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r UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

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Aero Ways, Inc., 

Complainant, 

V. 

Delaware River & Bay Authority, 

Respondent. 

iPESWEp 

FEB 4/iuiU 

PART 16 DOCKETS 

FAA Docket No. 16-09-12 

CD 

RESPONDENT DELAWARE RIVER AND BAY AUTHORITY'S 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 

OF ITS ANSWER AND MOTION TO DISMISS 

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MORRIS, NICHOLS, ARSHT & TUNNELL LLP 

R. Judson Scaggs, Jr. 

Leslie A. Polizoti 

Pauletta J. Brown 

Albert J. Carroll 

1201 N. Market Street 

P.O. Box 1347 

Wilmington, DE 19899-1347 

(302) 658-9200 

Attorneys for the Delaware River & Bay Authority 

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February 3, 2010 

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TABLE OF CONTENTS 

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PRELIMINARY STATEMENT 1 

STATEMENT OF FACTS 3 

I. THE PARTIES 3 

A. The DRBA & The New Castle Airport 3 

B. Aero Ways, Inc. 4 

II. THE DRBA-AERO WAYS RELATIONSHIP BEFORE AERO 

WAYS BECAME AN FBO 6 

A. Aero Ways Made Fueling Requests Years Ago, When It 

Emerged From Bankruptcy 6 

B. Aero Ways Accuses The Authority Of Improperly 

Allowing Other Tenants To Self-Fuel, Even Though Those 

Tenants Were Properly Self-Fueling And Were Not 

Similarly-Situated To Aero Ways 7 

C. The DRBA Solicits Aero Ways' Input On The Current 

gi Draft Oflts Minimum Standards 8 

* D. The DRBA Hires Specialized FAA Counsel To Assist With 

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Revisions To The Rules & Regulations And The Minimum 

Standards, And Decides To Allow Self-Fueling Only By 

Owners Or Sole Lessees 11 

W E. The DRBA Worked With Aero Ways To Find A Way To 

Allow Aero Ways To Fuel Its Largest Customer, But Aero 

Ways Abandoned The Proposal To Become An FBO 13 

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F III. THE DRBA-AERO WAYS RELATIONSHIP AFTER AERO 

WAYS BECAME AN FBO 15 

A. XO Jet Becomes A Tenant At New Castle Airport And 

Exercises Its Right To Self-Fuel 15 

B. The Authority Has Treated Parties Similarly Situated To 

Aero Ways In The Same Manner 18 
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TABLE OF CONTENTS (Continued) 

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C. The DRBA Did Not Discriminate Against Aero Ways 

When Aero Ways Violated DRBA Rules And Damaged 

The Card Reader At The FAA Gate 18 

D. Aero Ways' Remaining Allegations Concern Issues On 

Which The Parties Appear To Agree But Which Have Not 

Yet Been Implemented, And Are Thus Not Cognizable In 

A Part 16 Action 20 

IV. AERO WAYS' PART 16 COMPLAINT 21 

ARGUMENT 23 

I. THE FAA IS ONLY CONCERNED WITH AN AIRPORT 

SPONSOR'S CURRENT COMPLL\NCE WITH THE GRANT 

ASSURANCES, AND AERO WAYS' COMPLAINT DOES NOT 

RAISE CURRENT COMPLD^CE ISSUES 23 

II. AERO WAYS HAS FAILED TO SUBMIT SUFFICIENT 

EVIDENCE TO SUPPORT ITS COMPLAINT 25 

III. THE AUTHORITY'S RESPONSE TO THE SPECIFIC COUNTS 26 

A. Aero Ways Has Failed To Demonstrate That The Authority 

Has Violated Grant Assurance 22(f), Because The DRBA 

Allows Aircraft Owners To Fuel Their Own Aircraft Using 

Their Own Employees And Aero Ways Never Owned Any 

Aircraft 27 

B. Aero Ways Has Failed To Demonstrate That The DRBA 

Has Violated Grant Assurance 22(d), Because The DRBA 

Permits Air Carriers To Self-Serve And Aero Ways Never 

Held An Air Carrier Certificate 28 

C. Aero Ways Has Failed To Demonstrate That The DRBA 

Has Violated Grant Assurance 22(h), Because Aero Ways 

Has Not Shown That The DRBA Imposes Unreasonable Or 

Discriminatory Conditions Or That The DRBA Has Not 

Selectively Applied Its Standards Or Regulations 30 

D. Aero Ways Has Not Demonstrated That The Authority Has 

Violated Grant Assurance 22(a), Because Aero Ways Has 

Not Alleged or Shown Unjust Discrimination Or That The 

Airport Is Not Available On Reasonable Terms 31 
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TABLE OF CONTENTS (Continued) 

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E. Aero Ways Has Not Demonstrated That The Authority Has 

Violated FAA Order 5190.6A, Chapter 7-26(e)(l), Because 

It Does Not Exist And In Any Event, Order 5190.6A Was 

Not Regulatory And Did Not Govern Airport Sponsor 

Conduct 32 

IV. AERO WAYS' REMAINING CLAIMS DO NOT STATE 

CAUSES OF ACTION, ARE PURELY SPECULATIVE, OR 

ARE OTHERWISE SIMPLY WRONG 33 

A. Aero Ways Has Not Supported Its Claim That The 

Authority's Dealings With Aero Ways Regarding XO Jet's 

Rights Were Inappropriate Or Misleading 33 

B. Aero Ways Has Not Shown That Alleged Instances Of 

Non-communication Are Grant Assurance Violations 34 

C. Aero Ways Has Not Demonstrated That The Authority 

Amended Its Policies In Order To Affect Aero Ways 35 

D. Aero Ways Has Not Demonstrated That The Authority 

Discriminated Against Aero Ways Regarding the 2008 

Card Reader Incident 37 

CONCLUSION 37 

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IV. 

TABLE OF AUTHORITIES 

Page(s) 

CASES 

Adventure Aviation v. City of Las Cruces, 

FAA Docket No. 16-01-14, 2003 WL 22696923 (FAA Sept. 9, 2003) 25 

Airborne Flying Serv., Inc., v. City of Hot Springs, Arkansas, 

FAA Docket No. 16-07-06 (FAA Dec. 18, 2007) 32 

AmAv, Inc. v. Maryland Aviation Administration, 

Docket No. 16-05-12 (FAA March 16, 2006) 15,16,28-29 

Appalachian Star Ventures, Inc. v. Tri-Cities Airport Comm 'n, 

FAA Docket No. 16-96-02,1997 WL 1120735 (FAA Oct. 22,1997) 23 

Asheville Jet, Inc. v. Asheville Reg'l Airport Auth. etal.. 

Docket No. 16-08-02 (FAA Oct. 1,2009) 26-27 

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pi BMI Salvage Corp. v Miami-Dade County, 

J FAA Docket No. 16-05-16 (FAA July 25, 2006) 33-34 

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Boca Airport, Inc. v. Boca Raton Airport Auth., 

FAA Docket No. 16-04-02, 2004 WL 5284751 (FAA Nov. 29, 2004) 26 

FAA Airport Compliance Manual, 

FAAOrder5190.6B 27,32,33 F 

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in the Matter of the City of Santa Monica, 

FAA Docket No. 16-02-08, FAA Order No. 2009-1, p.26-27 (FAA July 8, 2009) 25 

Jet 1 Center, Inc. v. Naples Airport Auth., 

f FAA Docket No. 16-04-03 (FAA Jan. 4, 2005) 27 

JetAway Aviation, Inc. v. Montrose County, Colorado & the Montrose County Bldg. 

Auth., 

FAA Docket No. 16-08-01, 2009 WL 2136622 (FAA July 2, 2009) 25, 26 

M. Daniel Carey and Cliff Davenport v. Afton-Lincoln County Mun. Airport Joint Powers 

Bd., 

FAA Docket No. 16-06-06 (FAA Jan. 19, 2007) 25, 27 

Monaco Coach Corporation v. Eugene Airport and the City of Eugene Oregon, 

Docket No. 16-03-17 (FAA July 24, 2004) 28 

Richard E. Steere v. County of San Diego, 

California, FAA Docket No. 16-99-15, 2004 WL 3198209 (FAA Dec. 7, 2004) 23, 24 
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V. 

TABLE OF AUTHORITIES (Continued) 

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Rick Aviation, Inc. v. Peninsula Airport Comm 'n, 

FAA Docket No. 16-05-18, 2007 WL 1450398 (FAA May 8, 2007) 25 

Roadhouse Aviation v. City of Tulsa, 

FAA Docket No. 16-05-08, 2007 WL 1966160 (FAA June 26, 2007) 26 

Thermco Aviation, Inc. v. County of Los Angeles, 

FAA Docket No. 16-06-07 (FAA Dec. 17, 2007) 24 

Wilson Air Center LLC, v. Memphis and Shelby County Airport Auth., 

FAA Docket No. 16-99-10, 2001 WL 1085348 (FAA Aug. 30, 2001) 24 

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1. 

PRELIMINARY STATEMENT 

Aero Ways, Inc. ("Aero Ways") filed its Complaint pursuant to 14 C.F.R. Part 16 

on September 29, 2009, alleging that the Delaware River and Bay Authority (the "DRBA" or the 

"Authority") has, since 2002, unjustly discriminated against Aero Ways. All of the claims in the 

Complaint should be dismissed. Virtually every one involves purported past violations that -

even if they were violations, which they are not - are not cognizable in a Part 16 proceeding. 

Some claims fail to state causes of action. Some are entirely unsupported - without any basis in 

the record. Some allegations are actually contrary to the record. Some allegations are 

"supported" only by unsworn statements that are largely hearsay and made without personal 

knowledge. None of the claims warrant further action by the FAA. 

F Aero Ways' Complaint relates to allegations of past violations, even though the 

focus of a Part 16 proceeding is on current compliance. The DRBA permits Aero Ways, now 

that it is an FBO, to fixel any aircraft at the Airport; it permits XO Jet, Inc. ("XO Jet"), as a Part 

F 135 Air Carrier, to self-fiiel the aircraft on its certificate. The allegations in the Complaint are 

simply improven. 

In addition, the DRBA has been in past compliance with the Grant Assurances. 

