FEDERAL AVIATION ADMINISTRATION OFFICE OF THE CHIEF COUNSEL

SKYDIVE MYRTLE BEACH, INC., Complainant,
v. HORRY COUNTY DEPARTMENT OF AIRPORTS, Respondent. ) ) ) ) ) ) ) ) ) ) ) FAADocketNo.16-14-05

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4850-4484-3807.4 RESPONDENT HORRY COUNTYDEPARTMENT OF AIRPORTS' ANSWERAND AFFIRMATIVE DEFENSES TO COMPLAINANT SKYDIVE MYRTLE BEACH, INC.'S PART 16 FORMAL COMPLAINT AND STATEMENT OF MATERIAL FACTS

Respectfully submitted, HORRY COUNTY DEPARTMENT OF AIRPORTS,

David
.Ba ard, Jeffrey R. Blease, E q. Jaclyn V. Piltch, Esq. FOLEY & LARDNER LLP 111 Huntington Avenue Boston, MA 02199 Tel: (617) 342-4000 Fax: (617) 342-4001 dbannard@foley.com jblease@foley.com jpiltch@foley.comTABLE OF CONTENTS INTRODUCTION ...........................................................................................................................! SUMMARY OF SDMB'S ALLEGATIONS ..................................................................................2 ANSWER.........................................................................................................................................5 I. SDMB HAS FAILED TO MEETITS BURDEN OF PROOF ...........................................5 II. HCDA'S FEDERAL OBLIGATIONS................................................................................6 III. SDMB'S STATE LAW CLAIMS SHOULD BE DISMISSED..........................................8 A. Factual Background .................................................................................................9 B. The State LawClaims Are Outside The FAA's Jurisdiction.................................IO C. The State LawAllegations In the Complaint Do Not Make Out A Claim For Violation OfHCDA'sFederal Obligations..........................................11 1. All Other Commercial AviationTenants at CRE Were Offered a Claim ForViolation ofHCDA's Federal Obligations.................................................................................... !! 2. HCDA's "Refusal" to Relocate SDMB from Hangar 7 to Hangar 1 DoesNotViolate Any OfThe Federal Grant Assurances ..........................................................................13 3. HCDAIs NotRequired To Perform Maintenance ofHangar 7 ................15 D. SDMB's Harassment Claim Is A State Law Claim That Must Be Dismissed ................................................................................................16 IV. SDMB'S ALLEGATIONS REGARDING VEHICLE AND PEDESTRIAN DEVIATIONS DO NOT STATE A CLAIM UNDERPART 16 ..................................... !? A. SBMB's Proposed Interpretation of 14 CFRPart 105 and 14 CPR§ 139.329 Is Both Incorrect and Dangerous............................................. !? B. Neither The DocumentationProtocol Nor the Purported Landing Zone Restrictions Violate HCDA's Federal Grant Obligations ............................20 AFFIRMATIVE DEFENSES........................................................................................................23 CONCLUSION..............................................................................................................................24
4850-4484-3807.4TABLE OF AUTHORITIES
Aerodynamics of Reading, Inc. v. ReadingReg. AirportAuth., FAA DocketNo. 16-00-03 (July 23, 2011 (Final Decision and Order)
........................5, 12 Ashcroftv. Iqbal, 556 U.S. 662 (2009)
.......................................................................................... !! Ashton v. City of Concord, NC, FAA Docket No. 16-00-01, 24 (Apr. 17, 2001) (Final Decision and Order)
...................................................................... !! Citizens to Save Spencer County v. UnitedStates EPA, 600 F.2d 844 (D.C. Cir. 1979)
...........................................................................................19 Desert Wings Jet Center, LLCv. City of Redmond, Oregon, FAA DocketNo. 16-09-07,21 (Nov. 10, 2010) (Director's Determination)
....................l5 DrakeAerialEnters., LLCv. City of Cleveland, FAA DocketNo. 16-09-02, II (Feb. 22, 2010) (Director's Determination)
.................................................20 Gate 9 v. Dekalb Cty., FAA Docket No. 16-05-13 (Feb. I, 2006) (Director's Determination)
......................................................................... 12 HillAir Co. v. Broward County Comm 'rs, FAA DocketNo. 13-93-07, 21 (Jan. 31, 2006) (Record ofDecision)
.................................................................................l6 .letAwayAviation, Inc. v. Montrose Cty. Bldg. Auth., FAA DocketNo. 16-08-0I, 2009 FAA LEXIS 251 (July 2, 2009) (Director's Determination)
....................................l2 LongIslandJet Center East, Inc. v. County of Suffolk, New York, FAA DocketNo. 16-04-05,2005 FAA LEXIS 66 (Jan. 21, 2005) (Director's Determination)
........................................................................ !! LosAngeles Int 

### 'lAirportRates Proceeding ("First LAX Case"), Order 95-6-36 (June 30, 1995)
.....................................................................................................................5 Nat 

### 'lAirliftSupport Corp. v. Fremont Cty. Bd. of Comm 'rs, FAA DocketNo. 16-98-18, 15 (May 3, 1999) (Director's Determination)
...................... 13 Pacific CoastFlyers, Inc. v. Cty. of San Diego, California, FAA DocketNo. 16-04-08,2005 FAA LEXIS 514 (July 25, 2005) (Director's Determination")
............................................................................................... 12 PenobscotAirServ. v. Knox Cty., FAA Docket No. 16-97-04,24 (Sept. 25, 1997) (Director's Determination)
......................................................................

### IO
11 4850-4484-3807.4PenobscotAirServ. v. FAA, 164 F.3d 713 (1st Cir. 1999)............................................................10 Ricks v. Greenwood-LefloreAirport/AirportBoard, FAA DocketNo. 16-09-04, 2011 FAA LEXIS 37(Jan. 24, 2011) (Director's Determination) .......................................5 RoadhouseAviation, LLCv. City of Tulsa & the TulsaAirports Improvement Trust, FAA DocketNo. 16-05-08, 20 (June 26, 2007) ...................11, 16, 20 Skydive Monroe, Inc. v. City of Monroe, Georgia, FAA DocketNo. 16-06-02, 2007 FAALEXIS 117 (Mar. 30, 2007) (Director's Determination)........................... 13, 14 SpringfieldFlightAcad. v. City of Springfield, FAA DocketNo. 16-10-03, 29 (Aug. 25, 2011) (Director's Determination) ............................................................................11, 12 Statutes, Rules and Regulations 49 U.S.C. 

