BEFORE THE 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

STERLING AVIATION, LLC, 

Complainant, 

V. 

MILWAUKEE COUNTY, WISCONSIN, 

Respondent. 

|I^feu^lg| 

AUG 212009 

,MS> 

PART 16 DOCKETS 

Docket No. 16-09-03 

RESPONDENT'S REBUTTAL 

Please serve: 

Scott P. Lewis 

Melissa C. Allison 

ANDERSON & KREIGER LLP 

One Canal Park, Suite 200 

Cambridge, MA 02141 

T: 617.621.6560 

F: 617.621.6660 

slewis@andersonkreiger.com 

Timothy R. Karaskiewicz 

Office of the Milwaukee County Corporation Counsel 

Milwaukee County and General Mitchell 

International Airport 

901 North Ninth Street, Room 303 

Milwaukee, WI 53233 

T: 414.747.5712 

F: 414.747.4525 

Timothy.Karaskiewicz@milwcnty.com 

Counsel for Respondent 

r--) 

- ,.T 

August 20, 2009 
BEFORE THE 

FEDERAL AVL\TION ADMINISTRATION 

WASHINGTON, D.C. 

STERLING AVIATION, LLC, 

Complainant, 

V. 

MILWAUKEE COUNTY, WISCONSIN, 

Respondent. 

Docket No. 16-09-03 

RESPONDENT'S REBUTTAL 

The Respondent Milwaukee County (the "Coimty') submits this Rebuttal under 14 C.F.R. 

§ 16.23(f) to the Reply to Respondent's Answer (the "Reply") and the Answer to Respondent's 

Motion to Dismiss (the "Opposition") filed by the Complainant Sterling Aviation, LLC 

("Sterling"), Sterling's Reply and Opposition present no new evidence that could possibly 

justify an investigation or enforcement action by the FAA. The County responds below to 

Sterling's misconceived and factually unsupported argument that Sterling is similarly-situated to 

the Cessna Service Center ("Service Center") operated by the Cessna Aircraft Company 

("Cessna") at General Mitchell International Airport ("GMIA"); Sterling's failure to refiite the 

County's legitimate reasons for treating Sterling and Cessna differently; and Sterling's belated 

and unacceptable request for an amendment to its lease. The Coimty otherwise continues to rely 

on the evidence and arguments offered in its Answer and Motion to Dismiss. 
Argument. 

L STERLING MISCONCEIVES THE APPLICABLE LEGAL STANDARD. 

Sterling argues in its Reply that Sterling and Cessna are similarly-situated as a matter of 

law because they are both maintenance providers at GMIA (Reply, ^112, 3). Sterling's argument 

completely misconceives the test applied by the FAA and the courts to determine whether airport 

tenants are similarly-situated. To prevail on its unjust economic discrimination claim. Sterling 

must show that it is similarly-situated to Cessna "in all relevant respects." See Rectrix 

Aerodrome Centers, Inc. v. Barnstable Municipal Airport Commission, F. Supp. 2d , 

2009 WL 1989096, at *5 (D. Mass. 2009) (internal quotations omitted). See also Memorandum 

in Support of Respondent's Motion to Dismiss ("Motion to Dismiss") at 6, n.3. As the County 

explained in its Motion to Dismiss (at 6-9), there are many differences between the business 

Sterling runs at GMIA and the terms of its lease, on the one hand, and the business Cessna runs 

at GMIA and the terms of its lease, on the other hand. The fact that Sterling and Cessna both 

happen to operate Part 145 Repair Stations at GMIA does not come close to establishing that 

they are similarly-situated in all relevant respects. 

Sterling's assertion that the legal standards applied in Penobscot Air Service, Ltd. v. 

County of Knox Board of Commissioners, FAA Docket No. 16-97-05, 1997 WL 1120745 

(Sept. 25, 1997) (Record of Determination), do not apply here (Opposition at 3-4) is flatly 

wrong. It makes no difference that the Penobscot decision did not address self-fueling rights.' 

This proceeding also is not about self-fueling rights. After the FAA confirmed the County's 

In Maxim United LLC v. Board of County Commissioners of Jefferson County, FAA Docket No. 16-01-10, 

2002 WL 963590 at ^16 (April 2, 2002) (Director's Determination), the FAA did not refuse to apply Penobscot to 

an unjust economic discrimination claim concerning commercial fueling rights, as Sterling suggests (Opposition at 

(continued...) 
position on the permissible scope of Sterling's self-fueling operations (County Exhibit 7), 

Sterling dropped its self-fueling complaint and repackaged its claim in this proceeding as one of 

unjust economic discrimination. The Penobscot decision makes clear that even where lease 

terms permit two operators to provide the same or similar services, the FAA will look to actual 

operations to determine whether the operators are similarly-situated. See id. at *15. Here, 

neither the lease terms nor the operations of Sterling and Cessna are similar. Therefore, under 

Penobscot and the other authorities cited by the Coimty in its opening papers, Sterling's 

Complaint must be dismissed. 

