BEFORE THE UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

1 6 2009 

DELBERT JOHNSON, 

d/b/a TWO DOGS AVIATION 

Complainant 

V. 

GOLDSBORO-WAYNE AIRPORT 

AUTHORITY 

Respondent 

Docket No. 16-08-11 

: . 

•-i n 

REBUTTAL OF THE GOLDSBORO-WAYNE AIRPORT AUTHORITY 

W. Harrell Everett, Jr. 

Everett, Womble, Lawrence & Brown, LLP 

507 B North Spence Avenue 

Goldsboro,NC 27532 

Pablo O. Niiesch 

Elaine C. Lippmann 

Spiegel & McDiarmid, LLP 

1333 New Hampshire Ave, N.W. 

Washington, DC 20005 

Phone: 

Fax: 

919-778-6707 

919-751-2598 

Phone: 

Fax: 

202-879-4000 

202-393-2866 

Counsel for Goldsboro-Wayne Airport Authority 

March 16, 2009 
BEFORE THE UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

DELBERT JOHNSON, 

d/b/a TWO DOGS AVIATION 

Complainant 

V. 

GOLDSBORO-WAYNE AIRPORT 

AUTHORITY 

Respondent 

Docket No. 16-08-11 

REBUTTAL 

Pursuant to 14 C.F.R. § 16.23(f) Respondent, Goldsboro-Wayne Airport Authority 

("GWAA" or "Authority"), files this short Rebuttal, along with supporting evidence, to correct 

factual errors made by Delbert Johnson d/b/a Two Dogs Aviation ("Complainant") in the Reply 

submitted on March 2, 2009. The GWAA incorporates in this Rebuttal all of the arguments 

made in, and exhibits submitted with, its Answer and Motion to Dismiss submitted on January 

26, 2009 ("Answer"), and reiterates those arguments as if restated herein. 

I. DISCUSSION 

Complainant is entitled to his own opinions, but he is not entitled to his own facts. To 

support his claims against the GWAA, Complainant relies on a number of mischaracterizations 

and misrepresentations of the relevant facts, which the GWAA believes must be corrected for 

purposes of developing an accurate administrative record. This brief Rebuttal attempts to cut 

through the irrelevant arguments and focuses on the determinative facts that, in the GWAA's 
view, should be most relevant to the analysis that FAA must conduct for the resolution of this 

case. 

Complainant mischaracterizes the GWAA Board members' valid concerns about his 

proposed self-service fueling business as a subterfuge to protect the business interest of the 

Airport's incumbent FBO, SIG Aviation LLC ("SIG").' Reply at 3-4. The fact remains that the 

GWAA Board is concerned about creating an environment that would lead to losing FBO 

services at the Airport. As a result of those concerns and cognizant of its obligations, the 

GWAA accepted the Complainant's proposal to sell aviation fuel with three caveats: (1) that he 

meet the minimum standards set forth in Section 8 of the Airport's Rules and Regulations,^ 

(2) that he seek and receive approval of a site at the Airport from which he would conduct his 

business, and (3) that he receive approval from the local Fire Marshal for its proposed activity. 

Answer at 8-9 and 21-22. Complainant continues to reject the GWAA Board's conditional 

approval as a ruse, and, in an attempt to prove his point. Complainant resorts to implying 

unlawful protectionist tactics by imputing bad motives to the GWAA. 

For example, in an effort to show FAA the information that the GWAA Board had at 

before it when it considered Complainant's proposal, the GWAA submitted to the administrative 

record a letter it sought and received from Eastern Aviation Insurance Services' President Terry 

Britt dated May 7, 2007. See Answer Exh. R. As the former Chairman of the Gwinnett County 

(Georgia) Airport Authority, Mr. Britt is known to the GWAA Board Chairman for his 

' Complainant argues that the "GWAA has granted SIG an exclusive fuel sales monopoly . .. ." Reply at 2. Under 

antitrust law, the showing of "monopoly" requires two elements: (1) possession of monopoly power in a relevant 

market (which must be defined) and (2) exercise of that power to extract monopoly profits. United States v. Grinnell 

Co/77., 384 U.S. 563, 570-71 (1966). However, Complainant has produced no evidence showing that SIG either 

possesses monopoly power in any market, or that it has exercised such power. 