### §47107(a) (2012)............................................................................................................6 14 CFRPart 16...............................................................................................................................11 14 CFR Part 105.............................................................................................................4, 17, 19, 20 14 CFR § 105.5 ..............................................................................................................................19 14 CFR Part 139.......................................................................................................4, 17, 18, 19,20 14 CFR 

### § 139.329................................................................................................................3, 18, 19 14 CFR 

### § 16.23 ............................................................................................................................ 1, 2 Other Authorities Airport Cooperative Research Program, GeneralAviation Safety andSecurity Practices: A Synthesis of AirportPractice (2007)........................................ 17 FAAAdvisory Circular (AC) No. 150/5200-37,Introduction to Safety ManagementSystems (SMS)forAirport Operators (Feb. 28, 2007) ................................23 FAA Advisory Circular (AC) No. 105-2E, SportParachuting (Dec. 4, 2013).............................. 19 FAA Airport Compliance Manual ...................................................................................................7 FAAAirport Sponsor Assurances (Mar. 2014) .......................................................................6, 7, 8 FAAFact Sheet- Runway Safety (July 19, 2013) ..........................................................................7
111 4850-4484-3807.4FAA Final Report DOT IFAAI AR-11/30, Development of Criteriafor Parachute LandingAreas onAirports, at 26, 

### § 8.2.2 (May 2012) ("Final Report") ..........................21 FAA Form 5010 "Airport Master Record" for Grand Strand Airport at North Myrtle Beach (July 24, 2014) ....................................................................................6 FAA Grant Assurance 19...............................................................................................7, 15, 17, 20 FAA Grant Assurance 22.......................................................................................................passim FAA Guide to Ground Vehicle Operations: A Comprehensive Guide to Safe Driving onthe Airport Surface .............................................................................18 FAA National Plan ofintegrated Airport Systems (NPIAS), 2013-2017 .......................................6 FAA Order 5190.6B (Sept. 30, 2009)..............................................................................7, 8, 22,23 GeneralAviation Safety andSecurity Practices: A Synthesis of AirportPractice (2007) .................................................................................................18

lV 4850·4484·3807.4Pursuant to 14 CFR § 16.23(d), Respondent Harry County Department ofAirports ("HCDA") hereby answers Complainant Skydive Myrtle Beach, Inc.'s ("SDMB") Part 16 Formal Complaint and its supplemental Statement ofMaterial Facts (together, the "Complaint"). SDMB has not met its burden ofproof, norhas it stated a claimthat HCDA has violated its federal Grant Assurances. Forthese reasons, and as described more fully herein, SDMB's Complaint should be dismissed. INTRODUCTION HCDA is obligated to operate a safe and efficient airport system consistent with Federal Aviation Administration ("FAA") regulations and guidance, and has at all times complied with these FAArequirements, including those embodied inthe federal grant assurances. Many ofthe acts ofwhich SDMB complains are part and parcel ofHCDA's efforts to operate Grand Strand Airport in North Myrtle Beach, South Carolina ("CRE") 1 in compliance withthese federal obligations, including but not limitedto its rehabilitation ofthe ramp and implementation ofa reporting system intendedto identify safety hazards and mitigate risks. SDMB's other complaints are related to standardpolicies that apply to all tenants and operators at CRE; specifically, each tenant's obligation to enterinto an agreement withHCDA for the occupancy of premises on airport property, and each operator's obligation to seekthe CRE Tower's permission before crossing active runways or taxiways. SDMB currently uses CRE as abase ofoperations for its skydiving business, and also
uses a designated landing zone located on airport property. After SDMB's initial Space Use Permit for use ofHangar 7 at CRE expired on January 31,2014, SDMB has repeatedly refused to enter into a valid Space Use Permit for the use ofthe hangar. Over the course ofthe last year,

1CRE is the three-letter abbreviation code for Grand Strand Airport, though SDMB refers to the airport in its Complaint predominantly (and incorrectly) as GSA. 1 4850-4484-3807.4SDMB has also refused to comply with standard requests from HCDA to conductits operations at CRE in a safe and commerciallyreasonable manner. For instance, SDMB has been unable to
ensure that its skydivers consistently land within the designated landing zone at the airport, or contact the CRE Tower before crossing active runways or taxiways when they fail to do so. SDMB instead claims that these requests constitute "harassment" or "discrimination." Rather than comply with its obligations, SDMB has launched a full legal assault on HCDA inboth state court and inthis proceeding. It is HCDA's beliefthat SDMB has manufactured boththe state action and this Complaint simply to gain advantage in negotiations ofthe Space Use Permit. Certainly the alleged motivationbehindHCDA's "discrimination"- that "HCDA's intent was to remove SDMB from Hangar 7 in orderto rehabilitate the [CRE] ramp"- is notplausible. HCDA has applied for and received federal AlP grant funding to rehabilitate the ramp at CRE. Many tenants and airport operations must be temporarilyrelocated
overthe course ofthese ramp repairs. During Phase I ofthe project, which occurred inthe
summer and fall of2013, these temporary relocations occurred without incident. There is no
reason why suchrelocations now constitute "discrimination" or "harassment" simply because HCDA is advancing into Phase 2 ofthe project. Simplyput, SDMB's claims are exaggerated and, in some instances, concocted, to draw attention away from SDMB's refusal to abide by a few simple rules grounded in safety, efficiency, and common sense, and which are applicable to all aeronautical users at the airport. SUMMARY OF SDMB'S ALLEGATIONS Pursuantto 14 CFR 

### § 16.23(h), HCDAhas denied or admitted each ofthe allegations made in the Complaint, or stated that it is without sufficientknowledge or informationto admit
or deny an allegation. These responses are attached hereto as Schedule A, which is incorporated
2 4850-4484-3807.4herein by reference. What follows is a summary ofthe allegations set forth in the Part 16 Formal Complaint and Statement ofMaterial Facts. As a threshold matter, SDMB has an appropriate and adequate venue for the claims in this action that assert violations ofSouth Carolina law and, in fact, SDMB has multiple pending actions in South Carolina state courts. 2 Aside from state law claims, SDMB's overall theory appears to be that HCDA is in violation ofGrant Assurance No. 22, with a dizzying array of disjointed allegations being set forth as some form ofoverall "unjust discrimination" against SDMB, or perhaps that CRE was not made available to SDMB "onreasonable terms." This theory includes allegations that are properly litigated only in state court: the propriety and lawful grounds for the ejectment action HCDAresorted to only after SDMB refused to enter into a Space Use Permit, and whether various actions (including the location ofapile ofmulch) constitute "harassment" by HCDA. SDMB's remaining allegations simply do not evidence any violation offederal law. These allegations center on SDMB's objectionto its obligation, as one ofmany aeronautical users at CRE, to contact the air traffic control tower before crossing active runways or taxiways, and its objectionto the standard writtenrecords HCDA uses to document safety hazards. In February 2014, when SDMB allegedly first learned ofthe Letter ofAgreement ("LOA") between HCDA and the Grand Strand Air Traffic Control Tower (the "CRE Tower," operated at all relevant times by Robinson Aviation, Inc.) that contains the obligation to contact the CRE Towerbefore crossing active runways or taxiways, SDMB inquired as to the basis for the obligation. The CRE Towerpromptly sent SDMB a copy of 14 CFR 

### § 139.329, which the

2 Skydive Myrtle Beach, Inc. v. Horry Cty. Dep'tof Airports, eta/., C.A. No. 2014-CP-26-1193 (S.C. Ct. Com. Pl.) (filed Feb. 14, 2014); Harry Cty. v. Skydive Myrtle Beach, Inc., C.A. No. 2014CV-26-109244 (Myrtle BeachMagis. Ct.) (filed June 5, 2014). The South Carolina Court ofCommon Pleas recently dismissed the HCDA employees, whom SDMB had sued on an individual basis, from SDMB's suit. 