II. STERLING OFFERS NO EVIDENCE TO SHOW THAT STERLING AND 

CESSNA ARE SIMILARLY-SITUATED. 

Sterling - all but acknowledging that the unjust discrimination claim presented in its 

Complaint cannot possibly past muster - now claims that Cessna and Sterling are similarlysituated because Cessna is a charter operator and an aircraft management operator (Opposition 

at 2-3). Sterling's only support for this assertion is that CitationShares, a division of the Cessna 

Aircraft Company, performs as part of its general business activities charter operations under 

Part 135 and fi-actional ownership program management services under Part 91 (Opposition 

at 2-3). Sterling does not offer a shred of evidence to show that Cessna operates charter services 

or aircraft management services out of its Service Center at GMIA? In fact, all the evidence in 

(continued...) 

4). Rather, the language of the Maxim decision cited by Sterling simply stands for the proposition that a federallyobligated airport cannot vitiate a tenant's se/^fueling rights through restrictive lease terms. 

^ The Exhibits contained in Respondent's volume of Supporting Evidentiary Materials are referred to as 

"County Exhibit _. " 

^ Apparently, the best Sterling can do on this score is the testimony of Sterling's President and CEO, Robert 

Gort, that he has "regularly seen CitationShares program aircraft on the Cessna ramp at GMIA" (Gort Aff., ^I6). 

(continued...) 
the record is to the contrary: Cessna is not permitted under its lease to engage in charter or 

aircraft management operations; Cessna has no commercial operating permits fi-om GMIA to 

perform charter or aircraft management operations; and Cessna has confirmed that it does not 

engage in those operations at GMIA (Affidavit of Paul Boucher, attached as Exhibit A to this 

Rebuttal). See also Cessna Lease (Exhibit 1 to Complaint), f 3; Wright Affidavit (County 

Exhibit B), ^ 7-9. The evidence unequivocally shows that Sterling and Cessna are not 

similarly-situated tenants at GMIA."* 

III. STERLING HAS NOT REFUTED THE COUNTY'S LEGITIMATE REASONS 

FOR TREATING STERLING AND CESSNA DIFFERENTLY. 

Sterling's Reply and Opposition offer no meaningful challenge to the County's proof that 

it has legitimate reasons to treat Sterling and Cessna differently. First, Sterling does not dispute 

that Scott Aviation entered into the lease that is now the Sterling Lease eight years after the 

Cessna Lease was executed; that Scott Aviation voluntarily entered into a lease that was different 

from Cessna's; or that Sterling voluntarily accepted those disparate terms when it chose to 

acquire Scott Aviation. Sterling instead insinuates that none of that matters because Scott 

Aviation was on the Airport (operating under an earlier lease)^ before Cessna and "was 

exercising the same rights later specifically granted to Cessna" with the consent of Airport 

(continued...) 

That is entirely unsurprising given that the Cessna facility at GMIA is a repair and maintenance center for Citation 

aircraft, and it certainly does not prove that Cessna, through its CitationShares program, is running charter or 

fractional aircraft management services out of GMIA. 

* Even if the general business activities of Cessna's CitationShares subsidiary were somehow relevant to the 

comparison between Sterling's and Cessna's operations at GMIA - and they are not - Sterling is not similarly 

situated to CitationShares. CitationShares operates a fractional ownership program and provides aircraft 

management services under 14 C.F.R. Part 91. Sterling acknowledges that it does not offer the same services as 

CitationShares (Opposition at 3). 
management (Opposition at 5).^ GMIA never gave Scott Aviation permission to engage in any 

of the currently-disputed fueling operations, as Sterling claims. See Supplemental Affidavit of 

C. Barry Bateman, attached as Exhibit B to this Rebuttal. But even if GMIA had, it remains the 

case that Scott Aviation entered into a new lease in 1997 that by its explicit terms grants Scott 

Aviation different and more limited fueling rights than those granted to Cessna in 1989, and 

Sterling chose to assume that lease when it acquired Scott Aviation. That fact alone should bar 

Sterling's present Complaint (Motion to Dismiss at 8, n.5). 

Furthermore, even if GMIA's past course of dealing with Scott Aviation could fairly be 

interpreted to give Sterling the fueling rights it now seeks - and there is no such evidence - the 

County would be prohibited by federal law fi-om allowing Sterling to exercise that right. The 

County's federal grant obligations cannot be suspended by contractual agreement. See Platinum 

Aviation v. Bloomington- Normal Airport Authority, Docket No. 16-06-09, 2007 WL 4854321, 

*2 (Final Decision and Order) (November 28, 2007) (state court determination that lessee had 

certain contractual rights did not overcome federal grant obligations prohibiting the exercise of 

those rights). The County therefore cannot accede to Sterling's demands, because to do so 

would violate the County's obligation uniformly and fairly to enforce the Minimum Standards 

governing third-party into-plane fueling operations at GMIA {see Motion to Dismiss at 3). This 

obligation to comply with its federal grant assurances is the root of the County's second 

(continued...) 

^ That earlier lease likewise limited fueling to Scott Aviation's owned or leased aircraft. 