Aero Ways' Complaint is almost exclusively about historical occurrences, as demonstrated by its 

request for over $10 million in "damages" - obviously inappropriate in this proceeding' - and by 

its incorporation of Aero Ways' interpretation of most of its business history with the DRBA 

dating back to 2002. One of Aero Ways' theories of alleged past discrimination concerns the 

prohibition against Aero Ways fiieling the aircraft of its customers prior to becoming an FBO. 

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FAA Notice of Docketing at 1 n.l (DRBA Ex. ("DX") 1). All "DX" exhibits are 

attached hereto. 
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2. 

Under DRBA regulations, only aircraft owners or sole lessees, using their own employees and 

equipment, have "self-fiieling" rights. Not being the owner or sole lessee of any aircraft - and 

seeking instead to fuel the aircraft owned by its customers - Aero Ways was prohibited fi-om 

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f self-fiieling. The Authority repeatedly informed Aero Ways of these regulations and worked 

W with Aero Ways to try to find other ways to satisfy its customers' fueling needs. At the end of 

2005, Aero Ways chose to become an FBO to achieve its business goal of fiieling its customers' 

aircraft. The DRBA in no way forced this decision, nor could it. Despite the Authority's efforts 

W- to work with Aero Ways, and despite Aero Ways' own decision to become an FBO, Aero Ways 

recklessly accuses the DRBA of discriminatory motives and labels the Authority's position as illwill and FBO protectionism when it simply is not. The fact that Aero Ways became an FBO -

W' able to compete with existing FBOs - is itself evidence that the Authority did not seek to protect 

the existing FBOs from competition. 

Another of Aero Ways' theories of unjust discrimination is its allegation that the 

DRBA treated Aero Ways differently fi-om XO Jet. Aero Ways and XO Jet, however, are 

different entities that are not similarly situated. Aero Ways was a Part 91 operator that did not 

own or solely lease the aircraft it managed, held no Air Carrier Certificates, and did not operate 

as an FBO (until 2007). Aero Ways, therefore, could not self-fuel (or sell fuel to third parties, 

for that matter). XO Jet, in contrast, was a Part 135 certificate holder seeking only to fuel the 

aircraft on its certificate - which the Grant Assurances and applicable federal law require the 

Authority to allow XO Jet to do. Aero Ways does not dispute XO Jet's right to fuel the aircraft 

on its certificate, but instead suggests that Aero Ways could have "piggybacked" on one of its 

customers' Part 135 certificates in order to fuel its customers' aircraft. That suggestion is 

irresponsible and improper. It would have bypassed, for example, the increased safety 

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regulations required of Part 135 certificate holders, just to allow Aero Ways to fiiel whatever 

aircraft it wanted to fiiel. Therefore, XO Jet and Aero Ways were not (and are not) similarly 

situated, and the Authority did not discriminate against Aero Ways by allowing XO Jet to 

exercise its right (guaranteed under the Grant Assurances) to self-handle. To the contrary - the 

DRBA would have been at risk of violating the Grant Assurances and discriminating against XO 

Jet if the DRBA had denied XO Jet its right to self-service aircraft on its certificate. 

Aero Ways' remaining allegations, including the 2008 card reader incident, are 

W not cognizable claims. Far from being unjust discrimination, they are largely examples of Aero 

Ways being overly litigious, and have no place in a Part 16 action. 

The Director should dismiss Aero Ways' Complaint in its entirety, and determine 

T that Aero Ways failed to show that the DRBA (i) discriminated or is discriminating, against Aero 

Ways; (ii) improperly denied Aero Ways the opportunity to fuel its customers' aircraft; and (iii) 

imposed or is imposing, unreasonable restrictions on Aero Ways in violation of Grant 

f Assurances 22(a), (d), (f), (h), or any other applicable FAA Assurances or federal requirements. 

STATEMENT OF FACTS 

I. THE PARTIES 

A. The DRBA & The New Castle Airport 

The DRBA is a bi-state government agency, created in 1962 by a compact 

between the States of Delaware and New Jersey. It operates the Delaware Memorial Bridge; the 

Cape May-Lewes Ferry system; the Three Forts Ferry Crossing; and the New Castle, Cape May, 

Millville, Delaware Airpark and Dover Civil Air Terminal Airports (DX 2, Williams Decl. ^4). 

The DRBA has operated the New Castle Airport (the "Airport") since June 1995, when the FAA 

formally approved the DRBA's thirty year lease of the airport from New Castle County, 

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Delaware (zJ.). The New Castle Airport is a Class-I certified FAA facility (id.). It is home to 

four FBOs: Aero-Taxi, Aero Ways, Atlantic Aviation-Wilmington and Dassault Falcon Jet (id.). 

Don Rainear was the DRBA's Deputy Executive Director from 2002 until his 

retirement fi-om the DRBA in May 2009. His duties included planning Authority-related 

economic development initiatives; internal and external communication strategies; handling 

governance matters; fostering on-going working relationships with state and local officials; and 

supervising all DRBA marketing activities (see DX 3 (Oct. 2, 2002 DRBA News Release, 

W available at http://www.drba.net/press/releases/files/021022execdirec.pdf)). Stephen Williams, 

the DRBA's current Director of Airports, who worked with Rainear. WilUams came to the 

Airport in January 2005, after seventeen years of managing other airports, including the Republic 

W Airport at Long Island, Atlantic City International Airport, and Bader Field Airport in Atlantic 

City (DX 2, Williams Decl. 112). 

Morris, Nichols, Arsht & Tunnell LLP ("Morris Nichols") has represented the 

I DRBA for over thirty years. Michael Houghton, a partner at Morris Nichols, has acted as 

Delaware general counsel to the DRBA for 10 years. The DRBA has also periodically retained 

speciaUzed FAA counsel as appropriate from time to time. As relevant to this proceeding, the 

DRBA retained Thomas Devine, then a partner at Palmer & Dodge and now a partner at Kaplan 

Kirsch & Rockwell LLP, to assist with the drafting and adoption of the Airport's revised 

Minimum Standards and Rules and Regulations in 2005 (DX 2, Williams Decl. 1(7). 

B. Aero Ways, Inc. 

Aero Ways began operations at the Airport in 1999, as a corporate aircraft 

management provider (see DX 4 (Aero Ways' website, www.aerowaysinc.com/about.html, last 

visited Jan. 10, 2010)). Before it became an FBO in 2007, Aero Ways "provide[d] corporations 

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and aircraft operators with a cost effective alternative to an in house flight department," acting as 

"an outsourced flight department for corporations and aircraft operators which, when contracted, 

plans, maintains, staffs, administers, prepares and pilots corporate aircraft" (DX 5 (Aero Ways' 

October 9,2002 Proposed Business Plan Summary)). 

f* Aero Ways managed its customers' aircraft (primarily as a non-exclusive 

manager) - but it did not own or solely lease any aircraft. Aero Ways has operated, and does 

operate, under the Rules of Part 91 of the Federal Aviation Regulations (the "FARs"), i.e. the 

F general operating rules that apply to all aircraft (id.). It did not and does not operate any aircraft 

under FAR Part 91, subpart K as a fractional owner. It has never held any Air Carrier 

Certificates. 

In March 2007 - following its decision to become an FBO so it could sell fuel to 

its customers - Aero Ways became the fourth FBO at New Castle Airport (DX 6). As an FBO, 

Aero Ways can now fuel any aircraft at the Airport. 

I Charles Belmont is Aero Ways' Chief Executive Officer and founder. Ronald 

Beckson is its Chief Financial Officer, and Edward Bohn is its Chief Operating Officer. Aero 

Ways' outside counsel are William Maiming of Saul Ewing, LLP (formerly of Klett Rooney 

Lieber & Schorling and Buchanan Ingersoll & Rooney PC), and Joseph Lamonaca of Joseph 

Michael Lamonaca, Attorney at Law, PC. 

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II. THE DRBA-AERO WAYS RELATIONSHIP BEFORE AERO 

WAYS BECAME AN FBO 

A. Aero Ways Made Fueling Requests Years Ago, When It 

Emerged From Bankruptcy 

Aero Ways filed for bankruptcy in 2002, with the DRBA as its only creditor. 

According to the recollection of its counsel,^ Aero Ways filed bankruptcy so "that it could get 

out o f its leases with the DRBA (DX 7, Compl. Ex. D). After Aero Ways emerged from 

bankruptcy in March 2003 (DX 8, Compl. Ex. F.24), it sought to achieve two business objectives 

- to obtain the right to fuel the aircraft it managed for its customers and to lower its occupancy 

costs (see, e.g., DX 9, Compl. Ex. F.4; DX 10, Compl. Ex. F.44). As described below, the 

DRBA worked with Aero Ways to attempt to find ways that Aero Ways could fuel the aircraft of 

f* its customers, while also trying to accommodate Aero Ways' changing space needs. 

The fueling issue was problematic for Aero Ways. At the time, the Airport's 

Rules and Regulations provided that "[sjelf-fiieling by aircraft owners or lessees is permitted by 

f the DRBA only to the extent required by Federal law" (DX 11 at p. 15, § 5.16 (2000 Rules & 

Regulations)), and also provided that "[a]n FBO is the only aeronautical user that shall have the 

right to sell fiiel, oil, or other petroleum products to other aeronautical users on the Airport" (id. 

at § 1.18)."' Then-effective FAA Grant Assurances gave: (i) aircraft owners the right to self-fiiel 

using their own employees and equipment (22(f) (owners)) and (ii) Air Carrier Certificate 

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^ This counsel, WiUiam Manning, was not the same counsel who advised Aero Ways to 

file for bankruptcy. Manning "got involved" with Aero Ways at the request of Richard 

Siegal of Bi-State Oil Company, the Aero Ways' customer who wanted his planes fueled 

by Aero Ways (DX 7, Compl. Ex. D). ^ Additionally, some New Castle Airport tenants had fueling rights written into their leases. 

These leases had been executed over ten (10) years ago (most before the DRBA gained 

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control of the airport from New Castle County). The DRBA has been honoring these 

leases (DX 2, Williams Decl. \5). Since then, the DRBA has not extended or granted any 

new civilian leases containing fuehng rights to any non-FBOs (id.). 
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holders the right to fuel the aircraft included on their certificate (22(d) (air carriers)). Therefore, 

non-FBOs that managed aircraft - such as Aero Ways - could not self-fliel those managed 

aircraft at the Airport. 