^ As already stated on the record in this investigatory proceeding, the G^AA is willing to waive for Complainant 

the same minimum standards it waived for the incumbent FBO. 
experience in airport matters. Mr. Britt's letter clearly states a valid concern: that allowing an 

aeronautical service provider to skim-off "profit from the sale of fuel without having to provide 

the associated services," tilts the playing field against those businesses that are playing by the 

rules, and may ultimately result in the loss of full FBO services at the Airport. Answer Exh. R 

at 1. Rather than addressing the issues raised in Mr. Britt's letter. Complainant instead questions 

the business motives of the author. Reply at 3. However, the concerns raised in Mr. Britt's letter 

are no less valid even if, as Complainant alleges, Mr. Britt's current employer is associated with 

SIG's fuel supplier. Ultimately, it was the GWAA Board's concern for maintaining a level 

playing field that led it to grant Complainant's request to sell fuel at the Airport under the 

conditions outlined above. 

Likewise, despite repeated requests by the GWAA that Complainant seek approval of the 

Airport site from which he would like to operate his proposed aeronautical business {see e.g.. 

Letter from Harrell Everett to Glenn Barfield (Dec. 6, 2007), Complaint, Exh. L; E-mail 

correspondence between Harrell Everett and Del Johnson (Nov. 26, 2007), Reply Exh. G), 

Complainant now alternatively argues that the GWAA Board Chairman is lying (Reply at 5 

and 6), that the GWAA already posses all the information it needs to grant the approval (Reply 

at 5; E-mail correspondence between Del Johnson and David Gurley (May 9-10, 2007), Reply 

Exh. F), and/or that approval has already been granted (Reply Exh.G at 3). However, 

notwithstanding his ad hominem attacks. Complainant introduces no evidence showing that he 

sought approval of a site for the business that was approved by the GWAA, or that the GWAA 

Board granted such approval. Complainant knew early in the process of Otto Keesling's'' 

' Mr. Keesling is the chair of GWAA Board's Building and Grounds Committee. Keesling Aff, ^ 1, Rebuttal 

Exh. A. 
reservations about the proposed location for the fuel tank and pump, which had been made 

known at a public GWAA Board meeting. Keesling Aff., | 3. After the Complainant's initial 

exchange with the GWAA's outside local civil engineer. Trey Gurley, the Complainant did not 

follow-up, as he was asked to do, to ensure that his proposed self-service fuel tanks and pumps 

complied with airport safety rules. Gurley Aff., fi 3-4, Rebuttal Exh. B. Moreover, the 

Complainant's initial exchange with Messrs. Keesling and Gurley predated the GWAA Board's 

acceptance of his request to sell fuel (Keesling Aff., ^"I 4-5; Gurley Aff., 1 6), and, therefore, 

included only the location of his proposed fuel tank and pumps. Finally, the Complainant knew, 

or should have known, that the approval of a site could come only from the GWAA Board itself, 

and not from Mr. Keesling and/or Mr. Gurley. Reply Exh. G; Keesling Aff., % 5. At this point, it 

is unknown where at the Airport the Complainant intends to locate his business so that he can be 

in compliance with Section 8 (even taking into account the waivers that the GWAA is willing to 

grant). For example. Section 8 would require the Complainant to maintain "manned office 

facilities at the Airport during all business hours" (Complaint Exh. M, Section 8.A.), yet 

Complainant has not indicated where he intends to maintain such office. Likewise, Section 8 

would require Complainant to provide "[a]dequate facilities for checking in [charter/air taxi] 

passengers, handling ticketing or fare collections, and handling of luggage" {id. Section 8.L.I.), 

yet Complainant has not indicated where or how he intends to fulfill those obligations. 

Complainant knew about this seemingly simple requirement when the GWAA Board accepted 

his proposal, and was reminded of it again on November 26, 2007 (Reply Exh. G) and December 

6, 2007 (Complaint Exh. L; December 6, 2007 GWAA Board Meeting Minutes, Answer Exh. S). 

The GWAA believes that requiring a new entrant to identify the location at the Airport where he 

intends to conduct his aeronautical business does not violate the GWAA Federal obligations. 
Complainant, on the other hand, views such a requirement not only as an inconvenience, but also 

claims that it amounts to a compliance breach on the part of the Airport sponsor. 