### 3 4850-4484-3807.4FAAhad provided. Uponreview ofthe LOA and this regulation, SDMB stated that itthought this provision was reasonable and agreed to abide by it. SDMB even inserted a similarprovision into a proposed LOA for which it sought FAA approval. Despite its agreement that a requirement to contactthe CRE Tower before any ofits skydivers crossed active runways or taxiways was reasonable, in the following months SDMB's skydivers and personnel continuedto
cross active runways and taxiways, either onfoot or in golfcarts, without first receiving the CRE Tower's permission. Uncontrolled movement ofthis sort creates a significant safetyrisk to aeronautical users at CRE, as well as to SDMB's skydivers and personnel themselves. HCDA developed a reporting systemto track all safety hazards at CRE, including such vehicle and pedestrian deviations, in an attempt to then mitigatethose hazards. The CRE Tower and HCDA employees report safety incidents involving any aeronautical user to HCDA, which then fills out a written report for its records. SDMB apparently objects to this documentation protocol, and also now claims that the universal obligationto seekpermission from the CRE Towerbefore crossing an active runway ortaxiway does not apply to SDMB. SDMB's specific argument appears to be thatits skydivers should not be considered "pedestrians" under 14 CFR Part 139, and should not therefore be subjectto the requirement to contactthe CRE Tower before crossing an active runway or taxiway? According to SDMB, skydivers do not become pedestrians whenthey land, and insteadremain "parachutists" under 14 CFRPart 105. SDMB also objects to the ground communications and documentation protocols
as unwarrantedrestrictions onits designated landing zone at CRE. SDMB's argument here appears to be that, because Part 105 states that in an emergency parachutists may land anywhere at the airport, its landing zone in all instances comprises the entire airport. Such is not the case,

3 CRE is not a Part 139 certificated airport, however, like many general aviation airports, it looks to Part 139 for guidance in complying with its federal grant obligations. See irrfra at 17. 4 4850-4484-3807.4and is beliedby the documents that SDMB attaches to its Complaint, which clearly state the exact location ofSDMB'sproper landing zone. Moreover, the high number of"inadvertent" landings outside the landing zone by SDMB skydivers have created an additional safety concern that HCDA, following approved FAA protocols for safety risk management, is properlytracking in orderto develop means to mitigate the hazard theypresent. 

### ANSWER I. SDMB HAS FAILED TO MEETITS BURDEN OF PROOF. "Abasic requirement ofPart 16 is that a complainant showwith evidence thatthe sponsor is violating its commitments to the Federal governmentto servethe interests ofthe public by failing to adhere to its grant assurances." Aerodynamics of Reading, Inc. v. Reading Reg. AirportAuth., FAA DocketNo. 16-00-03, at 15 (July 23, 2001) (Final Decision and Order). The complainant has the burden ofproof. See id. at 16; LosAngeles Int'/AirportRates Proceeding ("First LAX Case"), Order 95-6-36, at 17-18 (June 30, 1995) (Final Decision) (citing Administrative Procedure Act, 5 U.S.C. § 556(d)). To meet its burden ofproof, a complainant "cannot simply allege that an airport sponsor is in violation ofits grant assurance without fulfilling its burden ofproof." Ricks v. Greenwood-LefloreAirport/AirportBoard, FAA Docket No. 16-09-04,2011 FAALEXIS 37, at *61 (Jan. 24, 2011) (Director's Determination). Rather, the complaint "mustpresent complete allegations andsubstantialandprobative evidenceto sustain an allegation ofa grant assurance violation." Id. (emphasis added); see id., at *66 (requiring reliable, probative and substantial evidence). Notably, the case law reflects an assumptionthat a complainanthas at leastmade a conclusory allegation that a sponsorhas violated a particular grant assurance; here, SDMB has not even done that. HCDA should not be required to divine from SDMB'srambling,
5 4850-4484-3807.4disorganized allegations what exactly it is being accused of. Nonetheless, HCDA has attempted to discern some colorable claim. As far as HCDA can determine, SDMB has accused it of violating Grant Assurance 22 for failing to make the airport accessible to SDMB on "reasonable terms" and for "unjust discrimination." As discussed more fully below, there is no merit to either ofthese accusations and SDMB has not providedthe "reliable, probative, and substantial evidence" necessary to meet its burden ofproof. For these reasons, SDMB's Complaint should be dismissed.

II. HCDA'S FEDERAL OBLIGATIONS. CRE is apublic-use airport owned and operated by the County ofHarry, South Carolina, whichis classified as a "Regional" general aviation airport with 32 based aircraft and 46,670 annual operations.4 See FAA Form 5010 "Airport Master Record" for Grand Strand Airport at North Myrtle Beach (July 24, 2014); FAANational Plan oflntegrated Airport Systems (NPIAS), 2013-2017, Appendix A at A-92. As the owner and operator ofCRE, which has been financed, inpart, with funds provided by the FAA under the Airport Improvement Program, Harry County is contractually obligatedto comply with certain Grant Assurances promulgatedby the FAA. See 49 U.S.C. § 47107(a) (2012); FAA Airport SponsorAssurances (Mar. 2014).5 "Itis the policy ofthe United States
...that the safe operation ofthe airport and airway system is the highest aviation priority." 49 U.S.C. 

### §47101(a) (2012). Accordingly, and "consistentwiththe FAA mission, the most important objective in FAA's oversight of[its] compliance program is to ensure and preserve safety at all federally obligated airports." FAA

4 Annual operations were calculated for the 12-monthperiod ending September 17, 2013. See FAA Form 5010 "AirportMaster Record" for Grand Strand Airport atNorth Myrtle Beach (July 24, 20 14). 5Available atwww.faa.gov/airports/aip/grant_ assurances/media/airport-sponsor-assurances-aip.pdf. 

### 6 4850-4484-3807.4Airport Compliance Manual, FAA Order 5190.6B, 

### §2.6 at 2-5 (Sept. 30, 2009). 6 "Ensuring safe airport operations includes maintaining runways, taxiways, and other operational areas in a safe and usable condition." 

### !d. "Arunway incursion is any unauthorized presence on a runway, regardless ofwhether or not an aircraft, vehicle or pedestrianpresents a potential conflictto an aircraft authorized to land, take off, or taxi on a runway." FAA Fact Sheet- Runway Safety, at 2 (July 19,2013/ (citing International Civil Aviation Organization). "Thereduction inthe number and severity ofrunway incursions is one ofthe FAA'stop priorities." 