B. Aero Ways Accuses The Authority Of Improperly 

Allowing Other Tenants To Self-Fuel, Even Though 

Those Tenants Were Properly Self-Fueling And Were 

Not Similarly-Situated To Aero Ways 

In March 2004, Aero Ways sought to purchase land at the Airport for construction 

of a new hangar, and in connection with this request, sought the ability to fuel the aircraft of its 

customers - primarily, Siegal.'* In Manning's words, during a meeting with Aero Ways and the 

P DRBA about this fueling request, Rainear indicated "that the current Authority policy would be 

maintained... but that this might be a subject considered in a process led by the new director 

whenever he or she takes office" (DX 12, Compl. Ex. F.8). Consistent with what Rainear said, 

W the DRBA sent a Term Sheet for the purchase of the land to Aero Ways that stated: "[s]elffiieling requested - will reach final determination with New Airport Director" (DX 13). 

In response to the Term Sheet, Aero Ways again indicated that it "initially seeks 

W only the right to fuel its own customers," alleged that "the fueling preference given to others at 

p, the Airport is unfair," and noted its belief that the tenant in another hangar was exercising selff 

fueling rights (DX 12, Compl. Ex. F.8). Aero Ways cited to one of the Grant Assurances in the 

I Airport's Master Agreement, that the DRBA will not "prevent any person, firm or corporation 

r '^ Aero Ways' 2004 request to purchase land came after its 2003 request to lease or 

purchase the Hercules hangar from the DRBA (see DX 14, Compl., Exs. F.2; DX 15, 

Compl. Ex. F.3; DX 9, Compl. Ex. F.4; DX 12, Compl. Ex. F.8. When the DRBA put 

the hangar out for bid, however. Aero Ways decided not to make an offer because it felt 

the bidding price was too high (DX 9, Compl. Ex. F.4; DX 16 Compl. Ex. F.22). 
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operating aircraft on the airport from performing any services on its own aircraft with its own 

employees [including... fueling]" (id.) (emphasis added). 

However, Aero Ways' inability to fuel its own customers is clear from the very 

quote that Aero Ways cited, which is from Grant Assurance 22(f). Aero Ways did not own any 

aircraft and clearly was seeking to fuel its customers' aircraft. It therefore did not have selffiieling rights under applicable FAA requirements. As for Aero Ways' allegation about the 

tenant at the Annenberg hangar - that tenant was self-fiieling aircraft that it owned (Williams 

f Decl. 1|6). 

The DRBA contacted the FAA in response to Aero Ways' letter and the DRBA 

had a follow-up meeting with Manning. In Marming's words. Aero Ways indicated that it 

W "continues to believe that the Authority should not prohibit Aero Ways from selling fuel to its 

own managed aircraft customers," and that "based on today's conversation [between Aero Ways 

and the DRBA] about the FAA meeting [between the DRBA and the FAA], I doubt that the FAA 

would disagree (DX 17). In other words, whatever 'reasonable' conditions the Authority can put 

on the sale of fuel, I can't imagine the FAA would agree with a prohibition against an aircraft 

management company fueling its own managed aircraft" (id.). 

Based on the conversation with the FAA, the text of Grant Assurance 22(f), and 

the Airport's Minimum Standards and Rules & Regulations, the Authority disagreed with Aero 

Ways and maintained its position that Aero Ways could not "self-fiiel" managed aircraft owned 

by its customers. 

C. The DRBA Solicits Aero Ways' Input On The Current 

Draft Of Its Minimum Standards 

Aero Ways continued to seek the right to fiiel its customers' aircraft. During "a 

very good meeting" (DX 16, Compl. Ex. F.22) on April 28, 2005 that included Manning, 

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Williams and Rainear, the parties again discussed Aero Ways' request to fuel to its customers' 

aircraft.^ According to Maiming, Williams explained that "Aero Ways may only fuel planes that 

are owned or leased by it" and indicated that "the non-discrimination provisions of the FAA 

agreement do not require the Authority to permit Aero Ways to fuel planes in its care, custody 

and confrol" (DX 18, Compl. Ex. F.ll). In attempting to work with Aero Ways, Williams 

agreed to provide Aero Ways with the current draft of the proposed revisions to the Airport's 

Minimum Standards (DX 16, Compl. F.22). 

Williams sent a copy of the draft Minimum Standards for Aeronautical Services at 

New Castle Airport (the "Minimum Standards") to Manning, and asked Aero Ways for "any 

comments you may have on its regulatory content, or any questions regarding its philosophical 

and policy intent" (see DX 19, Compl. Ex. F.13; DX 20, Compl. Ex. F.14). This draft clearly 

stated that it was a draft, as did WilUams' email (see DX 21, Compl. Ex. F.12; DX 19, Compl. 

Ex. F.13). The self-fueling provision in this draft stated that self-fueling "shall only be allowed 

P by aircraft owned, leased or managed under a written contract" and required "a copy of the 

FAA's aircraft registration certificate for all aircraft verifying sole ownership by the Permittee, 

or proof of being the sole operator under a lease or management confract for said aircraft" (DX 

21at33, Compl. Ex. F.12). 

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Because Aero Ways' immediate need was space, between June 2004 and this April 28, 

2005 meeting, the Authority found temporary hangar space for Aero Ways, and resolved 

an issue with the length of leases that it could grant (see DX 22, Compl. Ex. F.IO). As 

Manning later explained, "[the Authority] could not offer a land lease long enough to 

satisfy lenders (it proposed a 5 year term with three 5 year extensions - not enough [to] 

amortize the cost of a new hangar). In that regard, though, the Authority's hands were 

tied - its master lease from New Castle County wasn't long enough to give longer term 

deals" (DX 16, Compl. Ex. F.22). 
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Aero Ways did not comment on the draft. Instead, Manning "responded by 

agreeing to those draft standards" (DX 16, Compl. Ex. F.22). As Manning wrote to WilUams: 

"[i]n order to make sure that Aero Ways qualifies for fiieling rights under your new minimum 

standards, we have revised its standard form agreements with its customers" (DX 23, Compl. Ex. 

F.15). Manning also attached a draft, un-executed "exclusive management agreement" - in draft 

form because Aero Ways' existing management contracts were non-exclusive - and requested 

Williams' confirmation that the agreement was sufficient under the proposed draft Minimum 

Standards (id). 

Surprised by Aero Ways' response, the DRBA reiterated that the draft was 

unofficial and non-binding (in fact, the Authority's Board of Commissioners had not even seen 

the draft, let alone adopted it). In a letter dated August 22, 2005, Rainear reminded Aero Ways 

that: 

[T]his is an ongoing process and final text [of the Minimum 

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Standards] has not been completed or adopted by the Board of 

Commissioners of the Authority. As a courtesy to you, at our last 

meeting, we provided you with the most recent draft of the 

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Minimum Standards; however, the draft was just that - a draft of a 

work in progress. The content of that draft does not reflect final 

decisions or policies of the Authority and is not binding on the 

(DX 24, ComplAuthority . Ex. F.20). . 

1^ Rainear and Belmont spoke again about fiieling in September 2005. When 

Rainear indicated that the Airport may decide to allow only owners of planes to self-fiiel, 

Belmont responded that Siegal (Aero Ways' customer) might decide to lease or purchase a 

f hangar and fuel his planes using his employees (DX 25, Compl. Ex. F.29). Notwithstanding this 

conversation, the next day, Belmont emailed Rainear that "we have also redrawn our customer 

agreements to ensure that they meet the requirements for fiieling rights that were in the 
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Authority's draft minimum standards..." and asked that the DRBA "confirm that the 

relationship between Aero Ways and its managed aircraft meets the Authority's standards" (id.) 

(emphasis added). Rainear again reiterated that "the draft that you received was a very early 

DRAFT[;] it is not our current draft nor does it reflect our current thinking on some of the issues 

contained therein" (id.). 

D. The DRBA Hires Specialized FAA Counsel To Assist 

With Revisions To The Rules & Regulations And The 

Minimum Standards, And Decides To Allow SelfFueling Only By Owners Or Sole Lessees 

In 2005, the DRBA hired Devine as specialized FAA counsel to assist with the 

revisions to the draft Minimum Standards and Rules and Regulations. After considering 

Devine's advice and discussions with the FAA, the DRBA decided that it would not permit 

operators of managed aircraft - exclusive or otherwise - to fliel others' aircraft (WilUams Decl. 

W 1f9). The rationale was that permitting aircraft managers to fuel others' aircraft without having to 

comply with the substantial requirements with which FBOs need to comply to fuel others' 

aircraft could amount to economic discrimination and could subject the DRBA to a Part 16 

F complaint by the FBOs. The DRBA was also concerned with a "slippery slope" whereby 

allowing managers to fiiel their managed aircraft would create a proliferation of managers doing 

so, creating safety and environmental concerns (id). 

T Thus, the October 2005 drafts of the Minimum Standards and the Rules and 

Regulations for New Castle Airport ("the Rules and Regulations") indicated that only owners or 

sole lessees of aircraft could self-fiiel, and removed the provision in the May 2005 draft that 

would have allowed operators of exclusively managed aircraft to self-fliel (DX 21 at 33, Compl. 

Ex. F.12). Upon receiving these drafts. Manning wrote to the DRBA's counsel, Michael 
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f Houghton, and alleged that "the proposed regulations [are] intended to prohibit Aero Ways from 

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fueling the aircraft that it manages on the behalf of aircraft owners" (DX 26, Compl. Ex. F.33). 

Houghton explained that there was no intention to single out Aero Ways, and that 

the changes to the drafts were made because of a poUcy and legal review conducted by the 

DRBA and its counsel: 

the regulations are not 'intended to prohibit Aero Ways' from 

fueling aircraft it manages on behalf of aircraft owners but rather, 

reflect decisions made, after lengthy policy and legal review, 

addressing the manner in which all parties operating at the airport 

will be conducting business in compliance with applicable federal 

standards. 

(DX 26, Compl. Ex. F.33). 