Complainant's refusal to indicate the site at the Airport in which he intends to locate his 

business likely stems from his refusal to accept that he must comply with the minimum standards 

set forth in Section 8 of the Airport Rules and Regulations - at least those requirements that are 

imposed on SIG, the incumbent FBO. To highlight this point. Complainant now argues, for the 

first time in this proceeding, that the GWAA is in violation of Grant Assurance 22 because the 

GWAA is requiring him to bundle other aeronautical services while waiving those requirements 

for SIG."* Reply at 10-11. Complainant is wrong for two reasons. First, as the GWAA has 

clearly stated on the record, it is willing to waive for Complainant the same minimum standards 

that it waived for SIG. Answer at 26-27; Wilkins Aff,Answer Exh. A,f 18. Second, there is no 

credible basis to allege (as Complainant does) that SIG "has ceased providing the fourth required 

service, charter/air taxi."^ Reply at 11; see also Reply at 7; E-mail correspondence between 

Del Johnson and Jim Steele (Feb. 21-22, 2009), Reply Exh. H. SIG has provided and continues 

to provide charter services at the Airport, as it is contractually required to do.^ Complaint Exh. R 

§ 1.6. Had the Complainant bothered to ask instead of engaging in contrived e-mail exchanges 

with SIG's manager {see Reply Exh. H), the Complainant would have learned that SIG's aircraft 

* The claim that the GWAA is in violation of Grant Assurance 22 is raised for the first time in the Reply (Reply at 9-

11) in contravention to the requirement that each allegation be made, and supporting facts be stated, in the original 

Complaint. 14 C.F.R. § 16.23(b). FAA should discourage such ambush tactics. 

' Likewise, there is no support for Complainant's allegation that SIG self-waives "whatever requirements it prefers 

not to meet," or that "[t]here are no formal waivers" for SIG. Reply at 7. The FBO service requirements imposed on 

SIG are clearly spelled out in the 2007 Fixed Base Operation Agreement {see Complaint Exh. R § 1), none of which 

have been waived. 

* Pursuant to the Airport's minimum standards, the Complainant also would be required to have a "properly certified 

suitable aircraft with properly certified and qualified operating crew available for [charter] service" (Complaint 

Exh. M, Section 8.L.2.) if he wants to sell fuel at the Airport. 
continues to be available under a Part 135 certificate,^ and remains available for on-demand 

charter services (Steele Rebuttal Aff, ff 4-5, Rebuttal Exh. C). 

Complainant also renews the unsupported claim that SIG has control of the Airport and 

that, "[w]ith very limited exceptions involving a few privately owned hangars, any other party 

wishing to operate a commercial aeronautical activity on the airport must do so as a subtenant of 

SIG." Reply at 12. The argument flies in the face of the facts. The GWAA has introduced in the 

administrative record copies of the most recent Airport Layout Plan clearly depicting 

comparatively large swaths of Airport land that are designated and reserved for planned and 

future aeronautical development. Answer Exh. P. None of the areas available for future 

Q 

aeronautical use are "controlled," contractually or otherwise, by SIG. Moreover, it stands to 

reason that if (as Complainant alleges) all new aeronautical service providers must be subtenants 

of SIG, there would be some evidence that at some point in the process Complainant had been 

advised to go speak with SIG about subleasing space at the Airport. Complainant has introduced 

no such evidence. Section 8 expressly states that all FBOs must have "a fully executed lease 

agreement with the Owner." Complaint Exh. M, Section 8.A. (emphasis added). The owner of 

the Airport is the GWAA {see id. Section 1), not SIG. Complainant's allegations regarding SIG 

control of the Airport are simply wrong. 

Lastly, Complainant engages in an accounting shell game to argue that, in his opinion, 

the GWAA is paying SIG too much for the services SIG provides as manager of the Airport and 

as the rental agent for the T-hangars. Reply at 13-14. As stated above. Complainant is entitled to 

his own opinions. The GWAA disagrees with Complainant, and believes that the amounts paid 

^ FAA can easily confirm this assertion through the agency's own certification records. 