### Id., at 

### I. Certain ofthe grant assurances with which Horry County must comply specifically address safety. For example, Grant Assurance 19 ("Operation and Maintenance") provides:
a. The airport and all facilities which are necessary to serve the aeronautical users ofthe airport
... shall be operated at all times in a safe and serviceable condition and in accordance with the minimum standards as may be required or prescribed by applicable Federal, state and local agencies for maintenance and operation. FAA Airport Sponsor Assurances, at 9-10. To comply with Grant Assurance 19, an airport sponsor "should adopt and enforce adequate rules, regulations, or ordinances as necessary to
ensure safety and efficiency ofaircraft operations and to protect the public using the airport." FAA Order 5190.6B, 

### §7.8(c) at 7-7. Infact, "[o]ne ofthe most important functions oflocal regulations is to control the use ofthe airport in a manner that will eliminate hazards to aircraft and people and structures onthe ground." 

### !d., § 7.9 at 7-7. These regulations are sometimes needed "to reduce the likelihood ofa runway incursion." 

### !d.

6 The Order "establishes the policies and procedures for FAA personnel to follow in carrying outthe FAA's responsibilities for ensuring airport compliance" with federal obligations. !d. § 1.1 at 1-1, available at www.faa.gov/documentlibrary/media!Order/5190
_6b.pdf. 7Available atwww.faa.gov/news/fact_sheets/news**_story.cfm?news!d~l4895.** 7 4850-4484-3807.4Grant Assurance 22 ("Economic Nondiscrimination") sets forth the following obligation for an airport sponsor:
a. Itwill make the airport available as an airport for public use onreasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport. FAAAirport SponsorAssurances, at 10. This obligation is then elaborated upon by two safetyspecific provisions: h. The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to be metby all users ofthe airport as may be necessary for the safe and efficient operation ofthe airport.
1. The sponsor mayprohibit or limit any given type, kind or class ofaeronautical use ofthe airport ifsuch action is necessary for the safe operation ofthe airport or necessary to serve the civil aviation needs ofthe public. 

### Id., at 11. "An airport proprietor may adopt reasonable minimum standards for aeronautical businesses and adopt routine regulations for use and maintenance ofairport property by aeronautical users and the public,'' because this falls within the provenance ofGrant Assurance 22(h). 

### See FAA Order 5190.6B, § 14.4 at 14-2. "These kinds ofrules typically do notrestrict aeronautical operations." 

### Id. Additionally, "[a] prohibition or limit [pursuant to Grant Assurance 22(i)] may be based on safety or on a conflictbetween classes or types ofoperations." 

### Id., § 14.3 at 14-2. "Aprohibition or limit on aeronautical operationsjustifiedby the sponsor on the basis ofsafety
... will be evaluated based onthe stated purpose,justification, and support offered bythe sponsor." Jd., § 14.4(d) at 14-3. 

### III. SDMB'S STATE LAW CLAIMS SHOULD BE DISMISSED. SDMB's Complaintpresents a mixture offederal and state lawissues. As noted above, the federal cla\ms stem from SDMB's apparent assertion that HCDA has failed to make CRE available onreasonable terms and conditions, andhas unjustly discriminated against SDMB. As 8 4850-4484-3807.4a threshold matter, all ofSDMB's state law claims are standard landlord-tenant issues that are properly addressed in state court, and for this reason, should be dismissed. To the extent any of these claims extend into federaljurisdiction- for instance, those relating to the reasonableness of the terms within the Space Use Permitproffered by HCDA- they should also be dismissed, as they do not make out a claim that HCDA has violated its federal obligations. A. Factual Background. HCDA requires that all tenants occupyingpremises at CRE execute a form ofagreement setting forth the terms and conditions for the use ofthat premises. Among other things, these agreements help HCDA ensure that its tenants have met the necessary insurance requirements and agreed to indemnity provisions. When HCDAtook over CRE operations from the previous operator, Grand Strand Aviation Inc. d/b/a Ramp66 ("Ramp66"), on August I, 2013, all tenants
were asked to sign a temporary Space Use Permit with a six-monthterm, with the intent that long-term leases would thereafter be negotiated. These Space Use Permits were offered on temporary bases because South Carolina law requires counties to utilize a formal "three-reading" process priorto conveying property rights through lease agreements. SDMB was among several commercial aviation tenants who executedthese temporary Space Use Permits. The others were Executive Helicopters, Inc. and Barnstormers Aerial Advertising, LLC (abanner tow operator). See HCDA-000018-HCDA-000033 and HCDA-000045-HCDA-000076. At the time each Space Use Permit was about to expire, HCDA had not yet completed the formal three-reading process required by South Carolina law, so it contacted eachtenant and asked them to enter into new Space Use Permits. SDMB was the only tenant who refused to enter into a new Space Use Permit.

9 4850-4484-3807.4SDMB has objected to only one ofthe newterms inthe new Space Use Permitthat HCDA offered- a 24% gross sales percentage fee. HCDA reviewed the proffered Space Use Permit andrealized that this term
- whichhad been includedinthepermits offeredto all the tenants- had been included in error. When HCDA realized its error, it offered SDMB a revised Space Use Permit levying a standard 10% gross sales percentage fee. SDMB still refused to sign the Space Use Permit. This 10% gross sales percentage fee is neither unreasonable, nor a penalty. The same term was included in the Executive Helicopters Space Use Permit. 8 As noted above, HCDA did not intend for its tenants to continue entering into Space Use Permits in a serial fashion. Rather, HCDA intended to negotiate long-term leases withthese tenants as soon as it could. BothBarnstormers and Executive Helicopters have now entered into such leases (contraryto the allegations inthe SMF). Because SDMB refused to sign a Space Use Permit, and refused to vacate Hangar 7, HCDA instituted an ejectment action in state court. The court orderedthat SDMB be ejected from Hangar 7. SDMB appealed that order and continues to occupy Hangar 7 during the appeal process, for which it has posted bond. B. The State Law Claims Are Outside The FAA's Jurisdiction. "The purpose ofthe grant assurances is to protectthe public interest in the operation of Federally obligated airports. The purpose is not to provide alternative or supplemental rights to those normally available to commercial tenants in disputes with their landlords, i.e. negotiation
or commercial litigation under applicable state and local laws." PenobscotAir Serv. v. Knox Cty., FAA DocketNo. 16-97-04, 24 (Sept. 25, 1997) (Director's Determination), aff'd, PenobscotAirServ. v. FAA, 164 F.3d 713 (1st Cir. 1999). Accordingly, the grant assurances "do