Manning retreated from his characterization, and acknowledged both that the 

changes made to the draft were not intentionally directed to Aero Ways and that under the selffiieling provision of the October 2005 draft - which was subsequently enacted - Aero Ways had 

no ability to fiiel its customers: 

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• My comment about the intention behind the Min. Standards was 

not intended to be pejorative. Instead, I was merely confirming my 

p imderstanding that Aero Ways would not be permitted to ftiel its 

' customers' aircraft, which appears to be the case. ... While Aero 

Ways disagrees with the policy decision, I am attempting to stay 

T away from that difference of view in attempting to resolve a 

significant practical problem. 

T (id.). Nevertheless, Aero Ways still alleges in paragraph 22 of the Complaint that "the DRBA 

undertook to amend their minimum standards... as a result of negotiations with Aero Ways" and 

that the DRBA "fail[ed] to amend the minimum standards as was represented .... " That claim 

I is incorrect in several significant ways. The DRBA undertook to review its Minimum Standards 

and Rules and Regulations independently of Aero Ways (DX 2, Williams Decl. 1f8); provided 

Aero Ways with multiple drafts of those documents as a courtesy; sought Aero Ways' comments 
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on the draft; and clearly indicated - numerous times - that those drafts were only drafts and were 

subject to change. Simply put, the DRBA did not and could not bind the Commissioners as to 

the ultimate outcome of the Minimum Standards and Rules and Regulations review/revision 

process. 

E. The DRBA Worked With Aero Ways To Find A Way 

To Allow Aero Ways To Fuel Its Largest Customer, But 

Aero Ways Abandoned The Proposal To Become An 

FBO 

Rainear, Williams and Belmont soon agreed that they could figure out a way to 

resolve the "significant practical problem" in Manning's October 2005 email and allow Aero 

Ways' largest customer, Siegal, to fiiel his planes (DX 2, Williams Decl. If 10). Manning and 

Houghton discussed the specifics. One proposed arrangement was that Siegal would own the 

fliel tank and "shared" employees (of both Aero Ways and Siegal) would fliel the planes (e.g., 

f DX 26, Compl. Ex. F.33; DX 27; DX 28). The DRBA worked with Aero Ways to develop this 

proposal (see id.; DX 2, WilUams Decl. If 10). 

After the Minimum Standards and Revised Rules and Regulations were adopted, 

f- the DRBA and Aero Ways met on December 21, 2005 (see DX 29; DX 30). During that 

meeting, another proposal was floated - that Siegal would lease his planes to Aero Ways (DX 

30). By January 6, 2006, Rachel Dwares, an attorney at Morris Nichols, responded to Manning 

W that Devine had checked with the FAA, and passed along the FAA's guidance that "the FAA 

does not have a problem with a sublease provided that there is a single sublessee and the lease is 

a long term lease - at least one year. In addition, the rent paid for the sublease must be roughly 

I equivalent to the rent that a true lessee would pay . .." (DX 30). 

Also during the December 21, 2005 meeting, Manning and Belmont informed the 

DRBA that Aero Ways was in negotiations to manage multiple planes owned by another 
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f company. Aero Ways understood that it would have to become an FBO to sell fliel to those 

planes (even if, in the meantime, something could be worked out so Aero Ways could fuel 

Siegal's planes). In fact, during a January 26, 2006 meeting with Aero Ways, Manning, DRBA, 

and Morris Nichols, Manning stated that "Aeroways' plans are the same as they were in 

December - Aeroways is interested in offering fuel to all managed aircraft customers and is 

willing to become an FBO in order to do so" (DX 31, Compl. Ex. F.37) (emphasis added). 

Aero Ways chose two hangars for its permanent FBO home, and was ultimately 

the winning bidder for them. An issue then arose because Aero Ways sought confirmation from 

the Authority that, on the day of closing of the hangar purchase. Aero Ways could open for 

business as an FBO. The DRBA could not give such confirmation, because Aero Ways had not 

yet met the other requirements to become an FBO - which other requirements were related 

among other things, to safety and environmental concerns (DX 32, Compl. Ex. F.45; DX 33, 

Compl. Ex. F.50). The DRBA did, however, certify that the purchase of the hangars gave Aero 

W Ways enough space to satisfy that FBO requirement, and told Aero Ways the remaining 

requirements for becoming an FBO. In August 2006, Williams met with Aero Ways and 

discussed operational and procedural aspects of the fiiture Aero Ways FBO operation (DX 2, 

1^ Williams Decl. IfH)- WilUams also identified in writing for Belmont the requirements for 

becoming an FBO that Aero Ways had satisfied and the requirements that were outstanding (DX 

32, Compl. Ex. F.45). 

F Manning indicated on August 31 that the DRBA's letter informing Aero Ways of 

what it had to do before becoming an FBO "is not enough" (DX 34, Compl. Ex. F.46). 

However, within a month. Aero Ways sent the executed hangar purchase agreements to the 

¥ DRBA and proposed a process for resolving the remaining FBO items (DX 33, Compl. Ex. 

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F.50). This resulted in an amendment to the agreements for the hangars, to extend the closing 

date and to put into the agreement the remaining list of items that Aero Ways had to satisfy to 

become an FBO. Although Aero Ways made a last-minute change of the identity of the 

acquisition entity, which delayed the closing date, the Authority accommodated the change and 

the closing occurred on February 9, 2007. Aero Ways satisfied the remaining requirements and 

became an FBO on March 12,2007 (DX 6). 

III. THE DRBA-AERO WAYS RELATIONSHIP AFTER AERO 

WAYS BECAME AN FBO 

A. XO Jet Becomes A Tenant At New Castle Airport And 

Exercises Its Right To Self-Fuel 

In late 2007, XO Jet, a private aviation company, became a tenant at the Airport. 

Unlike Aero Ways - a non-air carrier Part 91 operator - XO Jet is an air carrier and holder of a 

Part 135 certificate (DX 35, Compl. Ex. F.71). As such, according to federal requirements, XO 

Jet has the option to self-handle, including to self-fiiel; or, it may choose to confract out to third 

parties providing these services (Grant Assurance 22(d); AmAv, Inc. v. Maryland Aviation 

Administration, FAA Docket No. 16-05-12 (FAA March 20, 2006) (Final Decision and Order at 

p.5) (affirming Director's Determination that AmAv was allowed to self-fiiel aircraft operated 

under its Part 135 certificate and stating that "[t]he FAA finds that [the Airport] may not prevent 

AmAv from providing fiieling services to their Part 135 operation...")). Part 135 certificate 

rules do not require the air carrier to have actual ownership of the aircraft in question in order to 

W self-fuel, and ownership is not a requirement for self-handling rules to apply (FAR § 135.25(c)). 

However, the aircraft must be operated as part of the company's commercial air carrier business 

for this right to be recognized and exercised by the certificate holder (FAR §135.77). 
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XO Jet elected to exercise its option to self-handle at the Airport. It therefore has 

the right to dispense its own fuel into aircraft operated under its Part 135 certificate, but may not 

sell or transfer fuel to any third party operator (e.g., AmAv, FAA Docket No. 16-05-12 at 5 ("The 

FAA finds that [the Airport] may not prevent AmAv from providing fiieling services to their Part 

135 operation...."); DX 36 at p. 12, §IV A ("An FBO is the only Person allowed to sell fiiel to 

other Persons at the Airport.")). In doing so, XO Jet of course must comply with the Airport's 

self-fiieling rules, as set forth in Section 5.16 of the Rules and Regulations, which it does (DX 2, 

Williams Decl. ^12). Aero Ways alleges that XO Jet does not have a 5000 gallon fiiel tank of 

Avgas on its leased property, which Aero Ways says is required under Section 5.16(d) (Compl. 

^16 n.3). XO Jet, however, does not use Avgas in its aircraft (DX 2, Williams Decl. |12). 

F Therefore, it need not (and does not) have a 5000 gallon fuel tank of Avgas on its leased property 

(id.). In confrast. Aero Ways, as an FBO, is subject to the requirement to provide Avgas for sale 

(DX 36, III.8.a), and thus must have an Avgas tank. There would be no purpose to require a selfF fueler like XO Jet to have a tank for gas it does not use; however, it is entirely reasonable - and, 

in fact, required by the Airport's Minimum Standards - to require an FBO like Aero Ways to 

have a tank for gas that it is required to provide for sale. 

XO Jet signed a lease with the DRBA on November 20, 2007. Confrary to Aero 

Ways' assertion (Compl. ^ 9), XO Jet was not given fiieling rights pursuant to its lease. The 

lease provides that XO Jet may use the fuel farm on its leased property, granting XO Jet "the 

exclusive possession and fiill confrol of the two (2) 12,000 gallon fliel tanks ("Fuel Tanks") that 

comprise the fuel farm located on the southeastern comer of the Premises)" (DX 37, (§ 1(a) of 

XO Jet Lease). XO Jet's ability to fuel the aircraft on its Part 135 certificate comes from its 

status as an air carrier. Aero Ways alleges a conversation between its CEO and the Manager of 

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XO Jet about the terms of XO Jet's confract with the DRBA (Compl. Tf 15), but as the DRBA 

was not a party to that conversation, it cannot speak to what was discussed. The critical fact 

however, is that XO Jet is a Part 135 certificate holder with the federally-guaranteed right to selffiiel. 

F After signing its lease, XO Jet issued a Request for Proposal for Aviation Fuel 

("RFP") on January 15, 2008, soliciting the Airport's FBOs, including Aero Ways (DX 38). 

This RFP prompted Aero Ways to ask the DRBA why XO Jet could fuel its aircraft without 

r being an FBO (see, e.g., DX 39, Compl. Ex. F.58). On January 28, Williams correctly informed 

Aero Ways' Beckson that XO Jet was a Part 135 operator with the right to self-handle (zJ.; DX 

35). Beckson then wrote to Williams, stating: "[a]s per our conversation on Monday, January 

\ 28th, you advised Chuck [Belmont] and I that documentation you possessed will show that 135 

operators qualify for self fueling rights" (zcf.). Williams asked to discuss XO Jet with Aero Ways 

on January 31, 2008 (id), but Aero Ways provided no written response until April. At that time. 

