Westafr to Joel Russell, HPN 

Manager. 

exhibit 21 [Also, Item 6, exhibit KK] 09/05/2001, Letter from Panorama to Westchester Co. 

exhibit 22 [Also, Item 6, exhibit B] 09/20/2001, Letter from Joel Russell, HPN Manager to 

Panorama. 

exhibit 23 [Also, Item 6, exhibit D] 09/20/2001, Letter from Joel Russell, HPN Manager to 

Westair. 

exhibit 24 03/12/2002, Letter from Westafr aimouncing jet aircraft management. 

exhibit 25 [Also, Item 6, exhibit NN] 03/10/2003, Letter from Panorama to Joel Russell, HPN 

Manager. 

exhibit 26 [Also, Item 6, exhibit OO] 07/02/2003, Letter from Peter Scherrer, Asst. HPN 

Manager to Panorama. 

Page 44 of 50 
exhibit 27 09/12/2005, Letter and documentation from Westair to Joel Russell, HPN 

Manager. 

exhibit 28 [Also, Item 6, exhibit LL] 03/14/2005, Letter from Westair to Joel Russell, HPN 

Manager. 

exhibit 29 [Also, Item 6, exhibit MM] 03/22/2005, Letter from Panorama to Joel Russell, 

HPN Manager. 

exhibit 30 08/29/2006, Letter from Westafr to Peter Scherrer, Asst. HPN Manager. 

exhibit 31 [Also, Item 6, exhibit HH] 01/11/2007, Letter from Salvatore J. Carrera, 

Westchester County Economic Development/Real Estate, to Alfred E. Dormellan 

(Panorama). 

exhibit 32 10/18/2007, Declaration of Steven M. Taber. 

exhibit 33 [Also, Item 6, exhibit FF] undated, faxed on 04/30/1999, Draft speech by 

Commissioner Church. 

exhibit 34 06/04/2001, Letter from Westafr to Joel Russell, HPN Manager. 

exhibit 35 06/19/2001, Letter fix)m Joel Russell, HPN Manager, to Westair. 

exhibit 36 [Also, Item 9, exhibit 5] 06/27/2001, Letter from Westafr to Joel Russell, HPN 

Manager. 

exhibit 37 07/30/2001, fritemal Memo from Joel Russell, HPN Manager, to Sal Carrera, 

Westchester Co. Director of Real Estate about Panorama data. 

exhibit 38 09/27/2007, Web article, HPN's Westafr throws its lot in witii Million Afr, 

www.Ainonline.com, NBAA Convention News. 

Item 2 Notice of Docketing dated November 5, 2007. 

Item 3 Respondent's Unopposed Motion for Extension of time to file Answer, dated 

November 15,2007. 

Item 4 Letter from FAA counsel granting request for extension, dated November 19, 2007 

Item 5 Respondent's Motion to Dismiss, dated December 27, 2007. 

Page 45 of 50 
Item 6 Respondent's Answer, dated December 27,2007. 

exhibit A [Also, Item 1, exhibit 5] 07/30/1999, Lease between Westchester Co. and 

Panorama Flight. 

exhibit B [Also, Item 1, exhibit 22] 09/20/2001, Letter from Joel Russell, HPN Manager to 

Panorama. 

exhibit C [Also, Item 1, exhibit 6] 07/14/1999, Lease between Westchester Co. and Westair 

Aviation. 

exhibit D [Also, Item 1, exhibit 23] 09/20/2001, Letter from Joel Russell, HPN Manager to 

Westair. 

exhibit E [Also, Item 1, exhibit 4] 10/01/2005, Lease between Westchester Co. and Avitat. 

exhibit F 01/30/2006, First Amendment to Avitat Lease with Westchester Co. 

exhibit G 07/01/2006, Lease between Westchester Co. and Signature Flight Support. 

exhibit H 12/08/2005, Lease between Westchester Co. and Landmark Aviation (Piedmont). 

exhibit I 12/11/2007, FAA Aircraft Registry for Westchester County and Aircraft 

Registration Master File. 

exhibit J November 2007, HPN Based Aircraft List by FBO. 