8 The banner tow operator referenced inthe SMF, Barnstormers, does notpaythis fee because it pays a per trip fee, which is standard practice for banner tow operators. 10 4850-4484-3807.4not ...preventthe airport from exercising proprietary powers, such as determining howto structure the leasing ofproperty onthe airport." Ashton v. City of Concord, NC, FAA Docket No. 16-00-01,24 (Apr. 17, 2001) (Final Decision and Order). Following these principles, the FAA typically does not consider interpretation ofleaseterms to be within its Part 16jurisdiction. See, e.g., RoadhouseAviation, LLCv. City of Tulsa & the TulsaAirports Improvement Trust, FAA DocketNo. 16-05-08, 20 (June 26, 2007) (Final Decision and Order); LongIslandJet Center East, Inc. v. County of Suffolk, New York, FAA DocketNo. 16-04-05,2005 FAALEXIS 66, *60 (Jan. 21, 2005) (Director's Determination). Similarly, "the issue ofwhether an eviction action is wrongful, is a matterto be resolved under State Law." LongIslandJet Center East, Inc., 2005 FAA LEXIS 66, at *60. See also SpringfieldFlightAcad. v. City of Springfield, FAA DocketNo. 16-10-03,29 (Aug. 25, 2011) (Director's Determination) ("the Director does not feel it appropriate to opine on matters related to an evictionproceeding as such action is outside the scope of 14 CFRPart 16"). C. The State Law Allegations In The Complaint Do Not Make OutA Claim For Violation OfHCDA's Federal Obligations. 1. All Other Commercial Aviation Tenants at CREWere Offered the Same or Similar Space Use Terms. SDMB's conclusory allegation that ithas "otherwise [been] treated differently from other commercial tenants" is insufficientto state a claim ofunjust discriminationunder Grant Assurance 22. See Compl. at 1; see also Iqbal, 556 U.S. at 678 ("Threadbare recitals ofthe elements ofa cause ofaction, supportedby mere conclusory statements, do not suffice" to state a claim). The flexibility to negotiate different terms with airport tenants has long been recognized
as allowable under GrantAssurance 22. Indeed, it is a key element ofthe law in aviation: "the FAAhas acknowledgedthat several factors can distinguish parties that a sponsor canjustlytreat differently, without violating its Federal obligations. Such factors may be: period oflease, 11 4850-4484-3807.4business plan, proposed location offacilities, level ofservice and amenities, scope ofservices, investment, market conditions, and reasonable actions by the sponsor to promote and protect its ability to continue to serve the interests ofthe public in civil aviation, including the enlistment of prudent business practices that may change overtime." JetAwayAviation, Inc. v. Montrose Cty. Bldg. Auth., FAA Docket No. 16-08-01,2009 FAA LEXIS 251, at *118-19 (July 2, 2009) (Director's Determination) (quoting Gate 9 v. Dekalb Cty., FAA DocketNo. 16-05-13 (Feb. 1, 2006) (Director's Determination)). Consequently, where there are material differences among tenants, including the type of aeronautical service provided or the date a lease was negotiated, itis absolutely permissible for
an airport to enter into different agreements, orrequire agreements, with differing terms. See, e.g., Pacific Coast Flyers, Inc. v. Cty. of San Diego, California, FAA DocketNo. 16-04-08, 2005 FAA LEXIS 514, at *54 (July 25, 2005) (Director's Determination") ("The prohibition on unjust discrimination does not prevent a sponsor from making reasonable distinctions among aeronautical users and assessing higher fees on certain categories ofaeronautical users based on those distinctions.");Aerodynamics of Reading, Inc., FAA DocketNo. 16-00-03, at 17 (holding that airports are "not required to offer lease rates and terms that are identical to other leases negotiated at different points intime"). SDMB's claimthat it was "discriminated" against because it was not offered the exact same terms as some ofthe other commercial aviation tenants is misplaced and certainly not legally actionable. To make such claims actionable would vitiate
an airport's ability to operate in a commercially reasonable manner. Norhas SDMB met its burden ofshowing that "it requested similar terms and conditions
as other similarly situated airport users and was denied for unjust reasons." SpringfieldFlight Acad., FAA DocketNo. 16-10-03, at 18. There are no other similarly situated tenants atthe
12 4850·4484·3807.4airport, i.e., tenants who "are making the same or similar uses ofthe airport facilities." Skydive Monroe, Inc. v. City of Monroe, Georgia, FAA DocketNo. 16-06-02,2007 FAA LEXIS 117, *35 (Mar. 30, 2007) (Director's Determination). The only other commercial aeronautical service providers at CRE are a bannertow operator, and a company offering helicopterrides. Even setting aside the fact that there are no similarly-situated tenants to SDMB, SDMB still has not beentreated any differently than the other commercial tenants at CRE. HCDA offered SDMB essentially the same terms that were offered to these other tenants, and SDMB chose to reject this offer, making it the only tenant at CRE operating without either a space use permit or lease. An airport's "refusal to execute a lease
... onmore favorable terms than those employed by comparable tenants does notqualify as a denial ofaccess on reasonable terms withoutunjust discrimination." Nat'!AirliftSupport Corp. v. Fremont Cty. Bd. ofComm 'rs, FAA DocketNo. 16-98-18, 15 (May 3, 1999) (Director's Determination), aff'd, (Sept. 20, 1999) (Final Decision and Order). SDMB argues, seemingly inthe alternative, that it has beentreated the same as other CRE tenants, butthat those tenants have all been treated differently than tenants at HCDA's other airports. SMF at 13-14. This argument does not make sense, nor does itmake out a claim ofunjust discrimination. As noted above, Grant Assurance 22 requires thattenants be similarly situated for there to be discrimination betweenthem. By definition, tenants at different airports
are inherently not similarly situated. Moreover, SDMB does not have standing to complain of unjust discrimination withregard to other CRE tenants. 2. HCDA's "Refusal" to Relocate SDMB from Hangar 7 to Hangar I Does NotViolate Any ofthe Federal Grant Assurances. "Reasonable access" under Grant Assurance 22 "means for the use ofaeronautical facilities on the airport, not necessarily the ability to lease particular space onthe airport." 13 4850-4484-3807.4Skydive Monroe, Inc., 2007 FAA LEXIS 117, at *20. Where an airport "continues to permit
access by [the skydiving operator] to its aeronautical facilities, including the runway, taxiways, and drop zone, [it] has not created an effective prohibition ofskydiving operations" that would constitute a violation ofthis Grant Assurance. Id., at *25. SDMB refused to enter into the proffered Space Use Permit for Hangar 7, which caused SDMB to violate its Operating Permit. Compl. Ex. 3 at 19. Therefore, on April28, 2014, HCDA sent SDMB a notice oftermination ofSDMB's Operating Permit. Id. Inthe notice, HCDA clearly stated that "SDMB may continue to use the aeronautical facilities at CRE, including the landing zone as a transient operator." Compl. FP 37; Ex. 3 at 19. HCDA's termination ofthe Operating Permit, served 30 days later, repeats this statement. Compl. Ex. 3 at 15. Because HCDA has continued to permit SDMB to access the aeronautical facilities at CRE, including the runways, taxiways, and landing zone, ithas complied with Grant Assurance 22. SDMB argues for the first time in its Statement ofMaterial Facts that it requested to be relocated to Hangar 1, and HCDA's denial ofthis request is a violation offederallaw. See SMF at 2. To the contrary, HCDAhas neverreceived a formal request to sublease Hangar 

### I. Declaration ofHughJason Terreri, HCDA-000130**at~** 8. HCDA also states that Hangar 1is not
an available alternative to Hangar 7, for the following reasons. First, due to the manufacturer's specification for SDMB's aircraft and the configuration ofthe airport inthe vicinity ofHangar 1, SDMB's current aircraft could not maneuver into Hangar 1 from the apron.**!d.~** 5. Even if SDMB's aircraft was able to enter into Hangar 1, HCDA would lose at least 10 revenueproducingparking spaces onthe CRE ramp in orderto ensure that SDMB's aircraft could safely turn around and access the hangar. Id.**~** 

### 6. This is due to the turning radius required for SDMB's aircraft to access Hangar 1, and the required 15-foottaxilane wingtip clearance from
14 4850-4484-3807.4fixed or moveable objects. 