Manning wrote to Williams that "[m]y client has been advised that XO Jet is currently fueling or 

planning to fuel aircraft that it manages without having had to qualify its facility as an FBO. [] I 

am writing to ask how it is that XO Jet can comply with applicable Authority rules in providing 

fuel to its aircraft. I concede at the outset that the answer may well be that our facts are incorrect 

or that other facts distinguish the two situations" (DX 40, Compl. Ex. F.64). In response, 

Williams again explained that XO Jet and Aero Ways are "significantly different": 

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More specifically, whereas Aeroways is primarily an aircraft 

management company, XO Jet is certified by the FAA to operate 

as an air carrier under FAR Part 135 rules. Much like owneroperators of aircraft under FAR Part 91, air carriers certified under 

Part 121 or Part 135 are given the option to self-handle or they 

may elect to confract out to third parties for such service(s). 
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(DX 35, Compl. Ex. F.71). WilUams also attached a copy of XO Jet's certificate (see id). 

Twenty days after the DRBA's letter, Joseph Lamonaca wrote to Williams initiating PreComplaint Resolution under 14 C.F.R. § 16.21 (DX 41, Compl. Ex. F.72). 

B. The Authority Has Treated Parties Similarly Situated 

To Aero Ways In The Same Manner 

After the parties' correspondence above. Aero Ways contacted the DRBA about a 

June 2008 email in which Red Eagle Avionics, LLC ("Red Eagle"), another airport tenant - not 

an FBO - purported to offer fuel for sale to third parties (DX 42). The DRBA had not given Red 

Eagle permission to sell fuel to others, and in fact, had made clear to Red Eagle that (once it met 

F die requirements in the Rules and Regulations and the Minimum Standards) it could only selffuel aircraft that it owned or solely leased (DX 2, Williams Decl. If 13). The issue was ultimately 

resolved, with Red Eagle agreeing to abide by the Rules and Regulations and Minimum 

F Standards (id). The DRBA enforced the Airport's fueling rules against Red Eagle - a non-air 

carrier, non-FBO - in the same way as the DRBA enforced the rules against Aero Ways, before 

Aero Ways became an FBO (id). 

F C. The DRBA Did Not Discriminate Against Aero Ways 

When Aero Ways Violated DRBA Rules And Damaged 

The Card Reader At The FAA Gate 

On September 19, 2008, an Aero Ways employee damaged a DRBA card reader 

W by making an improper tiun while attempting to drive a motor-home through one of the Airport's 

gates into the midfield (DX 2, WilUams Decl. IfH; DX 43). According to the DRBA's PoUce 

Report, the Aero Ways employee, Dwayne Lenker, "advised that he was facing north (parallel to 

Rt 13) prior to turning left to access the gate, when he did not properly negotiate his left turn" 

(DX 43 at 3). The officer observed that the motor home's "left side collided with the confrol 

panel and broke it off the mount" (id) and provided a diagram of the accident (id. at 4). Aero 
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Ways also violated two DRBA rules while moving the motor home. The Aero Ways driver was 

moving another tenant's motor home to park it in a hangar for storage, even though parking 

motor vehicles in hangars for storage is prohibited by the DRBA (DX 2, Williams Decl. ^14). In 

addition, the motor home that was being driven was too long for entry through that gate; signage 

was clearly placed on the fence disallowing vehicles of that size (see id.; DX 44, Compl. Ex. 

F.87). 

The DRBA's Benjamin Clendaniel (then the Acting Senior Airport Manager) 

emailed Lenker on September 23, requesting additional information (DX 45). Neither Lenker 

nor anyone else at Aero Ways responded (DX 2, Williams Decl. If 15). Therefore, on September 

26, Clendaniel revoked Aero Ways' access to the gate (DX 45; DX 2, WilUams Decl. If 15).^ 

F Aero Ways' Belmont responded on September 29, telling the DRBA that "balance 

of the damage to the card reader" occurred after the driver was instructed to back out through the 

gate by an Authority employee because the Secret Service was prohibiting entry to the airfield 

F due to the fact that Senator Biden's aircraft was on the ground there (see id.; DX 46, Compl. Ex. 

F.84). 

These additional assertions are simply incorrect (and not what the Aero Ways 

F driver told the DRBA Police at the time of the accident). The card reader could not have been 

damaged when Aero Ways backed through the gate, because the card reader was bent-over 

forward (DX 43 (DRBA Police Report); DX 2, WilUams Decl. If 15). Nor was Biden's aircraft 

I there - it had left the airport hours before the incident occurred (see DX 2, Williams Decl. If 16). 

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of the airfield (WilUams Decl. If 15). 
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attempted to contact Belmont and that he wished to discuss and quickly resolve the card reader 

issue (DX 46, Compl. Ex. F.84). 

Aero Ways' only response to Williams' e-mail was to file a FOIA request about 

the arrival and departure times of Biden's aircraft (DX 47). This is what Aero Ways' overlydramatic allegation in its Complaint - that the card reader incident required "the intervention of 

the United States Government by way of the Freedom of Information Act" (Compl. Tf 32) - really 

means.^ 

F Aero Ways has not provided the response to its FOIA request (see DX 48, Compl. 

Ex. F.85 (Aero Ways' FOL\ request); DX 49, Compl. Ex. F.86 (US DOT acknowledgement of 

receipt of FOIA request)). Instead, Aero Ways included this "claim" in this Part 16 action, 

F alleging - without citation or support - that the DRBA has not revoked access to the gate for 

others who have disobeyed the rules (DX 46, Compl. Ex. F.84). Not only is there no 

discrimination, but Aero Ways misconstrues why the DRBA revoked its access to the gate. No 

W one else has violated Airport rules, while causing damage to DRBA property, and then refused to 

respond to the DRBA's inquiries (DX 2, Williams Decl. ^15). The DRBA appropriately 

exercised its authority to enforce its rules. 

D. Aero Ways' Remaining Allegations Concern Issues On 

Which The Parties Appear To Agree But Which Have 

Not Yet Been Implemented, And Are Thus Not 

Cognizable In A Part 16 Action 

The Complaint also alleges that the DRBA has discriminated against Aero Ways 

on other issues on which the parties have aheady reached agreement, but, for various reasons. 

Even if Aero Ways' version of the facts is correct - which it is not - Aero Ways still 

violated DRBA rules, damaged DRBA property, and failed to answer a DRBA inquiry. 

The DRBA's actions in revoking Aero Ways' gate access were appropriate. 
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have not yet been implemented. As such, they are simply not the proper subject of a Part 16 

Complaint, and there is no basis for finding the Authority in violation. 

Aero Ways asserts that the DRBA agreed to lease Aero Ways land near Taxiway 

A7 in late 2008 and has refused to take Aero Ways' calls regarding entering into a lease (Compl. 

Tf 21), that it is the only FBO not to have a sign on taxiway Alpha, and that the DRBA agreed that 

Aero Ways could have such a sign (Compl. Tf 19). 

Aero Ways has been illegally parking aircraft outside of its leasehold (on DRBA 

property) near Taxiway A7 (e.g., DX 50; DX 2, WilUams Decl. If 17). The DRBA has informed 

Aero Ways of this issue, but Aero Ways has continued its improper conduct (e.g., DX 50; DX 2, 

Williams Decl. Tfl7). The DRBA has attempted to work with Aero Ways to lease the additional 

land near Taxiway A7 - the land that is the subject of one of Aero Ways' allegations - to solve 

this issue (DX 2, WilUams Decl. Tfl7; DX 51). In connection with this negotiation, the DRBA 

has indicated that it will also provide an FBO sign on taxiway Alpha (id). 

There is no dispute here: the DRBA remains wilUng to negotiate with Aero Ways 

about leasing this land. It is disappointing that Aero Ways has chosen to include this issue in a 

Part 16 complaint, rather than working with the DRBA. Aero Ways should not misuse the Part 

16 procedure for issues that are not in dispute. 

IV. AERO WAYS' PART 16 COMPLAINT 

On June 25, 2008, Aero Ways informed the DRBA that it would be initiating the 

Pre-Complaint Resolution procedures under 14 C.F.R. 16.21 (DX 41, Compl. Ex. F.72). The 

DRBA and Aero Ways met in October 2008 with personnel and coimsel for both Aero Ways and 

the DRBA (DX 2, Williams Decl. Tfl8). Aero Ways raised the issue about becoming an FBO to 

fuel its customers while XO Jet did not have to become an FBO to self-fliel, and indicated that 
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Aero Ways was seeking milUons in damages (id). The meeting concluded with Aero Ways 

agreeing to provide supporting documentation about its assertions (id). Instead of providing the 

documentation about its claims, however. Aero Ways instead sent the DRBA a November 4, 

2008 letter that itemized Aero Ways' purported monetary damages related to its Part 16 claim 

(DX 52). The DRBA reiterated its request for a memorandum addressing Aero Ways' claims, 

stating that, in order for the DRBA to "provide a well reasoned response to the list of [alleged] 

damages .. . it will be necessary for the Authority to fully understand the specific nature and 

F scope of the alleged Aero Ways' claims... and how those claims specifically relate to the 

damages outlined in your letter" (DX 53). Almost half a year later, on April 8, 2009, Aero Ways 

supplied a memorandum to the DRBA providing some additional specificity about its allegations 

F and damage claims (DX 54, Compl. Ex. B). The DRBA's response, among other things, again 

* 

explained in detail that XO Jet held a Part 135 certificate and thus was entitled to self-fuel 

aircraft on that certificate (and attached supporting case law, including the AmAv case discussed 

supra at III.A.), and contrasted XO Jet to Aero Ways, which held no air carrier certificates and, 

prior to becoming an FBO, had the right to self-fuel only aircraft it owned or solely leased (DX 

55, Compl. Ex. C). Aero Ways did not respond to that letter, but filed this Part 16 Complaint 

with the FAA on September 29, 2009, alleging that the DRBA has unjustly discriminated against 

Aero Ways since 2002. 

On October 22, 2009, the FAA issued notice that it had docketed the Complaint. 

In the Notice of Docketing, the FAA clarified that "it has no authority to award damages to 

persons subjected to an airport sponsor's non-compliance with its grant assurances," and made 

clear that its "role in this Part 16 proceeding will be to review the airport sponsor's current 

compliance with its Federal obUgations and not adjudicate damages" (DX 1, at p.l n.l). Much 
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of Aero Ways' Complaint is based on past occurrences and alleged violations not actionable 

imder FAR Part 16. Aero Ways sought damages in excess of $10 million, including, among 

other items, the costs of the two hangars Aero Ways purchased from the Authority when it 

became an FBO, its attorneys' fees, and aUeged economic harm from its lost opportunity to fuel 

its customers. These amounts reflect the costs of Aero Ways' business decisions in its pursuit to 

fuel its customers' aircraft, not any damage from actions by the DRBA. With damages being 

unavailable to Aero Ways, it is unclear what relief Aero Ways seeks in this proceeding. 