* The GWAA also notes that the Complainant does not argue that the space and facilities that SIG leases are not 

being fully utilized. 
and/or retained by SIG (Answer at 38-43) are reasonable under the circumstances and in full 

compliance with the GWAA's Federal obligations.^ 

II. CONCLUSION 

Complainant wants to offer self-service fueling at the Airport. He believes that the 

requirements being imposed by the Airport proprietor are a violation of Federal law. The 

GWAA, on the other hand, believes that it is neither unreasonably excluding Complainant from 

conducting his chosen aeronautical activity at the Airport by imposing unreasonable 

requirements, granting an exclusive right to the incumbent FBO, nor failing to operate the 

Airport as financially self-sustaining as possible under the circumstances. In short, the GWAA 

believes that it is not in violation of its Federal obligations as alleged by Complainant. 

Therefore, because the claims raised by Complainant are not supported by facts, law, or agency 

policy, the Complaint should be dismissed with prejudice. 

' As the airport proprietor, the GWAA is best suited to determine whether payments made are commensurate with 

services received. However, the GWAA welcomes a more in-depth review by FAA if the agency believes that such 

a review would aid in the resolution of this case. 
Respectfully submitted. 

CJ^.I^MJI CM^SC . 

W. Harrell Everett, Jr. @ 

Everett, Womble, Lawrence & Brown, LLP 

507 B North Spence Avenue 

Goldsboro,NC 27532 

Phone: 919-778-6707 

Fax: 919-751-2598 

Pablo O. Niiesch 

Elaine C. Lippmann 

Spiegel & McDiarmid LLP 

1333 New Hampshire Ave., N.W. 

Washington, DC 20036 

Phone: 202-879-4000 

Fax: 202-393-2866 

Attorneys for the Goldsboro-Wayne Airport Authority 

March 16, 2009 
EXHIBIT A 
Affidavit of Otto H. Keesling 

I, Otto H. Keesling, do hereby state upon my oath that the following statements are true and 

correct according to the best of my knowledge, information, and belief 

1. I have been a member of the Goldsboro-Wayne Airport Authority ("GWAA") 

Board since 1995. I am also the current chair of the GWAA Board's Building and Grounds 

Committee. In that capacity, I am familiar with the events leading up to the complaint that was 

filed with FAA against the GWAA by Mr. Delbert Johnson, which is captioned Delbert Johnson 

V. Goldsboro-Wayne Airport Authority, FAA Docket No. 19-08-11. 

2. I have read the Reply filed in this case, and submit this rebuttal affidavit to clarify 

an issue raised in that filing. 

3. Soon after we received Mr. Johnson's original proposal for a self-service ftieling 

business, I openly and publicly (at a GWAA Board meeting) stated my concern that the proposed 

location for fuel tanks and pumps was too close to the aircraft movement areas. I felt that the 

proposed location would create a safety hazard. 

4. 1 never heard back fi-om Mr. Johnson about a location for his business after his 

proposal was approved by the GWAA Board in October 2007. 

5. I could not have "approved" a site for Mr. Johnson's business because he never 

presented a site to approve after the GWAA Board made it clear that, if he was going to sell 

aviation ftiel at the Airport, he would be expected to also offer all of the other services required 

by Section 8 of the Airport's Rules and Regulations. Even if I wanted to, I could not have 

approved a site because I do not have the authority to do so; only the full GWAA Board can 

approve the location of new business at the Airport. 

Further, affiant sayeth naught. 

Dated: March t-^ , 2009 

' /J /• ' 

m A /- < c</' 

Otto H.,Keesling / 7 ^ 

Subscribed and sworn to before me this i>! day of March, 2009. 

fP^"'^. 

Name: d I. u-icv B. • 'Ofc^'inc v £ ^^''HA L ^"^ 

Notary Public i $ iO ^ ^ ^ 5 

My commission expires: 'D^n't^Cl l \T^ ^Ll C ^ 
ExHiBrr B 
Affidavit of David E. Gurley, III 

I, David \i. Gurley. HI, do hereby state upon my oath that the following statements are 

true and correct according to the best of my knowledge, information, and belief 

1. I am a civil engineer and principal of Gurley Engineering Inc., which is located in 

Goldsboro, North Carolina. I have been retained to provide civil engineering services to the 

Goldsboro Wayne Airport Authority ("GWAA") since June. 2006. 