exhibit K September 2007, Westchester County Airport Monitor. 

exhibit L 12/31/2006, Westchester County Comprehensive Annual Financial Report for the 

Year Ending December 31, 2006. 

exhibit M 2007-2020 FAA Aerospace Forecasts. 

exhibit N 2005-2016 FAA Aerospace Forecasts. 

exhibit O [Also, Item 1, exhibit 1] 10/18/2007, webpage from AirNav.com regarding HPN 

data. 

exhibit P 12/08/2007, webpage from AirNav.com regarding Danbury Municipal Airport, 

Danbury CT data. 

exhibit Q 12/08/2007, webpage from AirNav.com regarding LaGuardia Airport, New York 

City, NY dataPage 46 of 50 
exhibit R 12/08/2007, webpage from AirNav.com regarding JFK International Airport, New 

York City, NY data. 

exhibit S October 1980, HPN Master Plan Sttidy, Phase Reports. 

exhibit T October 1980, HPN Master Plan Sttidy, Phase II Reports. 

exhibit U 10/07/1985, Westchester Co. Resolution 266-1985, Statement of Airport Policy. 

exhibit V Febmary 1987, HPN Master Plan Update. 

exhibit W 01/24/1977, Westchester Co. Administrative Code, Article EX Westchester County 

Airport Advisory Board and West Co. Resolution No. 1977. 

exhibit X 07/09/1997, FAA Finding of No Significant hnpact and Record of Decision, HPN 

Airport Projects. 

exhibit Y undated, HPN Rules and Regulations. 

exhibit Z [Also, Item 1, exhibit 12] 12/08/1997, Request for Proposals for the Operation and 

Management of a Light General Aviation Fixed Base Operation at Westchester Co. 

Airport. 

exhibit AA 02/09/1998, RFP Proposal submitted by Panorama. 

exhibit BB January 1998, RFP Proposal submitted by Westair. 

exhibit CC [Also, Item 1, exhibit 8] July 1992, Passenger Facility Charge application from 

Westchester Co. 

exhibit DD [Also, Item 1, exhibit 9] 11/09/1992, Letter from FAA to Westchester Co. 

approving Passenger Facility Charge for HPN. 

exhibit EE 10/12/2004, Avitat Presentation Slides from 2004 National Business Aviation 

Association Conference and Conference Agenda. 

exhibit FF [Also, Iteml, exhibit 33] undated, faxed on 04/30/1999, Draft speech by 

Commissioner Church. 

exhibit GG 05/01/2003, Letter from Avitat to Larry Salley, Transportation Commissioner, 

Westchester, Co. 

exhibit HH [Also, Item 1, exhibit 31] 01/11/2007, Letter from Salvatore J. Carrera, 

Westchester County Economic Development/Real Estate, to Alfred E. Donnellan 

(Panorama). _ . 

Page 47 of 50 
exhibit II [Also, Item 1, exhibit 13] 07/24/2001, hitemal Memo from Joel Russell, HPN 

Manager, to Sal Carrera, Westchester Co. Director of Real Estate about Panorama 

data. 

exhibit JJ [Also, Item I, exhibit 14] 06/11/1998, hitemal Memo fix)m Joel Russell, HPN 

Airport Manager, to Westchester Co. DOT Commissioner, Eric B. Langeloh. 

exhibit KK [Also, Item 1, exhibit 21 ] 09/05/2001, Letter from Panorama to Westchester Co. 

exhibit LL [Also, Item 1, exhibit 28] 03/14/2005, Letter from Westair to Joel Russell, HPN 

Manager. 

exhibit MM [Also, Item 1, exhibit 29] 03/22/2005, Letter from Panorama to Joel Russell, HPN 

Manager. 

exhibit NN [Also, Item 1, exhibit 25] 03/10/2003, Letter from Panorama to Joel Russell, HPN 

Manager. 

exhibit OO [Also, Item 1, exhibit 26] 07/02/2003, Letter from Peter Scherrer, Asst. HPN 

Manager to Panorama. 

exhibit PP 09/05/2002, Letter from Joel Russell, HPN Manager to Westafr. 

exhibit QQ 05/26/2004, Letter from Joel Russell, HPN Manager to Westair. 

exhibit RR 05/09/1991, Intemal Memo forwarding letters from general aviation users of HPN. 