ARGUMENT 

I. THE FAA IS ONLY CONCERNED WITH AN AIRPORT 

SPONSOR'S CURRENT COMPLIANCE WITH THE GRANT 

ASSURANCES, AND AERO WAYS' COMPLAINT DOES 

NOT RAISE CURRENT COMPLIANCE ISSUES 

The FAA has made clear that its "role in this Part 16 proceeding will be to review 

the airport sponsor's current compliance with its Federal obUgations" (Oct. 22, 2009 Notice of 

Docketing) (emphasis added). This is the FAA's long-standing position of its role in 

adjudicating Part 16 Complaints: 

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[I]n addressing allegations of noncompUance, the FAA will make a 

determination as to whether an airport sponsor is currently in 

compUance with the applicable federal obUgations. Consequently, 

F the FAA will consider as grounds for dismissal of such allegations 

' the successful action by the airport sponsor to cure any alleged or 

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potential past violation of applicable federal obligations, 

subsequent to FAA receipt of the allegations and prior to the 

issuance of a final FAA compUance decision. 

F Richard E. Steere v. County of San Diego, California, ^PJK Docket No. 16-99-15, 2004 WL 

3198209, at *9 (FAA Dec. 7, 2004); see id. at * 16, 21, 22; see also Appalachian Star Ventures, 

Inc. V. Tri-Cities Airport Comm'n, FAA Docket No. 16-96-02, 1997 WL 1120735, at *5 (FAA 

F Oct. 22, 1997) ("As the FAA has previously found the purpose of the FAA compliance program 
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f is to assure that sponsors of obligated airports are currently in compUance with their grant 

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obUgations - not to penalize past occurrences of noncompliance. After the passage of 28 

months, the actions complained of do not appear to qualify as current airport sponsor action."). 

Although Aero Ways has not demonsfrated that the DRBA has, in the past, violated any Grant 

Assurances, even if there were such a violation, there is no current violation as long as the 

violation has been corrected by the time the FAA makes its determination. Id. at *9, *16 (citing 

Wilson Air Center LLC, v. Memphis and Shelby County Airport Auth., FAA Docket No. 16-99-

10, 2001 WL 1085348 at *4 (FAA Aug. 30, 2001) (Final Agency Decision and Order) (action by 

the airport to cure any violation of federal obligations is grounds for dismissal of the case)). The 

purpose of FAA's compliance program, of which the Part 16 process is a part, is to ensure airport 

F sponsor compliance with its federal obligations, not to provide relief to any specific complainant. 

Thermco Aviation, Inc. v. County of Los Angeles, FAA Docket No. 16-06-07 (Dec. 17, 2007) 

(Final Agency Decision and Order at pp. 15,25, 26). 

F The Complaint should be dismissed because the only relevant determination in a 

Part 16 action is current compliance, and Aero Ways' allegations raise issues related to past 

compliance (which, as explained below, did not amount to violations in any event). See Richard 

r E. Steere, FAA Docket No. 16-99-15 (Dec. 7, 2004), 2004 WL 3198209, at *9; see also, Wilson 

Air Center v. Memphis and Shelby County Airport Auth., FAA Docket No. 16-99-10 (August 30, 

2001) (Final Agency Decision) and (August 2, 2000) (Director's Determination). Aero Ways 

F now operates as an FBO. As an FBO, it can fuel any aircraft at the Airport. Accordingly, Aero 

Ways' allegations concerning its ability to fuel its customers' aircraft are moot and current 

compliance is not at issue. The only allegation by Aero Ways that the DRBA is not in current 

compliance is the claim that the DRBA requires Aero Ways to comply with Section 5.16 of the 

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Rules and Regulations, but does not require XO Jet to do so. This allegation is baseless, as 

discussed below in Section D. 

II. AERO WAYS HAS FAILED TO SUBMIT SUFFICIENT 

EVIDENCE TO SUPPORT ITS COMPLAINT 

It is well-established that a Part 16 Complainant has the burden of pleading and 

proving its case. 14 C.F.R. § 16.229(b); Rick Aviation, Inc. v. Peninsula Airport Comm 'n, FAA 

Docket No. 16-05-18, 2007 WL 1450398 at *14 (FAA May 8, 2007) (Director's Determination) 

("The proponent of a motion, request or order has the burden of proof"); Adventure Aviation v. 

City of Las Cruces, FAA Docket No. 16-01-14, 2003 WL 22696923 at *15 (FAA Sept. 9, 2003) 

(Final Decision and Order). In this context, the burden of proof means the burden of persuasion. 

In the Matter of the City of Santa Monica, FAA Docket No. 16-02-08, FAA Order No. 2009-1, 

p.26-27 (FAA July 8, 2009) (Final Agency Decision and Order at p.26-27). Aero Ways has the 

F burden of proving each and every one of its claims that the DRBA violated the Grant 

Assurances, and Aero Ways has failed to do so. 

Further, Part 16 Complainants "shall provide a concise but complete statement of 

F the facts relied upon to substantiate each allegation." 14 C.F.R. § 16.23(b)(3). Complainants 

cannot meet this burden by simply submitting "volumes of pages in exhibits if they have failed to 

explain how the individual exhibits support specific allegations." JetAway Aviation, Inc. v. 

r Montrose County, Colorado & the Montrose County Bldg. Auth., FAA Docket No. 16-08-01, 

2009 WL 2136622 at *46 n.7 (FAA July 2, 2009) (Director's Determination) (citing M. Daniel 

Carey and Cliff Davenport v. Afton-Lincoln County Mun. Airport Joint Powers Bd., FAA Docket 

No. 16-06-06 (FAA Jan. 19, 2007) (Director's Determination at 55)). 

14 C.F.R. § 16.23 requires that the Complainant submit all documents available to 

support its complaint. "Pursuant to 14 C.F.R. § 16.23(b)(2), the Complainant [is] required to 
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submit all of its pleadings and other documentation in support of its case so that in rendering the 

Director's Determination, the FAA would have the entire record before it." Roadhouse Aviation 

V. City of Tulsa, FAA Docket No. 16-05-08, 2007 WL 1966160, at *11 (FAA June 26, 2007) 

(Final Decision and Order); see also Boca Airport, Inc. v. Boca Raton Airport Auth., FAA 

Docket No. 16-04-02, 2004 WL 5284751 at *9 (Nov. 29, 2004) (Final Decision and Order). 

Also, 14 C.F.R. § 16.29(b)(1) requires each party to 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, and specifically provides that in rendering the Director's Determination "the 

FAA may rely entirely on the complaint and responsive pleadings provided under this subpart." 

Id. 

F The Complaint should be dismissed because Aero Ways failed to meet its burden 

of pleading and proving its case. Complainants must put forth the facts to "substantiate each 

aUegation" and cannot do so by submitting "volumes of pages in exhibits if they have failed to 

F explain how the individual exhibits support specific allegations," as Aero Ways has done. See 

JetAway Aviation, Inc., FAA Docket No. 16-08-01 (FAA July 2, 2009) (Director's 

Determination). Aero Ways cites to a lengthy compilation of exhibits, without any attempt to 

describe its contents, put the relevant communications into context, or show how the individual 

exhibits support its allegations. Accordingly, Aero Ways has failed to meet its burden of proof 

III. THE AUTHORITY'S RESPONSE TO THE SPECIFIC 

COUNTS 

Aero Ways alleged various violations of Grant Assiu-ance 22, "Economic 

Nondiscrimination." Generally, that section concerns "the reasonableness of airport access and 

the prohibition of adopting unjustly discriminatory conditions as a potential for limiting access." 

See Asheville Jet, Inc. v. Asheville Reg'l Airport Auth. et al., Docket No. 16-08-02 (FAA Oct. 1, 

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2009) (Director's Determination at pp. 7-8). The FAA recognizes that how the "airport sponsor 

chooses to manage its airport is within its own discretion absent violating federal law or policy," 

and the FAA "does not normaUy intervene in the business decisions of the airport sponsors 

where grant assurance violations are not at issue." See Asheville Jet, Inc., Docket No. 16-08-02, 

at 8 (Director's Determination at p. 18) (citing Jet 1 Center, Inc. v. Naples Airport Auth., FAA 

Docket No. 16-04-03, (FAA Jan. 4, 2005) (Director's Determination); M. Daniel Carey & Cliff 

Davenport v. Afton-Lincoln County Mun. Airport Joint Powers Bd., FAA Docket No. 16-06-06 

F (FAA Jan. 19, 2007) (Director's Determination)). As set forth below. Aero Ways has failed to 

support the claims in its Complaint that the Airport has violated any of the Grant Assurances -

which is not, in any event, the focus of this proceeding. 

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F A. Aero Ways Has Failed To Demonstrate That The 

Authority Has Violated Grant Assurance 22(f), Because 

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The DRBA Allows Aircraft Owners To Fuel Their Own 

Aircraft Using Their Own Employees And Aero Ways 

Never Owned Any Aircraft 

F Aero Ways alleges that the DRBA violated FAA Grant Assurance 22(f) "relating 

to the DRBA's failure to allow Aero Ways, Inc. the right to service itself (Compl. \ 28) on the 

basis that the DRBA prohibited Aero Ways from fueling the aircraft of its customers. Grant 

f^ Assurance 22(f) states: 

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[The airport 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 fiieling) that it may choose 

to perform. 

I Grant Assurance 22(f), however, requires that airports allow a party to selfservice the aircraft that it owns (see Grant Assurance 22(f); see also FAA Order 5190.6B, Sec. 

11-2; FAA Advisory Circular 150/5190-7 (Aug. 28, 2008) ("Self-fiieling means the fiieling or 

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servicing of an aircraft (i.e. changing the oil, washing) by the owner of the aircraft with his or 

her own employees and using his or her own equipment.") (emphasis added); see, e.g., AmAv, 

Inc. V. Maryland Aviation Administration, Docket No. 16-05-12, (FAA March 16, 2006) 

(Director's Determination at p. 3, 10, n.lO) ("AmAv also cites grant assurance 22(f) but AmAv 

presents no evidence or argument that it owns any of the aircraft it operates. Evidence in the 

record establishes that it does not own all of the aircraft it wishes to self-fiiel. Thus, MAA is not 

required by grant assurance 22(f) to allow AmAv to self-fuel these aircraft.")). The Grant 

F Assurances provide no right for aircraft managers to fuel customers' aircraft. 

