FEDERAL AVIATION ADMINISTRATION 

OFFICE OF THE CHIEF COUNSEL 

SKYDIVE MYRTLE BEACH, INC., 

Complainant, 

v. 

HORRY COUNTY DEPARTMENT OF 

AIRPORTS, 

Respondent. 

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FAADocketNo.16-14-05 

~u rE ~J'{!Je ~ OCT 2 3 ZUI4 

PART 16 DOCKETS 

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4850-4484-3807.4 

RESPONDENT HORRY COUNTY DEPARTMENT OF AIRPORTS' 

ANSWER AND 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.com 
TABLE OF CONTENTS 

INTRODUCTION ........................................................................................................................... ! 

SUMMARY OF SDMB'S ALLEGATIONS .................................................................................. 2 

ANSWER. ........................................................................................................................................ 5 

I. SDMB HAS FAILED TO MEET ITS 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 Law Claims Are Outside The FAA's Jurisdiction ................................ .IO 

C. The State Law Allegations In the Complaint Do Not Make Out A 

Claim For Violation OfHCDA's Federal Obligations .......................................... 11 

1. All Other Commercial Aviation Tenants at CRE Were 

Offered a Claim For Violation ofHCDA's 

Federal Obligations .................................................................................... !! 

2. HCDA's "Refusal" to Relocate SDMB from Hangar 7 to 

Hangar 1 Does Not Violate Any Of The 

Federal Grant Assurances .......................................................................... 13 

3. HCDA Is Not Required To Perform Maintenance of Hangar 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 UNDER PART 16 ..................................... !? 

A. SBMB's Proposed Interpretation of 14 CFR Part 105 and 

14 CPR§ 139.329 Is Both Incorrect and Dangerous ............................................. !? 

B. Neither The Documentation Protocol Nor the Purported Landing 

Zone Restrictions Violate HCDA's Federal Grant Obligations ............................ 20 

AFFIRMATIVE DEFENSES ........................................................................................................ 23 

CONCLUSION .............................................................................................................................. 24 

4850-4484-3807.4 
TABLE OF AUTHORITIES 

Aerodynamics of Reading, Inc. v. Reading Reg. Airport Auth., 

FAA Docket No. 16-00-03 (July 23, 2011 (Final Decision and Order) ........................ 5, 12 

Ashcroft v. 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. United States EPA, 

600 F.2d 844 (D.C. Cir. 1979) ........................................................................................... 19 

Desert Wings Jet Center, LLC v. City of Redmond, Oregon, 

FAA Docket No. 16-09-07,21 (Nov. 10, 2010) (Director's Determination) .................... l5 

Drake Aerial Enters., LLC v. City of Cleveland, FAA Docket No. 

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 

Hill Air Co. v. Broward County Comm 'rs, FAA Docket No. 13-93-07, 21 

(Jan. 31, 2006) (Record ofDecision) ................................................................................. l6 

.letA way Aviation, Inc. v. Montrose Cty. Bldg. Auth., FAA Docket No. 16-08-0 I, 

2009 FAA LEXIS 251 (July 2, 2009) (Director's Determination) .................................... l2 

Long Island Jet Center East, Inc. v. County of Suffolk, New York, 

FAA Docket No. 16-04-05,2005 FAA LEXIS 66 

(Jan. 21, 2005) (Director's Determination) ........................................................................ !! 

Los Angeles Int 'l Airport Rates Proceeding ("First LAX Case"), Order 95-6-36 

(June 30, 1995) ..................................................................................................................... 5 

Nat 'l Airlift Support Corp. v. Fremont Cty. Bd. of Comm 'rs, 

FAA Docket No. 16-98-18, 15 (May 3, 1999) (Director's Determination) ...................... 13 

Pacific Coast Flyers, Inc. v. Cty. of San Diego, California, 

FAA Docket No. 16-04-08,2005 FAA LEXIS 514 (July 25, 2005) 

(Director's Determination") ............................................................................................... 12 

Penobscot Air Serv. v. Knox Cty., FAA Docket No. 16-97-04,24 

(Sept. 25, 1997) (Director's Determination) ...................................................................... IO 

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Penobscot Air Serv. v. FAA, 164 F.3d 713 (1st Cir. 1999) ............................................................ 10 

Ricks v. Greenwood-Leflore Airport/Airport Board, FAA Docket No. 16-09-04, 

2011 FAA LEXIS 37(Jan. 24, 2011) (Director's Determination) ....................................... 5 

Roadhouse Aviation, LLC v. City of Tulsa & the Tulsa Airports 

Improvement Trust, FAA Docket No. 16-05-08, 20 (June 26, 2007) .................. .11, 16, 20 