Item 7 Declaration of Lawrence C. Salley, Commissioner of the Westchester County 

Department of Transportation, dated December 26, 2007. 

Item 8 Declaration of Peter Scherrer, HPN Manager, dated December 26, 2007. 

Item 8A Complainant's Unopposed Motion for Extension of time to file Reply, dated 

January 2, 2008. 

Item 8B Letter from FAA counsel granting request for extension, dated January 4, 2008. 

Item 9 Complainant's Reply, dated January 14, 2008. 

exhibit 1 05/15/2001, Handwritten Notes attributed to Harry Stanton, Assistant 

Commissioner of Transportation. 

exhibit 2 12/07/2000, Handwritten Notes attributed to Harry Stanton Assistant 

Commissioner of Transportation. 

Page 48 of 50 
exhibit 3 09/07/2001, Letter from Panorama to Joel Russell, HPN Manager, enclosing tenant 

list. 

exhibit 4 

exhibit 5 

exhibit 6 

exhibit 7 

exhibit 8 

exhibit 9 

exhibit 10 

exhibit 11 

exhibit 12 

Item 10 

exhibit SS 

Item 11 

Item 12 

Item 13 

Item 14 

Item 15 

01/14/2008, FAA Aircraft Registration databeise report. 

[Also, Item 1, exhibit 36] 06/27/2001, Letter from Westafr to Joel Russell, HPN 

Manager, enclosing customer lists. 

01/14/2008, FAA Aircraft Registration database report. 

01/14/2008, FAA Aircraft Registration database report. 

[Also, Item 1, exhibit 16] 10/26/2000, Handwritten Notes and supporting 

documents involving a meeting with Westair. 

[Also Item 1, exhibit 20] 08/21/2001, Letter from Westafr to Joel Russell, HPN 

Manager. 

08/10/2001, Letter from Joel Russell, HPN Manager, to Westafr. 

09/19/2007, Annual FBO Fuel Volume analysis. 

01/13/2008, Affidavit of Michael W. Dolphin. 

exh. A: 01/10/2008, email from Exxon/Mobile to Mike Dolphin reporting ftiel 

volume of Landmark Aviation at HPN. 

exh. B: Reports from Jetnet.com 

exh. C: 2004-2006, Complainant's analysis of Jet Fuel sales share at HPN. 

Respondent County of Westchester's Rebuttal, dated February 1, 2008. 

01/25/2008, Report of Avitat's fuel data & services from www.acukwik.com. 

FAA Form 5010 for Westchester County Airport, effective April 10, 2008. 

Extension of Time to File Appeal, dated July 10, 2008. Extends the time period 

for the Complamant to file an appeal to August 14, 2008. 

Complainant's Appeal from the Director's Determination, dated June 12,2008. 

Respondent's County of Westchester's Reply to Complainant's Appeal, dated 

September 23,2008. 

Notice of Extension of Time, dated December 2, 2008. Extends the time period for 

the Agency to issue a Final Decision to February 23, 2009. 

Page 49 of 50 
Item 16 Director's Determination, dated June 12,2008 

Page 50 of 50 
CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on t>&nk>M^ (? 7 \ 2009,1 caused to be placed in 

the United States mail (first class mail, postage paid) a tme copy of the foregoing 

document addressed to: 

Barbara E. Lichman, Ph.D. 

Steven M. Taber 

CHEVALIER, ALLEN & LICHMAN, LLP SEP 2 1 2009 

695 Town Center Drive, Suite 700 

Costa Mesa, California 92626 

Peter J. Kirsch 

David I. Spector 

KAPLAN KIRSCH & ROCKWELL, LLP 

1675 Broadway, Suite 2300 

Denver, Colorado 80202 

Richard Cashman 

James Wenzel 

County of Westchester 

18 Martine Avenue, Room 600 

White Plains, New York 10601 

Hand Delivered to: 

Part 16 Airport Proceedings Docket 

Ira Brooks 

Airport Compliance Division 

Federal Aviation Administration 

. j m