### !d. There is also no direct access from the landside to Hangar I. All ofSDMB's customers would therefore be requiredto traverse the active apron to access Hangar I, adding a significant amount ofvehicular andpedestriantraffic to the ramp.**!d.~** 7. 3. HCDA Is Not Required to Perform Maintenance ofHangar 7. HCDA is obligatedunder Grant Assurance 19 to maintain "[t]he airport and all facilities which are necessaryto serve the aeronautical users ofthe airport
... in a safe and serviceable condition." FAA Airport Sponsor Assurances, at 9-10. While this assurance requires an airport sponsorto maintain the airfield, including all movement areas, in a safe and serviceable condition, it does not require a sponsorto maintain leasehold areas, such as hangars and other similar facilities. See Desert Wings Jet Center, LLC v. City of Redmond, Oregon, FAA Docket No. 16-09-07,21 (Nov. 10, 2010) (Director's Determination) ("The obligation under Grant Assurance 19 applies to aircraft movement areas. Generally, it does not extend to leasehold areas.") HCDAhas and will continue to take all commercially reasonable maintenance measures in compliance with Grant Assurance 19, but it has no obligation under federal lawto maintain buildings occupied by third parties. The allocation ofrepair and maintenance responsibilities between an airport operator and its tenants isproperly addressed in an agreementbetweenthe two parties, which is yet another reason why HCDA requires that all occupants ofpremises at CRE enter into an agreement with HCDA. In addition, a South Carolina state court has already determinedthat SDMB is unlawfully occupying Hangar 7, and has ordered SDMB's ejectment. SMF Ex. A at 75. (SDMB has appealed that ruling and remains on airport propertypending the disposition ofits appeal). SMF Ex. A at 1-4. For these reasons, SDMB's claims thatHCDA did not address maintenance issues at Hangar 7- the Statement ofMaterial Facts specifically refers to a brokenhangar door- do not state a claim thatHCDAhas violated federal law.
15 4850-4484-3807.4D. SDMB's Harassment Claim Is A State Law Claim That Must Be Dismissed. SDMB alleges that it has "been continuallyharassed in its FAA-recognized aeronautical activity ofnon-emergency parachuting or skydiving." Compl. at 

### I. SDMB also alleges that it has "been subjectedto other intimidation attempts," which have "materially interfered with its business." Id. at 3 and n.3. Claims of"harassment" are state law claims that fall outside the FAA'sjurisdictionand should be dismissed. See HillAir Co. v. Broward County Comm 'rs, FAA DocketNo. 13-93-07, 21 n.23 (Jan. 31, 2006) (Record ofDecision). InHillAir Co., the complainant alleged harassment ofits business by, inter alia, the airport's notice to vacate its leasehold, its engagement ofa photographer to take pictures ofthe leasehold, and failure to control a severe dust problem caused by a contractor. Jd. The FAA declined to investigate these claims because they were "not related to the Airport Sponsor's contractual obligations to the Federal Government," and noted that the complainant had "local avenues ofseeking redress of these issues." 

### !d. SDMB does not identify specific facts that constitutethe alleged "harassment," but the facts alleged in its Complaint are similarto those in HillAir, and include notice to terminate its occupancy ofa hangar (FP 37), photos and other observationbeing undertakenby an HCDA airport employee (FP 51, 56), and apile ofpeatmoss being left onthree common-use parking spaces used by SDMB (FP 33). These allegations are not related to HCDA's contractual obligations to the FAA under the Grant Assurances, and shouldbe dismissed. Even ifSDMB's state law "harassment" claims are considered along with its federal claims under Grant Assurance 22, those claims are subjectto dismissal, for the reasons stated above in Section III.C, and below, in Section IV. See, e.g., RoadhouseAviation v. City of Tulsa & the TulsaAirportsImprovements Trust, FAA DocketNo. 16-05-08, 32-33 (Dec. 14, 2006)
16 4850·4484·3807.4(Director's Determination) (considering claims that audit by airport operator constituted "harassment" and "discrimination" together under the rubric ofGrant Assurance 22, and finding
no violation ofthe Grant Assurance). 

### IV. SDMB'S ALLEGATIONS REGARDING VEHICLE AND PEDESTRIAN DEVIATIONS DO NOT STATE A CLAIM UNDERPART 16. SDMB's only formally stated "issue" inthe Complaint is whether the provisions ofPart 139 with regard to "pedestrians" apply to Part 105 "parachutists" after they land. SDMB links this "issue" to the overarching themes ofits Complaint, namely, its objectionto the reporting protocol HCDA and the CRE Towerhave implementedto document safety hazards, including vehicle and pedestrian incursions on active runways and taxiways, and its further objectionto purported restrictions on its landing zone. Given these themes, it appears that SDMB's stated "issue" also falls within the penumbra ofSDMB's allegations that HCDAhas violated Grant Assurance 22 by unjustly discriminating against SDMB. Because HCDA's conduct falls well within the bounds ofpermissible regulation under Grant Assurance 22, and also shows HCDA's efforts to comply with Grant Assurance 19, SDMB's claims shouldbe dismissed. 9 

### A. SDMB's Proposed Interpretation Of14 CFRPart 105 And 14 CFR § 

### 139.329 Is Both Incorrect And Dangerous. As a general aviation airport, CRE is not subject to the requirements of 14 CFRPart 139; however, "many general aviation airports voluntarily incorporate appropriate elements ofPart 139 and their supporting Advisory Circulars to enhance the safety oftheir facilities." Airport Cooperative Research Program, GeneralAviation Safety andSecurity Practices: A Synthesis of AirportPractice, at 6 (2007). Pursuant to Part 139, an airport operator must:

9 The Statement ofMaterial Facts also refers to increasing holds ofskydiving aircraft as part ofthe alleged campaign against it. HCDA is not responsible for any such holds, which would have been imposedbythe private operator of the CRE Tower, Robinson Aviation, Inc. HCDA has not and will not instruct the CRE Tower onhowto manage its air traffic control responsibilities. Moreover, the FAA does not havejurisdiction over the private tower operator, Robinson Aviation, who was dismissed from this action before it was docketed for that veryreason. 17 4850-4484-3807.4Establish and implementprocedures for the safe and orderly access to, and operation in, movement areas and safety areas by pedestrians and ground vehicles, including provisions identifying the consequences ofnoncompliance with the procedures by an employee tenant, or contractor[.] 14 CFR § 139.329(b). Where, as at CRE, "an air traffic control tower is in operation," the airport operator must 