2. I was asked by the GWAA Board to submit this affidavit to clarify an issue 

which, I understand, has been raised in an ongoing FAA investigation. 

3. In May of 2007 I reviewed a drawing that was presented by Mr. Johnson 

depicting a proposed location for an aviation-fuel tank and pump. The location was in the 

middle of the existing aircraft parking apron, generally in front of the buildings that are known 

as Hangar #1 and Hangar #2. 

4. Given the nature of the proposed structures, I told Mr. Johnson that he should 

contact the GWAA's airport consultants. The LPA Group of North Carolina, p.a., to clarify the 

airport safety rules regarding self-service fuel tanks. Thereafter, Mr. Johnson contacted me 

again asking whether I could provide him with a copy of the airport layout plan, because (he 

stated) obtaining a copy through The LPA Group would cost $150. I told him I did not have a 

copy of those drawings to give away. 

5. I never met with Mr. Johnson and/or Otto Keesling on site to discuss a possible 

location for Mr. Johnson's proposed facility. In fact, I have never met in person with Mr. 

Johnson, although I have seen him at GWAA Board meetings. 

6. I had no more contacts with Mr. Johnson after the Spring of 2007 regarding the 

seif-sers'ice fuel tank and pump. 

Further, affiant sayeth naught. 

Dated: March |A ,2009 

Subscribe^ and sworn to before me 

[ ^ day of March, 2009. 

'aE^.C^^T^b^Oy<^(nr^j I 

Name: C^I,'oi<3u3-S^ZJC-at^©^ 

Notary Public 

My commission expires: Qjz}x—^D If \ 
EXHIBIT C 
Affidavit of James A. Steele 

I, James A. Steele, do hereby state upon my oath that the following statements are true and 

correct according to the best of my knowledge, information, and belief 

1. I previously submitted an affidavit in this case that was appended as Exhibit S_ to 

the Goldsboro Wayne Airport Authority's ("GWAA") Answer and Motion to Dismiss. 

2. I am submitting this affidavit to clarify an e-mail exchange that I recently had 

with Del Johnson, which I understand has been submitted into the administrative record in this 

proceeding. 

3. In the morning of Saturday, February 21,1 received an e-mail inquiry from Mr. 

Johnson regarding a possible charter trip. Believing that his inquiry was an actual request for air 

transportation, I responded shortly thereafter and explained that, while SIG pilots could not fly 

him, we could make a charter aircraft available to him. I also offered to explain our pricing 

structure. Mr. Johnson never responded to my questions regarding where he wanted to fly or 

when he would need the service. 

4. Although SIG pilots are currently not flying charter services, our aircraft is on the 

Part 135 (on-demand airplane pax/cargo) charter certificate for Jet Direct Aviation. When we 

receive a charter request. Jet Direct assigns the pilots to fly the aircraft. Although SIG pilots 

normally fly the aircraft, that is not an absolute requirement and Jet Direct has the authority to 

assign other pilots for charter flights. I believe that such an arrangement fulfills SIG's 

contractual obligations with the GWAA. 

5. As a result of the recent sale of Jet Direct Aviation, SIG has been considering 

moving its aircraft to the certificate of another charter provider. SIG is currently evaluating its 

options and expects to complete the move within the next 45-60 days. 

Further, affiant sayeth naught. 

Dated: March O-, 2009 

A "^L^ 

Subscribed and sworn to before me this Q aay of March, 2009. 

Notar Notaryy Publi Pubhcc . ^ , ^ • ^ §^— J^^'^ ^AA. O\ 

My commission expires: c>< " ' 'o^/ / | > ^j . ^ ^ ^ i 
CERTIFICATE OF SERVICE 
Certificate of Service 

I hereby certify that I have today, the 16"^ day of March, 2009, served the foregoing 

Rebuttal by U.S. mail delivery, on the following: 

Glenn A. Barfield, Esq. 

Haithcock, Barfield, Hulse & Kinsey, PLLC 

231 East Walnut Street 

Post Office Drawer 7 

Goldsboro, North Carolina 27533-0007 

Attorney for Complainant 

O 

Pablo O. Niiesch