Skydive Monroe, Inc. v. City of Monroe, Georgia, FAA Docket No. 16-06-02, 

2007 FAA LEXIS 117 (Mar. 30, 2007) (Director's Determination) ........................... 13, 14 

Springfield Flight A cad. v. City of Springfield, FAA Docket No. 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 CFR Part 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, General Aviation Safety 

and Security Practices: A Synthesis of Airport Practice (2007) ........................................ 17 

FAA Advisory Circular (AC) No. 150/5200-37, Introduction to Safety 

Management Systems (SMS) for Airport Operators (Feb. 28, 2007) ................................ 23 

FAA Advisory Circular (AC) No. 105-2E, Sport Parachuting (Dec. 4, 2013) .............................. 19 

FAA Airport Compliance Manual ................................................................................................... 7 

FAA Airport Sponsor Assurances (Mar. 2014) ....................................................................... 6, 7, 8 

FAA Fact Sheet- Runway Safety (July 19, 2013) .......................................................................... 7 

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FAA Final Report DOT IF AAI AR-11/30, Development of Criteria for Parachute 

Landing Areas on Airports, 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 on the Airport Surface ............................................................................. 18 

FAA National Plan ofintegrated Airport Systems (NPIAS), 2013-2017 ....................................... 6 

FAA Order 5190.6B (Sept. 30, 2009) .............................................................................. 7, 8, 22,23 

General Aviation Safety and Security Practices: A Synthesis 

of Airport Practice (2007) ................................................................................................. 18 

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Pursuant to 14 CFR § 16.23 (d), Respondent Harry County Department of Airports 

("HCDA") hereby answers Complainant Skydive Myrtle Beach, Inc.'s ("SDMB") Part 16 

Formal Complaint and its supplemental Statement of Material Facts (together, the "Complaint"). 

SDMB has not met its burden of proof, nor has it stated a claim that HCDA has violated its 

federal Grant Assurances. For these 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 FAA requirements, including those embodied in the federal grant assurances. Many of the 

acts of which SDMB complains are part and parcel ofHCDA's efforts to operate Grand Strand 

Airport in North Myrtle Beach, South Carolina ("CRE") 1 in compliance with these federal 

obligations, including but not limited to its rehabilitation of the ramp and implementation of a 

reporting system intended to identify safety hazards and mitigate risks. SDMB's other 

complaints are related to standard policies that apply to all tenants and operators at CRE; 

specifically, each tenant's obligation to enter into an agreement with HCDA for the occupancy of 

premises on airport property, and each operator's obligation to seek the CRE Tower's permission 

before crossing active runways or taxiways. 

SDMB currently uses CRE as a base of operations for its skydiving business, and also 

uses a designated landing zone located on airport property. After SDMB's initial Space Use 

Permit for use of Hangar 7 at CRE expired on January 31,2014, SDMB has repeatedly refused 

to enter into a valid Space Use Permit for the use of the hangar. Over the course of the last year, 

1 CRE is the three-letter abbreviation code for Grand Strand Airport, though SDMB refers to the airport in its 

Complaint predominantly (and incorrectly) as GSA. 

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4850-4484-3807.4 
SDMB has also refused to comply with standard requests from HCDA to conduct its operations 

at CRE in a safe and commercially reasonable 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 in both state court and in this proceeding. It is HCDA's belief that SDMB has 

manufactured both the state action and this Complaint simply to gain advantage in negotiations 

of the Space Use Permit. Certainly the alleged motivation behind HCDA's "discrimination"-

that "HCDA's intent was to remove SDMB from Hangar 7 in order to rehabilitate the [CRE] 

ramp"- is not plausible. HCDA has applied for and received federal AlP grant funding to 

rehabilitate the ramp at CRE. Many tenants and airport operations must be temporarily relocated 

over the course of these ramp repairs. During Phase I of the project, which occurred in the 

summer and fall of2013, these temporary relocations occurred without incident. There is no 

reason why such relocations now constitute "discrimination" or "harassment" simply because 

HCDA is advancing into Phase 2 of the project. Simply put, 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 

Pursuant to 14 CFR § 16.23(h), HCDA has denied or admitted each of the allegations 

made in the Complaint, or stated that it is without sufficient knowledge or information to admit 

or deny an allegation. These responses are attached hereto as Schedule A, which is incorporated 

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herein by reference. What follows is a summary of the allegations set forth in the Part 16 Formal 

Complaint and Statement of Material Facts. 

As a threshold matter, SDMB has an appropriate and adequate venue for the claims in 

this action that assert violations of South 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 of Grant Assurance No. 22, with a dizzying array of 

disjointed allegations being set forth as some form of overall "unjust discrimination" against 

SDMB, or perhaps that CRE was not made available to SDMB "on reasonable terms." This 

theory includes allegations that are properly litigated only in state court: the propriety and lawful 

grounds for the ejectment action HCDA resorted to only after SDMB refused to enter into a 

Space Use Permit, and whether various actions (including the location of a pile of mulch) 

constitute "harassment" by HCDA. SDMB's remaining allegations simply do not evidence any 

violation of federal law. These allegations center on SDMB's objection to its obligation, as one 

of many aeronautical users at CRE, to contact the air traffic control tower before crossing active 

runways or taxiways, and its objection to the standard written records HCDA uses to document 

safety hazards. 