### also "ensure that each pedestrian and ground vehicle in movement areas or safety areas is controlled by
... (I) Two-way radio communications between eachpedestrian or vehicle and the tower." 14 CFR § 139.329(c). In addition, the airport operator must maintain a "description and date ofany accidents or incidents inthe movement areas and safety areas involving air carrier aircraft, a ground vehicle, or apedestrian." 14 CFR § 139.329(£)(2). SDMB admits that 14 CFR § 139.329 "requires towered operators to implementpolicies for vehicles and pedestrians from entering into designated areas by suchmeasures as two-way radio communication withthe Air Traffic Control Tower," and that HCDA and the CRE Tower "have a Letter ofAgreement (LOA) that requires all pedestrians and vehicles to have two-way radios and receive [CRE Tower] authorization prior to entering active areas defmed as taxiways and runways at [CRE]." 1

# °Compl. at 2; see also Ex. 2 at 1-3 (the LOA). SDMB further acknowledges that it "agreed to comply withthese provisions
... and implemented internal procedures to meetthe terms ofthe
... LOA." FP 16. OnFebruary 14,2014, in response to the CRE Tower's provision ofa copy of 14 CFR 

### § 139.329, SDMB stated: "Appreciate the heads up and in conjunction with the LOA this makes complete sense. Nowthat we have a copy, we have implemented SOPs here where this should no longer present itselfas an issue henceforth." Ex. 1
10 These provisions accord with FAA guidance with respect to ground vehicles: "As an operator ofa vehicle you musthave authorization from [air traffic control] before you enter any part ofthe airport movement area. When the tower is in operation, you must utilize atwo-way radio for communicating with and receiving instructions from air traffic control." FAA Guide to Ground Vehicle Operations:A Comprehensive Guide to Safe Driving on theAirport Surface, at 19, available at http://www.faa.gov/airports/runway _safety/media/ground_ vehicle_guide _proof_final.pdf. Indeed, even emergency vehicles mustabide by theseprovisions: "All vehicles operating at a towered airport, including ARFF and police, are required to receive explicit runway crossing instructions from ATC. This applies to all runways encountered: active, inactive and closed, regardless ofthe type ofemergency!" !d., at 29. 18 4850-4484-3807.4at 194. Then, together with the CRE Tower, SDMB "included the ground conununications" in a draftofSDMB'snewLOA. FP 17. SDMB now argues, in a complete turnabout, that the safetyprovisions of 14 CFR § 139.329 do not apply to it because sport parachuting safety is governed by 14 CFRPart 105. More specifically, SDMB appears to argue that when a skydiver inadvertently lands on an area outside the designated landing zone, the parachuting safetyprotocol to "vacate" the area "as soon
as practicable" allows it to ignore its obligation to contact the CRE Tower for permissionbefore SDMB or its skydivers cross active taxiways and runways. 11 See Compl. at 2 (quoting FAA Advisory Circular (AC) No. 105-2E, SportParachuting (Dec. 4, 2013)). As a matter ofstatutory interpretation, the safety provisions ofPart I05 and Part 139 mustbe read together to give both meaning. "[T]he maximum possible effect shouldbe afforded to all statutoryprovisions, and, whenever possible, none ofthose provisions rendered null or void." Citizens to Save Spencer County v. United States EPA, 600 F.2d 844, 870 (D.C. Cir. 1979). Iftwo provisions "point generally in a conunon direction
... it is the task ofan agency with the requisite authority to pursue a middle course that vitiates neither provision but implements to the fullest extentpossible the directives ofeach." 

### !d. at 871. Part 105 provides, "No person may conduct aparachute operation
... ifthat operation creates a hazard to air traffic or to persons or property onthe surface." 14 CFR § 105.5. However, Part 105 does not include specific provisions addressing what happens to a parachutist after landing. Italso does not contradict Part !39'sprovisions to prevent runway incursions. Because both Part 105 and Part 139 "point generally in [the] common direction" ofensuring the safety ofall persons, vehicles, and aircraft at airports which host skydiving operations, the FAA

11 To clarify, HCDA agrees that, ifa skydiver inadvertently lands on an active runway or taxiway and is physically capable ofvacating the movement area on her own, then she should do so. Once out ofthe movement area, the skydiver should await assistance and/or contact the CRE Tower before crossing any other runways ortaxiways. 19 4850-4484-3807.4can "pursue a middle course" that allows Part 105 to address safety inthe air and Part 139 to address safety on the ground. Part 105 should notbe read to supersede Part 139, as SDMB suggests, because it would have the unacceptable effect ofrendering Part 139 null and void as it applies to one particulartype ofpedestrian. 12 This result is nonsensical and dangerous, and should be rejected. 

### B. Neither The Documentation Protocol Nor The Purported Landing Zone Restrictions Violate HCDA's Federal Grant Obligations. SDMB's allegations regarding ground communications and documentationprotocols for vehicle and pedestrianincursions on active taxiways and runways do not support a claim that HCDA has violated its federal grant obligations. To the contrary, Grant Assurance 22 "does not guarantee any particular individual aeronautical user access to the airport on whatever terms that
user may desire." DrakeAerialEnters., LLCv. City of Cleveland, FAA Docket No. 16-09-02, 11 (Feb. 22, 2010) (Director's Determination). HCDA's obligation under Grant Assurance 19 to maintain "[t]he airport and all facilities which are necessary to serve the aeronautical users ofthe airport
... in a safe and serviceable condition" extends to active runways and taxiways. See, e.g., RoadhouseAviation, LLC, FAA DocketNo. 16-05-08, at 15 (finding sponsor ofgeneral aviation airport that accepted AlP grant funds is obligated "to ensure that aircraft movements onpublic taxiways and taxilanes are conducted in a safe manner"). HCDA is also expressly authorized under Grant Assurance 22(h) to establish "reasonable
... conditions to be met by all users ofthe airport as may be necessary for the safe and efficient operation ofthe airport." This is exactly the type of"condition" that is contained within the HCDA-CRE Tower LOA, which requires pedestrians and vehicles to contactthe CRE Tower before crossing an active runway ortaxiway and potentially causing an

12 Notto mention that Part 105 cannot be read to supersede the federal regulations governing vehicle runway incursions; one would be hard pressed to think ofa situation where a golfcart could qualify as a "parachutist." 20 4850-4484-3807.4accident with aircraft using that runway or taxiway. See Ex. 2 at 1-4. The terms inthe proposed LOA to which SDMB objects also accord withthe FAA's recommendation that airports "develop an LOA with the skydiving operator that describes specific operating requirements and boundaries of [parachute landing areas]." FAA Final Report DOT IF

### AAJ AR-11/30, Development of Criteria for Parachute LandingAreas onAirports, at 26, 

### § 8.2.2 (May 2012) ("Final Report"). An LOA ofthis type can "include movements required bythe skydiver operator onthe airfield as well as instructions and/or restrictions for crossing runways, operating vehicles on the airfield, radio communications, and emergencyprocedures." 

