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ASSOCIATE S 

STEPHE N C. PEARSO N 

ELAIN E C. LIPPMAN N 

J.S . GEBHAR T 

nUB E N_D_ _GJ3M_E_Z 

REBECCA J. BALDWIN 

SHARON COLEMAN 

VIVIAN W. CHUMOF COUNSEL 

MARGARE T A. McGOLDRIC K 

MEG MEISE R 

JEFFRE Y A. SCHWAR Z 

BARR Y M. SMOLE R 

GLORIA TRISTAN I 

LEE C. WHIT E 

September 25, 2008 

Via Hand Delivery 

Mr. Randall S. Fiertz 

Director 

Office of Airport Compliance and Field Operations (AGO) 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Re: Letter from Complainants dated September 18,2008 

Northwest Airlines, Inc. et al. v. Indianapolis Airport Authority et al. 

FAA Docket 16-07-04 

Dear Mr. Fiertz: 

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The Indianapolis Airport Authority ("Authority") respectfully responds to the 

Complainants' letter to you dated September 18, 2008, in which they seek clarification of the 

following statement in the Determination: 

[i]f the Complainants agree to extend the Lease Agreement and not 

amend it to recognize the Credit, [t]his matter would continue to be 

a contract dispute and Part 16 would not be the appropriate venue. 

Determination at 33. Complainants argue that the statement must mean the opposite of what it 

says, and that the Complainants should be able to raise such future issues in fixture Part 16 

investigations. The Authority respectfully requests that you refrain from attempting to expound 

the Determination as suggested by the Complainants. 

At the outset the Authority notes that, while the Determination correctly concluded that 

the issues presented by the Complaint were unripe for agency review, it also made factual 

conclusions and interpretations of law and agency policy that were based on hypothetical or 
Mr. Randall S. Fiertz 

September 25, 2008 

Tap ^ 

potential future events. Because some of those conclusions might adversely impact the 

Authority if applied in future cases, the Authority sought timely review of the Determination by 

the Associate Administrator. It would be inappropriate for you to clarify the Determination 

while an administrative appeal is pending because any further issuances by the Director, 

particularly after an appeal has been filed, would risk confusing the issues on appeal and 

delaying the ultimate resolution of the case. 

Likewise, the Authority believes that you should refrain from speculating about future 

potential events and from announcing how you "could" or "would" rule if presented with such a 

case in the future, or even whether such a case would be subject to FAA jurisdiction under Part 

16. As clearly stated in the Determination, the role of FAA in a Part 16 investigation is to 

determine "whether an airport sponsor is currently in compliance with the applicable federal 

obligations." Determination at 13 (emphasis in original). It would be unreasonable for you to 

speculate further about the yet-unknovm results of the ongoing negotiations between the 

Authority and the Signatory Airlines, particularly in a case such as this, where the Complainants 

appear to be using their purported clarification request to leverage their position vis-a-vis the 

other Signatory Airlines and the Authority. As you stated in the Determination (at 29), "[i]t is 

paramount that the Complainants and the Respondents understand that the FAA does not 

arbitrate or mediate negotiations through a formal Part 16 complaint process." 

Finally, the Authority notes that the premise of the Complainants' argument for 

clarification is v^ong. At page 33, the Determination discusses three potential future 

circumstances. First it states that, if Complainants and the Authority agree on the rate treatment 

of FedEx's rent credit, there will be no issue under the grant assurances or the Rates and Charges 

Policy. Second it observes that, if Complainants and the Authority do not agree on a new rate 

methodology and the Authority imposes one, the reasonableness principles of the Rates and 

Charges Policy will apply. Third it notes that, "[i]f the Complainants agree to extend the Lease 

Agreement and not amend it to recognize the [cjredit, [t]his matter would continue to be a 

contract dispute and Part 16 would not be the appropriate venue." Complainants argue that such 

a statement must assume that the Authority continues to refrain from calculating landing fees on 

a basis that reflects FedEx's rent credit. But, if the Authority refrains from calculating landing 

fees on a basis that reflects the rent credit, there can be neither grounds to claim a violation of the 

Authority's Federal obligations nor any contract dispute. Thus, the only sensible interpretation 

is that, if the Complainants and the Authority agree on a rate methodology (by extending the 

current agreement or by entering into a new one) and the Complainants and the Authority 

continue to have a dispute about how FedEx's rent should be treated under the agreed 

methodology, such issues would be confract matters that are not appropriate for resolution in a 

Part 16 investigation. 
Mr. Randall S. Fiertz 

September 25, 2008 

Page 3 

For the foregoing reasons, the Authority respectfully requests that you refrain from 

expounding the meaning of the Determination, and allow the adminisfrative and judicial process 

in this case to run its proper course. 

Sincerely, 

Pablo O. Niiesch 

Jeffrey A. Schwarz 

Attorneys for the Respondents 

cc Robert A, Duncan 

Robert E. Cohn 

Patrick R. Rizzi 

Dave Aschenbach 

Thomas Newton Boiling 

Lorraine B. Halloway 

Robert W. Kneisley