In February 2014, when SDMB allegedly first learned of the Letter of Agreement 

("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 Tower before crossing active runways or taxiways, SDMB inquired as to the basis for 

the obligation. The CRE Tower promptly sent SDMB a copy of 14 CFR § 139.329, which the 

2 Skydive Myrtle Beach, Inc. v. Horry Cty. Dep't of 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 Beach Magis. 

Ct.) (filed June 5, 2014). The South Carolina Court of Common Pleas recently dismissed the HCDA employees, 

whom SDMB had sued on an individual basis, from SDMB' s suit. 

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FAA had provided. Upon review of the LOA and this regulation, SDMB stated that it thought 

this provision was reasonable and agreed to abide by it. SDMB even inserted a similar provision 

into a proposed LOA for which it sought FAA approval. Despite its agreement that a 

requirement to contact the CRE Tower before any of its skydivers crossed active runways or 

taxiways was reasonable, in the following months SDMB's skydivers and personnel continued to 

cross active runways and taxiways, either on foot or in golf carts, without first receiving the CRE 

Tower's permission. Uncontrolled movement of this sort creates a significant safety risk to 

aeronautical users at CRE, as well as to SDMB's skydivers and personnel themselves. 

HCDA developed a reporting system to track all safety hazards at CRE, including such 

vehicle and pedestrian deviations, in an attempt to then mitigate those 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 obligation to seek permission from the CRE 

Tower before crossing an active runway or taxiway does not apply to SDMB. 

SDMB's specific argument appears to be that its skydivers should not be considered 

"pedestrians" under 14 CFR Part 139, and should not therefore be subject to the requirement to 

contact the CRE Tower before crossing an active runway or taxiway? According to SDMB, 

skydivers do not become pedestrians when they land, and instead remain "parachutists" under 14 

CFR Part 105. SDMB also objects to the ground communications and documentation protocols 

as unwarranted restrictions on its 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. 

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and is belied by the documents that SDMB attaches to its Complaint, which clearly state the 

exact location of SDMB 's proper 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 properly tracking 

in order to develop means to mitigate the hazard they present. 

ANSWER 

I. SDMB HAS FAILED TO MEET ITS BURDEN OF PROOF. 

"A basic requirement of Part 16 is that a complainant show with evidence that the 

sponsor is violating its commitments to the Federal government to serve the interests of the 

public by failing to adhere to its grant assurances." Aerodynamics of Reading, Inc. v. Reading 

Reg. Airport Auth., FAA Docket No. 16-00-03, at 15 (July 23, 2001) (Final Decision and Order). 

The complainant has the burden of proof. See id. at 16; Los Angeles Int'/ Airport Rates 

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 of proof, a complainant 

"cannot simply allege that an airport sponsor is in violation of its grant assurance without 

fulfilling its burden of proof." Ricks v. Greenwood-Leflore Airport/Airport Board, FAA Docket 

No. 16-09-04,2011 FAA LEXIS 37, at *61 (Jan. 24, 2011) (Director's Determination). Rather, 

the complaint "must present complete allegations and substantial and probative evidence to 

sustain an allegation of a grant assurance violation." Id. (emphasis added); see id., at *66 

(requiring reliable, probative and substantial evidence). 

Notably, the case law reflects an assumption that a complainant has at least made a 

conclusory allegation that a sponsor has violated a particular grant assurance; here, SDMB has 

not even done that. HCDA should not be required to divine from SDMB's rambling, 

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disorganized 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 of these accusations and SDMB has not provided the "reliable, probative, and substantial 

evidence" necessary to meet its burden of proof. For these reasons, SDMB's Complaint should 

be dismissed. 

II. HCDA'S FEDERAL OBLIGATIONS. 

CRE is a public-use airport owned and operated by the County of Harry, South Carolina, 

which is 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); FAA National Plan oflntegrated Airport Systems (NPIAS), 

2013-2017, Appendix A at A-92. 

As the owner and operator of CRE, which has been financed, in part, with funds provided 

by the FAA under the Airport Improvement Program, Harry County is contractually obligated to 

comply with certain Grant Assurances promulgated by the FAA. See 49 U.S.C. § 47107(a) 

(2012); FAA Airport Sponsor Assurances (Mar. 2014).5 

"It is the policy of the United States ... that the safe operation of the airport and airway 

system is the highest aviation priority." 49 U.S.C. § 47101(a) (2012). Accordingly, and 

"consistent with the 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-month period ending September 17, 2013. See FAA Form 5010 

"Airport Master Record" for Grand Strand Airport at North Myrtle Beach (July 24, 20 14). 