### I d. "The LOA should also address the procedures ifa parachutist lands outside the designated PLA or in aprotected area ofthe runway." 

### Id. The ground communications and documentation protocols are applicable to all aeronautical operators at CRE. IfSDMB feels singled out for HCDA's attention in this area, it is onlybecause SDMB is the only operator at CRE who has been consistently unable to follow the simple safetyrules inplace at the airport, despite HCDA's and the CRE Tower's repeated presentation oftheir safety concerns to SDMB. See, e.g., Compl. FP 11; Ex. 1 at 111, 114, 117, 251; Ex. 2 at 10. SDMB has also failed to consistently land its skydivers withinthe designated landing zone at CRE. For instance, on one occasion an SDMB skydiver landed on an aviation fuel tank at CRE. HCDA-000164. On another occasion, a private pilot reported that an SDMB skydiver almost crashed into his aircraft while he was taxiing. HCDA-000176. On a third occasion, SDMB skydivers made an unscheduled landing on a local beach, which resulted in a police report being filed due to public safety concerns. HCDA-000175. These repeated failures
cause safety concerns that warrant incident reporting. 13 Even ifthe ground communications and

13 Skydiving is an inherently risky endeavor. As recently as last month, in Barnstable, Massachusetts, an experienced tandem instructor and first-time skydiver died when they missed their designated landing zone and 21 4850-4484-3807.4documentation protocols were specific to SDMB- whichthey are not- they should be evaluated in light ofHCDA's statedpurpose to maintain the safety ofoperations at CRE. See FAA Order 5190.6B 

### § 14.4(d) at 14-3 ("A prohibition or limit on aeronautical operationsjustifiedby the sponsor onthe basis ofsafety
... will be evaluated based onthe stated purpose,justification, and support offered bythe sponsor."). HCDA has not imposed auy prohibitions or limitations on SDMB'sbusiness, aud the ground communications aud documentationprotocols described inthe Complaint are well within the bounds ofau airport's permissible regulation ofskydivers. 14 For instance, at Sebastian Municipal Airport in Florida, which hosts 20,000 to 40,000jumpsperyear, the airport "does not allowparachutists to walk on areas ofthe airport outside the established PLA." Final Report at 14-15, § 7.1.2. Meanwhile, at Herlong Municipal Airport inFlorida, which hosts approximately 2,000 to 3,000jumpsperyear ofmostlytandemparachutists, the airport and the skydiving operator "have an agreement stating that ifa parachutistneeds to cross a runway, the parachutist

. is to remain at his or her location aud wait for au airport escort." 

### !d. at 18, § 7.1.5. Similarly,

whenthe CRE Tower stated inApril 2014 that it would begin reporting safety complaints to the Flight Standards District Office aud HCDA, it was following recommended FAA procedure. See Ex. 1 at 242; FAA Order 5190.6B, § 14.4(a) at 14-2 ("Ifa sponsorbelieves that there is a safety issue with the flight operations ofan individual aeronautical operator ...the sponsor should crashed into the side ofa garage. See htto://www.necn.com/news/new-england/Police-Respond-to-SkydivingAccident-2773803 81.htm1. 14 Examples ofFAA-approved airportrules that prohibit, limit, or regulate aeronautical operations by whole classes or types ofoperation pursuant to Grant Assurance 22(i) include: (a) Limiting skydiving, soaring, and banner towing operations to certain times ofthe day and week to avoid tbe times ofhighest operation by fixed-wing aircraft, (b) Banning skydiving, soaring, ultralights, or banner towing when the volume offixed-wing traffic at the airport would not allow !bose activities without significant delays in fixed-wing operations, and (c) Limiting skydiving, soaring, and ultralight operations to certain areas ofthe airfield and certain traffic patterns to avoid conflict witb fixed-wing patterns. FAA Order 5190.6B, § 14.4(d)(l) at 14-3. 22 4850-4484-3807.4report the issue to the Flights Standards Service as well as bringing it to the attention ofthe operator's management."). The "partnership" betweenHCDA and the CRE Towerdescribed inthe Complaint is exactly the type ofcollaborative approach to safety that helps an airport sponsor achieve the FAA's goal ofsafe operations. HCDA seeks to gather dataregarding incidents and accidents consistent with the guidance in FAAAdvisory Circular (AC) No. 150/5200-37,Introduction to SafetyManagementSystems (SMS)forAirport Operators (Feb. 28, 2007). The essence ofthis work is to identifyhazards, rankrisks ofhazards by severity and likelihood, mitigate unacceptable risks, and review the mitigated hazards to determine whether the risk has been reducedto an acceptable level. The frequent runway and taxiway incursions by SDMB's skydivers are clearly hazards to other aeronautical operations at CRE, as well as to SDMB's skydivers and personnel themselves. The same is true ofSDMB's refusal to contactthe CRE Tower before moving across active runways andtaxiways. By gathering dataregarding the types ofmissed landings, along with related data such as wind and weather, HCDA may be able to determine whether the hazards ofthese errant landings may be mitigated. AFFIRMATIVE DEFENSES

First Affirmative Defense SDMB fails to state a claim because its allegations fall outside the FAA'sjurisdiction. Second Affirmative Defense SDMB fails to state a claim that warrants an investigation or further action by the FAA. Third Affirmative Defense SDMB fails to state a claim because HCDA has, at all times, acted in compliance with its federal Grant Assurances.
23 4850-4484-3807.4Fourth Affirmative Defense SDMB does not have standing to bring a challenge under Part 16 onbehalfofother tenants or businesses at CRE. Fifth Affirmative Defense The Complaint does not contain sufficient evidence to meet SDMB'sburden ofproofto establishthat HCDA has violated any ofits federal grant assurances, including without limitation GrantAssurance 22. Sixth Affirmative Defense HCDA's repaving ofthe CRE ramp is reasonable and not unjustly discriminatory. Seventh Affirmative Defense HCDA has ensured that all tenants relocated as result ofthe ramp repaving project are able to continue their aeronautical operations. CONCLUSION Based onthe foregoing, SDMB'sPart 16 Formal Complaint, including its supplemental Statement ofMaterial Facts, should be dismissed.

24 4850-4484-3807.4CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Respondent Horry County Department ofAirports' Answer and Affirmative Defenses to Complainant Skydive Myrtle Beach, Inc.'s Part 16 Formal Complaint and Statement ofMaterial Facts, including Schedule A and supporting documents, onthe following persons at the following addresses, by electronic mail in accordance with 14 CPRPart 16 § 16.13(h), and by certified mail:

Office ofthe ChiefCounsel ATTN: FAAPart 16 Docket Clerk AGC-600 Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 9-AWA-AGC-Part-16@faa.gov

Dated: October 22, 2014

4846-4304-9504.1 Counsel for Skydive Myrtle Beach, Inc. Robert G. Eastman, Esq. Eastman & Associates, LLC P.O. Box. 180 Charleston, SC 29402 robertgeastman@msn.com