Aero Ways does not own and has not owned any aircraft; it only manages them. 

The Authority has no obligation to grant aircraft managers the right to fuel their customers' 

F aircraft. Accordingly, Aero Ways has failed to state or prove a claim for a violation under 22(f). 

B. Aero Ways Has Failed To Demonstrate That The 

F DRBA Has Violated Grant Assurance 22(d), Because 

' The DRBA Permits Air Carriers To Self-Serve And 

f

Aero Ways Never Held An Air Carrier Certificate 

Aero Ways alleges that the DRBA violated Grant Assurance 22(d) "relating to the 

F DRBA's failure to allow Aero Ways, Inc. the right to service itself (Compl. If 27). On its face, 

_ Grant Assurance 22(d) appUes only to air carriers (emphasis added): F 

Each air carrier using such airport shall have the right to service 

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itself or to use any fixed-based operator that is authorized or 

permitted by the airport to serve any air carrier at such airport. 

See also Monaco Coach Corporation v. Eugene Airport and the City of Eugene Oregon, Docket 

No. 16-03-17 (FAA July 24, 2004) (Director's Determination at p. 18) ("[T]here can be no 

F violation of [Grant Assurance 22(d)] which applies only to air carriers."). Thus, Grant 

Assurance 22(d) requires that airport sponsors allow Air Carrier Certificate Holders - including 

Part 135 certificate holders like XO Jet - to self-handle. See AmAv, Docket No. 16-05-12, 

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(March 16, 2006) (Director's Determination at p. 16) ("AmAv is correct that MAA is required to 

allow AmAv to service itself as a Part 135 Air Carrier."). 

The Authority clearly has not violated Assurance 22(d). Throughout the relevant 

period. Aero Ways has not held an Air Carrier Certificate. Accordingly, Aero Ways has failed to 

state a claim for a violation of Assurance 22(d). 

Aero Ways, however, asserts an Assurance 22(d) violation by complaining that it 

informed the DRBA that it "was managing a FAA Part 135 certified aircraft," and that the 

DRBA did not consider or discuss this with Aero Ways (see Compl. \ 6). Aero Ways does not 

allege that it held a Part 135 certificate relating to the aircraft - because it did not. Thus, it fails 

to plead facts that could support the claimed violation of Assurance 22(d). 

F Aero Ways appears to be referring to Manning's statement that "[t]he DRBA 

knew that Aero Ways had applied for its own Part 135 certificate and that it had another's 

certificate available for its use" (DX 7, Compl. Ex. D). Aero Ways' suggestion that it could 

F piggyback on the Part 135 certificate of someone else is inappropriate - if carried out, would be a 

sham pimishable by FAA fines, certificate suspensions, or revocations, as 135 Certificate holders 

must maintain operational control (DX 56, FAA Notice N 8900.95, October 19, 2009, available 

f at http://fsims.faa.gov/wdocs/notices/n8900_95.htm); see also FAR Part 135.77, Part 135 

Operating Requirements) ("Each certificate holder is responsible for operational control [].")). 

Moreover, based on XO Jet's Part 135 certificate. Part 135 certificates are not fransferable (DX 

35, Compl. Ex. F.71). Furthermore, Aero Ways' implication that a company that has applied for 

a Part 135 certificate must be freated as it has obtained such a certificate is more than absurd, and 

it intrudes on the FAA's processes for determining if an applicant is qualified to operate as an air 

carrier. 

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C. Aero Ways Has Failed To Demonstrate That The 

DRBA Has Violated Grant Assurance 22(h), Because 

Aero Ways Has Not Shown That The DRBA Imposes 

Unreasonable Or Discriminatory Conditions Or That 

The DRBA Has Not Selectively Applied Its Standards 

Or Regulations 

Aero Ways contends that the DRBA violated Grant Assurance 22(h) "by 

unreasonably, arbifrarily, and capriciously enforcing its rules and Regulations on Aero Ways, 

Inc., but not on other similarly situated entities at [New Castle Airport]" (Compl. Tf 31, If 29). 

Specifically, the Complaint challenges the DRBA's enforcement of Section 5.16 of its Rules and 

Regulations. Section 5.16(d) places a 5000 gallon fuel tank requirement on airport tenants who 

self-fuel using Avgas (DX 57 (Rules and Regulations, § 5.16(d))): "A minimum above ground 

storage tank capacity for self-fueling shall be 12,000 gallons for Jet-A and 5,000 gallons for 

Avgas."). 

F Grant Assurance 22(h) gives the Airport the flexibility to estabUsh conditions that 

are reasonable and not unjustly discriminatory to ensure the safe and efficient operation of the 

Airport: 

F 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. r 

Aero Ways alleges that the DRBA improperly enforces Section 5.16(d) of the 

F Rules and Regulations on Aero Ways, but not on XO Jet (Compl. ^ 16, n.3). Aero Ways is 

incorrect. XO Jet, as a self-fueling Part 135 certificate holder must comply with Section 5.16 -

and it does (DX 2, Williams Decl. tl2). XO Jet does not have an Avgas tank because XO Jet 

f does not use Avgas. Therefore, it does not have to meet the Avgas tank requirement in Section 

5.16(d). In confrast. Aero Ways, as an FBO, must provide Avgas for sale (DX 36 at p. 12, 

Ill.S.a), and also must comply with Section 5.16 of the Rules and Regulations (id. at III.7). 
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Therefore, Aero Ways must have the Avgas tank referenced in Section 5.16(d), but XO Jet need 

not. There would be no purpose to require a self-flieler like XO Jet to have a tank for gas it does 

not use; however, it is entirely reasonable to require an FBO like Aero Ways to have a tank for 

gas that it is required to provide for sale. In fact, requiring a self-flieler to have an Avgas tank 

when the self-fueler does not use one could be viewed as discriminatory against the self-fiieler. 

Finally, Aero Ways makes the general allegation that XO Jet does not comply 

with Section 5.16(b) through (e) (Compl. Tf 16 n.4). This allegation is completely unsupported 

f* elsewhere in the complaint or in Aero Ways' exhibits. XO Jet complies with all applicable 

sections of Rule 5.16 (DX 2, Williams Decl. ^12). Accordingly, Aero Ways has failed to show 

F that the DRBA has selectively or discriminatorily applied any of its rules. 

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D. Aero Ways Has Not Demonstrated That The Authority 

Has Violated Grant Assurance 22(a), Because Aero 

Ways Has Not Alleged or Shown Unjust Discrimination 

F Or That The Airport Is Not Available On Reasonable 

^ Terms 

W Aero Ways alleges that the DRBA violated Grant Assurance 22(a) "relating to the 

DRBA's failure to make [New Castie Airport] available for reasonable terms and without unjust 

discrimination to Aero Ways, Inc .. . " (Compl. If 26). Subsection (a) of Grant Assurance 22 

F that requires that the airport sponsor make the airport available without unjust discrimination: 

[The airport sponsor] will make the airport available as an airport 

F for public use on reasonable terms and without unjust 

discrimination to all types, kinds and classes of aeronautical 

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activities, including commercial aeronautical activities offering 

services to the public at the airport. 

FAA Grant Assurances, 49 U.S.C. § 47107. Grant Assurance 22(a) guarantees that the sponsor 

will make the airport available on reasonable terms without unjust discrimination regarding 

F aeronautical activities. The FAA recognizes that 22(a) is both qualified by subsection (h) 

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permitting Airports to impose reasonable restrictions, and subsection (i) permitting Airports to 

prohibit certain activities for safety and efficiency purposes. Airborne Flying Serv., Inc., v. City 

of Hot Springs, Arkansas, FAA Docket No. 16-07-06 (FAA Dec. 18, 2007) (Director's 

Determination). 

The DRBA did not violate 22(a). As explained above, Aero Ways has not 

sufficiently alleged or established unreasonable terms or unjust discrimination because: (i) the 

DRBA never infringed on Aero Ways self-flieling rights, because Aero Ways was never in a 

position to exercise "self-fueling rights (either as an aircraft owner or Air Carrier); (ii) the 

DRBA never discriminated against Aero Ways by permitting XO Jet to exercise its self-fueling 

rights, nor could it, because XO Jet is an air carrier and Aero Ways is not; (iii) Aero Ways has 

not claimed any of the DRBA's restrictions and conditions placed on fueling are unreasonable or 

discriminatory; (iv) Aero Ways has not demonsfrated that the DRBA has selectively applied any 

of its standards or regulations; and (v) Aero Ways has been accorded full fiieling rights at the 

Airport since it became an FBO, as described above. 

E. Aero Ways Has Not Demonstrated That The Authority 

Has Violated FAA Order 5190.6A, Chapter 7-26(e)(l), 

Because It Does Not Exist And In Any Event, Order 

5190.6A Was Not Regulatory And Did Not Govern 

Airport Sponsor Conduct 

Aero Ways alleges that "the DRBA failed to comply with the FAA Order 

5190.6A, the Airports Compliance Handbook, Chapter 7-26(e)(l) [by denying Aero Ways its 

right to self fuel]." The FAA Airport Compliance Manual, FAA Order 5190.6B (which 

superseded FAA Order 5190.6A), provides the policy and procedures that the FAA follows in 

carrying out its compliance-ensuring function. 

Aero Ways' allegation fails to state a claim. First, FAA 5190.6A is no longer 
33. 

effective and has been superceded by 5190.6B (Order 5190.6B, § 1.4). Second, Chapter 7-

26(e)(1) does not exist in Order 5190.6A, nor in the new Order 5190.6B. Finally, there is no 

cause of action for violation of the Order, which states that it "is not regulatory and is not 

confrolling with regard to airport sponsor conduct; rather, it establishes the policies and 

procedures for FAA personnel to follow in carrying out the FAA's responsibilities for ensuring 

airport compUance" (Order 5190.6B, ^ 1.1; see also Order 5190.6A, Foreword at 1 ("This Order 

provides the policies and procedures to be followed in carrying out the Federal Aviation 

Administration's (FAA) functions related to airport compliance.")). 