5 Available at www. faa.gov/airports/aip/ grant_ assurances/media/airport -sponsor-assurances-aip. pdf. 

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Airport 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. "A runway incursion is any unauthorized presence on a runway, 

regardless of whether or not an aircraft, vehicle or pedestrian presents a potential conflict to 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). "The reduction in the 

number and severity of runway incursions is one of the FAA's top priorities." Id., at I. 

Certain of the 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 of the 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 of aircraft operations and to protect the public using the airport." 

FAA Order 5190.6B, § 7.8(c) at 7-7. In fact, "[o]ne of the most important functions oflocal 

regulations is to control the use of the airport in a manner that will eliminate hazards to aircraft 

and people and structures on the ground." !d., § 7.9 at 7-7. These regulations are sometimes 

needed "to reduce the likelihood of a runway incursion." !d. 

6 The Order "establishes the policies and procedures for FAA personnel to follow in carrying out the 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. 

7 Available at www.faa.gov/news/fact_sheets/news _story.cfm?news!d~l4895. 

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Grant Assurance 22 ("Economic Nondiscrimination") sets forth the following obligation 

for an airport sponsor: 

a. It will make the airport available as an airport for public use on reasonable 

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. 

FAA Airport Sponsor Assurances, 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 met by all users of the airport as may be necessary for the 

safe and efficient operation of the airport. 

1. The sponsor may prohibit or limit any given type, kind or class of aeronautical 

use of the airport if such action is necessary for the safe operation of the 

airport or necessary to serve the civil aviation needs of the public. 

Id., at 11. "An airport proprietor may adopt reasonable minimum standards for aeronautical 

businesses and adopt routine regulations for use and maintenance of airport property by 

aeronautical users and the public,'' because this falls within the provenance of Grant Assurance 

22(h). See FAA Order 5190.6B, § 14.4 at 14-2. "These kinds of rules typically do not restrict 

aeronautical operations." Id. Additionally, "[a] prohibition or limit [pursuant to Grant 

Assurance 22(i)] may be based on safety or on a conflict between classes or types of operations." 

Id., § 14.3 at 14-2. "A prohibition or limit on aeronautical operations justified by the sponsor on 

the basis of safety ... will be evaluated based on the stated purpose, justification, and support 

offered by the sponsor." Jd., § 14.4(d) at 14-3. 

III. SDMB'S STATE LAW CLAIMS SHOULD BE DISMISSED. 

SDMB's Complaint presents a mixture of federal and state law issues. As noted above, 

the federal cla\ms stem from SDMB's apparent assertion that HCDA has failed to make CRE 

available on reasonable terms and conditions, and has unjustly discriminated against SDMB. As 

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a threshold matter, all of SDMB'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 federal jurisdiction- for instance, those relating to the reasonableness of 

the terms within the Space Use Permit proffered 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 occupying premises at CRE execute a form of agreement 

setting forth the terms and conditions for the use of that premises. Among other things, these 

agreements help HCDA ensure that its tenants have met the necessary insurance requirements 

and agreed to indemnity provisions. When HCDA took 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-month term, 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 prior to conveying property rights through lease agreements. SDMB was among several 

commercial aviation tenants who executed these temporary Space Use Permits. The others were 

Executive Helicopters, Inc. and Barnstormers Aerial Advertising, LLC (a banner 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 each tenant 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. 

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SDMB has objected to only one of the new terms in the new Space Use Permit that 

HCDA offered- a 24% gross sales percentage fee. HCDA reviewed the proffered Space Use 

Permit and realized that this term - which had been included in the permits offered to 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 with these 

tenants as soon as it could. Both Barnstormers and Executive Helicopters have now entered into 

such leases (contrary to the allegations in the 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 ordered that 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 of the grant assurances is to protect the 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." Penobscot Air Serv. v. Knox 

Cty., FAA Docket No. 16-97-04, 24 (Sept. 25, 1997) (Director's Determination), aff'd, 

Penobscot Air Serv. v. FAA, 164 F.3d 713 (1st Cir. 1999). Accordingly, the grant assurances "do 

8 The banner tow operator referenced in the SMF, Barnstormers, does not pay this fee because it pays a per trip fee, 

which is standard practice for banner tow operators. 

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not ... prevent the airport from exercising proprietary powers, such as determining how to 

structure the leasing of property on the 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 oflease terms to be within its Part 16 jurisdiction. 

See, e.g., Roadhouse Aviation, LLC v. City of Tulsa & the Tulsa Airports Improvement Trust, 

FAA Docket No. 16-05-08, 20 (June 26, 2007) (Final Decision and Order); Long Island Jet 

Center East, Inc. v. County of Suffolk, New York, FAA Docket No. 16-04-05,2005 FAA LEXIS 

66, *60 (Jan. 21, 2005) (Director's Determination). Similarly, "the issue of whether an eviction 

action is wrongful, is a matter to be resolved under State Law." Long Island Jet Center East, 

Inc., 2005 FAA LEXIS 66, at *60. See also Springfield Flight Acad. v. City of Springfield, FAA 

Docket No. 16-10-03,29 (Aug. 25, 2011) (Director's Determination) ("the Director does not feel 

it appropriate to opine on matters related to an eviction proceeding as such action is outside the 

scope of 14 CFR Part 16"). 

C. The State Law Allegations In The Complaint Do Not Make Out A Claim For 

Violation OfHCDA's Federal Obligations. 

1. All Other Commercial Aviation Tenants at CRE Were Offered the Same 

or Similar Space Use Terms. 

SDMB's conclusory allegation that it has "otherwise [been] treated differently from other 

commercial tenants" is insufficient to state a claim of unjust discrimination under Grant 

Assurance 22. See Compl. at 1; see also Iqbal, 556 U.S. at 678 ("Threadbare recitals of the 

elements of a cause of action, supported by 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 Grant Assurance 22. Indeed, it is a key element of the law in aviation: "the 

FAA has acknowledged that several factors can distinguish parties that a sponsor can justly treat 

differently, without violating its Federal obligations. Such factors may be: period of lease, 

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business plan, proposed location of facilities, level of service and amenities, scope of services, 

investment, market conditions, and reasonable actions by the sponsor to promote and protect its 

ability to continue to serve the interests of the public in civil aviation, including the enlistment of 

prudent business practices that may change over time." JetAway Aviation, 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 Docket No. 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, it is absolutely permissible for 

an airport to enter into different agreements, or require agreements, with differing terms. See, 

e.g., Pacific Coast Flyers, Inc. v. Cty. of San Diego, California, FAA Docket No. 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 of aeronautical users based on 

those distinctions."); Aerodynamics of Reading, Inc., FAA Docket No. 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 in time"). SDMB's claim that it was "discriminated" against 

because it was not offered the exact same terms as some of the 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. 

Nor has SDMB met its burden of showing that "it requested similar terms and conditions 

as other similarly situated airport users and was denied for unjust reasons." Springfield Flight 

A cad., FAA Docket No. 16-10-03, at 18. There are no other similarly situated tenants at the 

12 

4850·4484·3807.4 
airport, i.e., tenants who "are making the same or similar uses of the airport facilities." Skydive 

Monroe, Inc. v. City of Monroe, Georgia, FAA Docket No. 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 banner tow operator, and a company offering helicopter rides. Even 

setting aside the fact that there are no similarly-situated tenants to SDMB, SDMB still has not 

been treated 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 ... on more favorable terms than those employed by 

comparable tenants does not qualify as a denial of access on reasonable terms without unjust 

discrimination." Nat'! Airlift Support Corp. v. Fremont Cty. Bd. ofComm 'rs, FAA Docket No. 

16-98-18, 15 (May 3, 1999) (Director's Determination), aff'd, (Sept. 20, 1999) (Final Decision 

and Order). 

SDMB argues, seemingly in the alternative, that it has been treated the same as other 

CRE tenants, but that 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 it make out a claim 

of unjust discrimination. As noted above, Grant Assurance 22 requires that tenants be similarly 

situated for there to be discrimination between them. By definition, tenants at different airports 

are inherently not similarly situated. Moreover, SDMB does not have standing to complain of 

unjust discrimination with regard to other CRE tenants. 

2. HCDA's "Refusal" to Relocate SDMB from Hangar 7 to Hangar I Does 

Not Violate Any of the Federal Grant Assurances. 

"Reasonable access" under Grant Assurance 22 "means for the use of aeronautical 

facilities on the airport, not necessarily the ability to lease particular space on the airport." 

13 

4850-4484-3807.4 
Skydive 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 of skydiving operations" that would 

constitute a violation of this 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 of termination of SDMB's Operating Permit. Id. In the 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 of the 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, it has complied with Grant Assurance 22. 

SDMB argues for the first time in its Statement of Material Facts that it requested to be 

relocated to Hangar 1, and HCDA's denial of this request is a violation offederallaw. See SMF 

at 2. To the contrary, HCDA has never received a formal request to sublease Hangar I. 

Declaration of Hugh Jason Terreri, HCDA-000130 at~ 8. HCDA also states that Hangar 1 is 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 of the airport in the vicinity of Hangar 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 revenueproducing parking spaces on the CRE ramp in order to 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-foot taxilane wingtip clearance from 

14 

4850-4484-3807.4 
fixed or moveable objects. !d. There is also no direct access from the landside to Hangar I. All 

ofSDMB's customers would therefore be required to traverse the active apron to access Hangar 

I, adding a significant amount of vehicular and pedestrian traffic to the ramp. !d.~ 7. 