IV. AERO WAYS' REMAINING CLAIMS DO NOT STATE 

CAUSES OF ACTION, ARE PURELY SPECULATIVE, OR 

ARE OTHERWISE SIMPLY WRONG 

Throughout its Complaint, Aero Ways makes several claims regarding the 

DRBA's conduct that do not state causes of action but which unnecessarily and falsely malign 

the Authority and its personnel. The Authority therefore responds to each claim individually. 

A. Aero Ways Has Not Supported Its Claim That The 

Authority's Dealings With Aero Ways Regarding XO 

Jet's Rights Were Inappropriate Or Misleading 

Aero Ways makes several allegations concerning XO Jet. First, Aero Ways 

makes much of its alleged discussions with the DRBA personnel regarding XO Jet's fueling 

rights (see Compl. TfTf9-13). Aero Ways claims that the DRBA acted misleadingly in its 

explanations about XO Jet's self-fueling rights out of ill-will towards Aero Ways (see id). That 

is incorrect (DX 2, Williams Decl. Tfl9). Regardless, the FAA recognizes that "motive or ill will 

does not, alone, amount to non-compliance, even if established by the Complainant. Such 

evidence must be accompanied by an actual unreasonable denial of access for an aeronautical 

activity or unjust economic discrimination. Motive alone does not establish non-compUance." 
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34. 

P BMI Salvage Corp. v Miami-Dade County, FAA Docket No. 16-05-16 (FAA July 25, 2006) 

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(Director's Determination). 

The Authority indisputably informed Aero Ways that XO Jet was, at all relevant 

times, a Part 135 operator with the FAA guaranteed right to self-serve (see e.g., DX 35, Compl., 

Ex. F.71 (formally supplying XO Jet's 135 certificate); DX 39, Compl. Ex. F.58 (WilUams told 

Aero Ways that XO Jet was a 135 in January 2008, months before XO Jet began fueling); DX 

58, Compl. Ex. F.66 (XO Jet did not begin fiieling until April 2008)). 

Second, Aero Ways claims that XO Jet was improperly given fueling rights under 

its lease (see Compl. Tf 9). XO Jet, however, was not granted fueling rights under its lease; its 

self-fueling rights are a result of its Part 135 certificate holder status (see supra at III.A). 

Aero Ways' refusal to accept the Authority's legitimate basis for allowing XO Jet 

to self-fliel does not provide any support for finding a Grant Assurance violation. 

B. Aero Ways Has Not Shown That Alleged Instances Of 

Non-communication Are Grant Assurance Violations 

Aero Ways alleges two events that occurred years ago where a DRBA 

commissioner was told to not to talk to Aero Ways and that Rainear did not contact Aero Ways 

as promised (see Compl. 1ft 17, 18). First, Aero Ways alleges that DRBA personnel were told 

not to talk to Aero Ways' attorney (Compl. ^ 17). The legal profession recognizes that clients 

should not speak with the opposing counsel about an ongoing matter without its counsel present. 

Indeed, it is ethically improper for opposing counsel to directly contact a party it knows to be 

represented, without the consent of that party's attorney. See Model Rules of Prof 1 Conduct, 

Rule 4.2; Delaware Rule of Prof 1 Conduct 4.2. The documents that Aero Ways itself attached to 

its Complaint show that DRBA attorneys were in contact with Aero Ways' attorney, and that 

DRBA personnel were in contact with Aero Ways' personnel (e.g., DX 25, Compl. Ex. F.29; DX 
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35. 

31, Compl. Ex. F.37; DX 32, Compl. Ex. F.45; DX 34, Compl. Ex. F.46; DX 59, Compl. Ex. 

F.47). 

Aero Ways also alleges that DRBA Deputy Executive Director Rainear did not 

contact Aero Ways as promised regarding a potential lease (Compl. If 18). Aero Ways does not 

support this claim with any evidence. Regardless, according to Aero Ways, this discussion was 

supposed to occur in 2006 and was related to Aero Ways becoming an FBO. Aero Ways became 

an FBO in 2007, after continuous discussions between the DRBA and Aero Ways. Thus, any 

communication issues that allegedly existed were clearly resolved. 

Next, Aero Ways claims that the DRBA promised to lease certain land at Taxiway 

A7 (Compl. t 21) and that it is the only FBO to not have an FBO sign or fuel sign on taxiway 

Alpha, despite a DRBA representative's promise (Compl. f 19). As discussed supra at III.D., 

the DRBA remains willing to continue its negotiations with Aero Ways about leasing this land 

on fair and reasonable terms and providing this sign. 

C. Aero Ways Has Not Demonstrated That The Authority 

Amended Its Policies In Order To Affect Aero Ways 

Aero Ways claims that the DRBA undertook to amend its Minimum Standards as 

a result of negotiations with Aero Ways, and failed to amend the standards as represented 

(Compl. Tf 22). As explained above, the Authority amended its Minimum Standards and Rules 

and Regulations in December 2005. Aero Ways claims that the amendments occurred because 

of its request to fuel its customers' aircraft. That is simply not true, as Houghton told Manning at 

the time: "[The Minimum Standards and Rules and Regulations] reflect decisions made, after 

lengthy policy and legal review, addressing the manner in which all parties operating at the 

airport will be conducting business in compliance with applicable federal standards" (^ee e.g., 

DX 26, Compl. Ex. F.33). Aero Ways' assertion now that the DRBA amended the Minimum 
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Standards because of Aero Ways is further belied by Aero Ways' counsel's own statements at 

the time: "My comment about the intention behind the Min. Standards [i.e. that "the proposed 

regulations [are] intended to prohibit Aero Ways from fueling the aircraft that it manages on the 

behalf of aircraft owners"] was not intended to be pejorative. Instead, I was merely confirming 

my understanding that Aero Ways would not be permitted to fuel its customers' aircraft, which 

appears to be the case" (id). 

Further, the Authority did not fail to "amend the minimum standards as was 

represented" because the Authority never represented that the standards would definitely be 

amended in any particular way - and nor does Aero Ways point to any such representation. 

Indeed, as a pubUc body, the DRBA must act by a vote of its Commissioners. DRBA personnel 

did not - and could not - represent to Aero Ways that the DRBA would be bound by draft 

standards that had not even been presented to the Commissioners. The DRBA provided Aero 

Ways with a draft for comments (not as an offer or promise), clearly marked as a draft, 

represented to be a draft, and reinforced as unbinding draft (^ee DX 21, Compl. Ex. F.12 

(marked draft); DX 19, Compl. Ex. F.13 (represented as draft); DX 20, Compl. Ex. F.14 (same); 

DX 24, Compl. Ex. F.20 (reiterating draft nattire); DX 25, Compl. Ex. F.29 (same)). 

Aero Ways also claims that the DRBA forced it to become an FBO (Compl. Tf 22). 

This is simply incorrect. Aero Ways, not the DRBA, made the decision that Aero Ways would 

become an FBO. The essential point here is that Aero Ways decided to become an FBO because 

Aero Ways wanted to fuel aircraft that it did not own (DX 31, Compl. Ex. F.37 ("Aeroways' 

plans are the same as they were in December - Aeroways is interested in offering fiiel to all 

managed aircraft customers and is willing to become an FBO in order to do so. Aeroways . . . 

agrees that it shall serve any customer wanting services since this is actually very good for 
37. 

business."); DX 18, Compl. Ex. F.ll ("When we [Aero Ways] suggested that Aero Ways might 

become an FBO . . . .")). Contrary to Aero Ways' assertion in its Complaint, the DRBA did not 

"dictate[]" that Aero Ways become an FBO (Compl. Tf 22). Aero Ways made its own business 

decision to become an FBO (DX 31, Compl. Ex. F.37; DX 18, Compl. Ex. F.l 1). 

D. Aero Ways Has Not Demonstrated That The Authority 

Discriminated Against Aero Ways Regarding the 2008 

Card Reader Incident 

Aero Ways claims that DRBA management has discriminated against Aero Ways 

regarding the card reader incident. As described supra at III.C, an Aero Ways employee 

damaged a DRBA card reader by making an improper tiun while attempting to drive a motor 

home through a gate clearly marked to prohibit entry by a vehicle of such size to take the vehicle 

to store it - against DRBA policy - in a midfield hangar, and then failed to respond to a DRBA 

inquiry about the incident. Consequently, the DRBA revoked Aero Ways' access through that 

gate (but not to the relevant area of the airfield, which Aero Ways may still access via another 

entryway) (supra at III.C). Access through the relevant gate is a privilege and not a right. The 

DRBA appropriately exercised its authority to enforce its rules. 

CONCLUSION 

For the foregoing reasons, the Director should dismiss the Complaint in its 

entirety. 
38. 

MORRIS, NICHOL^-ARSHT & TUNNELL LLP 

R. Judson Scaggs, 

Leslie A. Polizoti 

Pauletta J. Brown 

Albert J. Carroll 

1201 N. Market Sfreet 

P.O. Box 1347 

Wilmington, Delaware 19899-1347 

Telephone: (302) 658-9200 

Attorneys for Respondent Delaware River & Bay 

Authority 

February 3, 2010 
CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on the 3rd day of February, 2010, she 

caused to be served the RESPONDENT DELAWARE RIVER AND BAY AUTHORITY'S 

MEMORANDUM OF POINTS AND A UTHORITIES IN SUPPORT OF ITS ANSWER AND 

MOTION TO DISMISS on the following in the manner indicated: 

BY FEDERAL EXPRESS 

Office of the Chief Counsel 

Attti: FAA Part 16 Airport Proceedings Docket, AGC-610 

Room 925 

Federal Aviation Adminisfration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Original and three copies 

Elizabeth Newman 

Airports Law Branch, AGC-610 

Office of the Chief Counsel 

Federal Aviation Adminisfration 

800 Independence Avenue, S.W., RM 923 

Washington, DC 20591 

One copy 

BY EMAIL AND FEDERAL EXPRESS 

Joseph Michael Lamonaca, Esq. 

Attorney for Aero Ways, Inc. 

New Castle County Airport 

P.O. Box 10583 

Wihnington, DE 19850-0583 

Email: avlaw@prodigy.net 

One copy