3. HCDA Is Not Required to Perform Maintenance of Hangar 7. 

HCDA is obligated under Grant Assurance 19 to maintain "[t]he airport and all facilities 

which are necessary to serve the aeronautical users of the airport ... in a safe and serviceable 

condition." FAA Airport Sponsor Assurances, at 9-10. While this assurance requires an airport 

sponsor to maintain the airfield, including all movement areas, in a safe and serviceable 

condition, it does not require a sponsor to 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.") HCDA has and will continue to take all commercially reasonable maintenance measures 

in compliance with Grant Assurance 19, but it has no obligation under federal law to maintain 

buildings occupied by third parties. The allocation of repair and maintenance responsibilities 

between an airport operator and its tenants is properly addressed in an agreement between the 

two parties, which is yet another reason why HCDA requires that all occupants of premises at 

CRE enter into an agreement with HCDA. In addition, a South Carolina state court has already 

determined that 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 property pending the 

disposition of its appeal). SMF Ex. A at 1-4. For these reasons, SDMB 's claims that HCDA did 

not address maintenance issues at Hangar 7-the Statement of Material Facts specifically refers 

to a broken hangar door- do not state a claim that HCDA has violated federal law. 

15 

4850-4484-3807.4 
D. SDMB's Harassment Claim Is A State Law Claim That Must Be Dismissed. 

SDMB alleges that it has "been continually harassed in its FAA-recognized aeronautical 

activity of non-emergency parachuting or skydiving." Compl. at I. SDMB also alleges that it 

has "been subjected to 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's jurisdiction and should be dismissed. See Hill Air Co. v. Broward County Comm 'rs, 

FAA Docket No. 13-93-07, 21 n.23 (Jan. 31, 2006) (Record of Decision). In Hill Air Co., the 

complainant alleged harassment of its business by, inter alia, the airport's notice to vacate its 

leasehold, its engagement of a photographer to take pictures of the 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 of seeking redress of 

these issues." !d. 

SDMB does not identify specific facts that constitute the alleged "harassment," but the 

facts alleged in its Complaint are similar to those in Hill Air, and include notice to terminate its 

occupancy of a hangar (FP 3 7), photos and other observation being undertaken by an HCDA 

airport employee (FP 51, 56), and a pile of peat moss being left on three 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 should be dismissed. 

Even if SDMB' s state law "harassment" claims are considered along with its federal 

claims under Grant Assurance 22, those claims are subject to dismissal, for the reasons stated 

above in Section III.C, and below, in Section IV. See, e.g., Roadhouse Aviation v. City of Tulsa 

& the Tulsa Airports Improvements Trust, FAA Docket No. 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 of Grant Assurance 22, and finding 

no violation of the Grant Assurance). 

IV. SDMB'S ALLEGATIONS REGARDING VEHICLE AND PEDESTRIAN 

DEVIATIONS DO NOT STATE A CLAIM UNDERPART 16. 

SDMB's only formally stated "issue" in the Complaint is whether the provisions of Part 

139 with regard to "pedestrians" apply to Part 105 "parachutists" after they land. SDMB links 

this "issue" to the overarching themes of its Complaint, namely, its objection to the reporting 

protocol HCDA and the CRE Tower have implemented to document safety hazards, including 

vehicle and pedestrian incursions on active runways and taxiways, and its further objection to 

purported restrictions on its landing zone. Given these themes, it appears that SDMB's stated 

"issue" also falls within the penumbra of SDMB's allegations that HCDA has violated Grant 

Assurance 22 by unjustly discriminating against SDMB. Because HCDA's conduct falls well 

within the bounds of permissible regulation under Grant Assurance 22, and also shows HCDA's 

efforts to comply with Grant Assurance 19, SDMB's claims should be dismissed.9 

A. SDMB's Proposed Interpretation Of 14 CFR Part 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 CFR Part 139; 

however, "many general aviation airports voluntarily incorporate appropriate elements of Part 

13 9 and their supporting Advisory Circulars to enhance the safety of their facilities." Airport 

Cooperative Research Program, General Aviation Safety and Security Practices: A Synthesis of 

Airport Practice, at 6 (2007). Pursuant to Part 139, an airport operator must: 

9 The Statement of Material Facts also refers to increasing holds of skydiving aircraft as part of the alleged campaign 

against it. HCDA is not responsible for any such holds, which would have been imposed by the private operator of 

the CRE Tower, Robinson Aviation, Inc. HCDA has not and will not instruct the CRE Tower on how to manage its 

air traffic control responsibilities. Moreover, the FAA does not have jurisdiction over the private tower operator, 

Robinson Aviation, who was dismissed from this action before it was docketed for that very reason. 

17 

4850-4484-3807.4 
Establish and implement procedures 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 of noncompliance 

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 each pedestrian or 

vehicle and the tower." 14 CFR § 139.329(c). In addition, the airport operator must maintain a 

"description and date of any accidents or incidents in the movement areas and safety areas 

involving air carrier aircraft, a ground vehicle, or a pedestrian." 14 CFR § 139.329(£)(2). 

SDMB admits that 14 CFR § 139.329 "requires towered operators to implement policies 

for vehicles and pedestrians from entering into designated areas by such measures as two-way 

radio communication with the Air Traffic Control Tower," and that HCDA and the CRE Tower 

"have a Letter of Agreement (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 with these provisions ... and implemented internal 

procedures to meet the terms of the ... LOA." FP 16. On February 14,2014, in response to the 

CRE Tower's provision of a copy of 14 CFR § 139.329, SDMB stated: "Appreciate the heads up 

and in conjunction with the LOA this makes complete sense. Now that we have a copy, we have 

implemented SOPs here where this should no longer present itself as an issue henceforth." Ex. 1 

10 These provisions accord with FAA guidance with respect to ground vehicles: "As an operator of a vehicle you 

must have authorization from [air traffic control] before you enter any part of the airport movement area. When the 

tower is in operation, you must utilize a two-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 the Airport 

Surface, at 19, available at 

http://www.faa.gov/airports/runway _safety/media/ground_ vehicle _guide _proof_final.pdf. Indeed, even emergency 

vehicles must abide by these provisions: "All vehicles operating at a towered airport, including ARFF and police, 

are required to receive explicit runway crossing instructions from A TC. This applies to all runways encountered: 

active, inactive and closed, regardless of the type of emergency!" !d., at 29. 

18 

4850-4484-3807.4 
at 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 safety provisions of 14 CFR 

§ 139.329 do not apply to it because sport parachuting safety is governed by 14 CFR Part 105. 

More specifically, SDMB appears to argue that when a skydiver inadvertently lands on an area 

outside the designated landing zone, the parachuting safety protocol to "vacate" the area "as soon 

as practicable" allows it to ignore its obligation to contact the CRE Tower for permission before 

SDMB or its skydivers cross active taxiways and runways.

11 See Com pl. at 2 (quoting FAA 

Advisory Circular (A C) No. 105-2E, Sport Parachuting (Dec. 4, 2013)). 

As a matter of statutory interpretation, the safety provisions of Part I 05 and Part 139 

must be read together to give both meaning. "[T]he maximum possible effect should be afforded 

to all statutory provisions, and, whenever possible, none of those provisions rendered null or 

void." Citizens to Save Spencer County v. United States EPA, 600 F.2d 844, 870 (D.C. Cir. 

1979). If two provisions "point generally in a conunon direction ... it is the task of an agency 

with the requisite authority to pursue a middle course that vitiates neither provision but 

implements to the fullest extent possible the directives of each." !d. at 871. 

Part 105 provides, "No person may conduct a parachute operation ... if that operation 

creates a hazard to air traffic or to persons or property on the surface." 14 CFR § 105.5. 

However, Part 105 does not include specific provisions addressing what happens to a parachutist 

after landing. It also does not contradict Part !39's provisions to prevent runway incursions. 

Because both Part 105 and Part 139 "point generally in [the] common direction" of ensuring the 

safety of all persons, vehicles, and aircraft at airports which host skydiving operations, the FAA 

11 To clarify, HCDA agrees that, if a skydiver inadvertently lands on an active runway or taxiway and is physically 

capable of vacating the movement area on her own, then she should do so. Once out of the movement area, the 

skydiver should await assistance and/or contact the CRE Tower before crossing any other runways or taxiways. 

19 

4850-4484-3807.4 
can "pursue a middle course" that allows Part 105 to address safety in the air and Part 139 to 

address safety on the ground. Part 105 should not be read to supersede Part 139, as SDMB 

suggests, because it would have the unacceptable effect of rendering Part 139 null and void as it 

applies to one particular type of pedestrian. 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 documentation protocols for 

vehicle and pedestrian incursions 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." Drake Aerial Enters., LLC v. 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 of the airport ... in a safe and serviceable 

condition" extends to active runways and taxiways. See, e.g., Roadhouse Aviation, LLC, FAA 

Docket No. 16-05-08, at 15 (finding sponsor of general aviation airport that accepted AlP grant 

funds is obligated "to ensure that aircraft movements on public 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 of the airport as may be necessary 

for the safe and efficient operation of the airport." This is exactly the type of "condition" that is 

contained within the HCDA-CRE Tower LOA, which requires pedestrians and vehicles to 

contact the CRE Tower before crossing an active runway or taxiway and potentially causing an 

12 Not to mention that Part 105 cannot be read to supersede the federal regulations governing vehicle runway 

incursions; one would be hard pressed to think of a situation where a golf cart could qualify as a "parachutist." 

20 

4850-4484-3807.4 
accident with aircraft using that runway or taxiway. See Ex. 2 at 1-4. The terms in the proposed 

LOA to which SDMB objects also accord with the 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 Landing Areas on Airports, at 26, § 8.2.2 (May 2012) ("Final Report"). 

An LOA of this type can "include movements required by the skydiver operator on the airfield as 

well as instructions and/or restrictions for crossing runways, operating vehicles on the airfield, 

radio communications, and emergency procedures." I d. "The LOA should also address the 

procedures if a parachutist lands outside the designated PLA or in a protected area of the 

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 

only because SDMB is the only operator at CRE who has been consistently unable to follow the 

simple safety rules in place at the airport, despite HCDA's and the CRE Tower's repeated 

presentation of their 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 within the 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 if the 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 

4850-4484-3807.4 
documentation protocols were specific to SDMB- which they are not- they should be evaluated 

in light ofHCDA's stated purpose to maintain the safety of operations at CRE. See FAA Order 

5190.6B § 14.4( d) at 14-3 ("A prohibition or limit on aeronautical operations justified by the 

sponsor on the basis of safety ... will be evaluated based on the stated purpose, justification, and 

support offered by the sponsor."). 

HCDA has not imposed auy prohibitions or limitations on SDMB's business, aud the 

ground communications aud documentation protocols described in the Complaint are well within 

the bounds of au airport's permissible regulation of skydivers. 14 For instance, at Sebastian 

Municipal Airport in Florida, which hosts 20,000 to 40,000 jumps per year, the airport "does not 

allow parachutists to walk on areas of the airport outside the established PLA." Final Report at 

14-15, § 7.1.2. Meanwhile, at Herlong Municipal Airport in Florida, which hosts approximately 

2,000 to 3,000 jumps per year of mostly tandem parachutists, the airport and the skydiving 

operator "have an agreement stating that if a parachutist needs 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, 

when the CRE Tower stated in April 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 ("If a sponsor believes that there is a safety 

issue with the flight operations of an individual aeronautical operator ... the sponsor should 

crashed into the side of a garage. See htto://www.necn.com/news/new-england/Police-Respond-to-SkydivingAccident-2773 803 81.htm1. 14 Examples of FAA-approved airport rules that prohibit, limit, or regulate aeronautical operations by whole classes 

or types of operation pursuant to Grant Assurance 22(i) include: 

(a) Limiting skydiving, soaring, and banner towing operations to certain times of the day and 

week to avoid tbe times of highest operation by fixed-wing aircraft, 

(b) Banning skydiving, soaring, ultralights, or banner towing when the volume of fixed-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 of the airfield and 

certain traffic patterns to avoid conflict witb fixed-wing patterns. 

FAA Order 5190.6B, § 14.4(d)(l) at 14-3. 

22 

4850-4484-3807.4 
report the issue to the Flights Standards Service as well as bringing it to the attention of the 

operator's management."). 

The "partnership" between HCDA and the CRE Tower described in the Complaint is 

exactly the type of collaborative approach to safety that helps an airport sponsor achieve the 

FAA's goal of safe operations. HCDA seeks to gather data regarding incidents and accidents 

consistent with the guidance in FAA Advisory Circular (AC) No. 150/5200-37, Introduction to 

Safety Management Systems (SMS) for Airport Operators (Feb. 28, 2007). The essence of this 

work is to identify hazards, rank risks of hazards by severity and likelihood, mitigate 

unacceptable risks, and review the mitigated hazards to determine whether the risk has been 

reduced to 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 of SDMB' s refusal to contact the CRE 

Tower before moving across active runways and taxiways. By gathering data regarding the 

types of missed landings, along with related data such as wind and weather, HCDA may be able 

to determine whether the hazards of these errant landings may be mitigated. 

AFFIRMATIVE DEFENSES 

First Affirmative Defense 

SDMB fails to state a claim because its allegations fall outside the FAA's jurisdiction. 

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 

4850-4484-3807.4 
Fourth Affirmative Defense 

SDMB does not have standing to bring a challenge under Part 16 on behalf of other 

tenants or businesses at CRE. 

Fifth Affirmative Defense 

The Complaint does not contain sufficient evidence to meet SDMB's burden of proof to 

establish that HCDA has violated any of its federal grant assurances, including without limitation 

Grant Assurance 22. 

Sixth Affirmative Defense 

HCDA's repaving of the CRE ramp is reasonable and not unjustly discriminatory. 

Seventh Affirmative Defense 

HCDA has ensured that all tenants relocated as result of the ramp repaving project are 

able to continue their aeronautical operations. 

CONCLUSION 

Based on the foregoing, SDMB's Part 16 Formal Complaint, including its supplemental 

Statement of Material Facts, should be dismissed. 

24 

4850-4484-3807.4 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing Respondent Horry County 

Department of Airports' Answer and Affirmative Defenses to Complainant Skydive Myrtle 

Beach, Inc.'s Part 16 Formal Complaint and Statement of Material Facts, including Schedule A 

and supporting documents, on the following persons at the following addresses, by electronic 

mail in accordance with 14 CPR Part 16 § 16.13(h), and by certified mail: 

Office of the Chief Counsel 

ATTN: FAA Part 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