' Sterling mischaracterizes the Affidavit of Tom Scott ("Scott Affidavit"). The Scott Affidavit (attached to 

the Complaint as Exhibit 4) does not state that Scott Aviation was exercising the same rights later expressly granted 

to Cessna. Rather, it states that Scott Aviation "fueled all planes on [its] Certificate whether or not they were flown 

as FAA Part 135 charters or as FAA Part 91 flights for the owners themselves" (Scott Aff, ^ 5). 
legitimate reason to treat Sterling and Cessna differently: if Sterling were permitted to engage in 

any third-party into-plane fueling. Sterling would compete unfairly with the FBOs at GMIA 

which are required to meet the County's Minimum Standards for the provision of Line Services 

(Motion to Dismiss at 10). 

Sterling counters that the County inaccurately claims that Sterling wishes to be an FBO 

or has acted as an FBO, and that Sterling only wishes to receive the same fueling right as Cessna 

(Reply at 1; Opposition at 2, 5). Sterling either misses the central point or is trying to obfuscate 

it. It is precisely because Sterling and Cessna perform different operations that it is not possible 

to grant Sterling the "same" fueling rights as Cessna. Under its lease, Cessna is permitted to 

provide fuel to its "customers, business invitees and guests" (Cessna Lease, f 11). Cessna's 

customer base at GMIA is limited to purchasers of Cessna Citation model aircraft or owners of 

Citation aircraft requiring repairs or maintenance work. Cessna is barred by its lease firom 

engaging in "practices normally considered those of a fixed base operator," including the 

provision of fuel to the general public (Cessna Lease, f 3(a)). Sterling, by contrast, operates 

charter services fi-om GMIA and is a "full-service corporate aviation firm specializing in aircraft 

management, air charter, aircraft maintenance, and acquisition support of aircraft for private 

travel." See http://www.sterlingaviation.com/AboutSterling.nws (last visited 7/29/09). If the 

County allowed Sterling to provide fuel to its "customers, business invitees and guests," as 

Cessna does, that would effectively give Sterling the right to provide third-party into-plane 

fueling services to the general public in unfair competition with FBOs. Because Cessna and 

Sterling are not similar business entities, the County cannot treat them as if they are without 

violating the GMIA Minimum Standards. 
Sterling's protestation that it does not "wish to be an FBO" (Opposition at 2) is at the 

heart of the problem: Sterling wants the benefit, but not the burden, of becoming an FBO. It is 

undisputed that Sterling passed up an opportunity to become the second FBO at GMIA. 

Moreover, Sterling does not refute the County's proof that Sterling has been fueling third-party 

aircraft in violation of its lease and the Minimum Standards for the last several years, and that 

those unauthorized fueling operations have drawn repeated complaints fi-om the FBO currently 

operating at GMIA.^ 

IV. STERLING'S REQUEST FOR "NARROWER" FUELING RIGHTS BY LEASE 

AMENDMENT COMES TOO LATE AND IS UNACCEPTABLE. 

The long-standing dispute between Sterling and the County over Sterling's fueling 

operations began shortly after Sterling acquired Scott Aviation in 2004. During the past five 

years. Sterling has insistently sought to engage in commercial fueling operations without 

meeting the requirements imposed on FBOs. After those attempts were rejected by the County -

and by the FAA in its advisory opinion - Sterling concocted this baseless "unjust economic 

discrimination" Complaint. Sterling now wants to retreat from its Complaint and instead 

negotiate with the County for what Sterling calls a "narrower" lease amendment. The County 

declines to engage in that futile exercise. 

Over two years ago, the County offered to negotiate a lease amendment that would 

acconunodate requests that Sterling had made to fuel aircraft that Sterling was "demonstrating to 

^ The Gort Affidavit in ^I3 states only that "Sterling has not fueled transient aircraft that are unrelated to 

Sterling's operations." This vague statement fails to respond to the County's assertion, since Sterling has no right to 

fuel all aircraft that are "related" to its operations. Furthermore, in H 8 of the Gort Affidavit, Sterling admits that it 

continues to fuel aircraft on or being prepared for its Part 135 certificate. If Sterling fuels those aircraft even when 

they are being used in Part 91 operations, then Sterling is acting in violation of its lease and the Minimum Standards; 

and the FAA has akeady agreed with the County's position that Sterling is not entitled to self-fuel those aircraft 

(County Exhibit 7). 
purchase" and aircraft that had been repaired at Sterling's FAA-approved repair station, provided 

such fueling operations were consistent with the terms of Sterling's lease and the Minimum 

Standards (County Exhibit 5). Accordingly, the County made clear that it would not allow 

Sterling to deliver aircraft fuel at GMIA for private Part 91 flights (id.). Sterling had no interest 

in the County's proposed compromise. Instead, over the past two years. Sterling has continued 

to insist on expansive fueling rights, including fueling private Part 91 flights; routinely engaged 

in unauthorized fueling operations; refused the opportunity to engage in such operations lawfully 

by becoming an FBO; forced the County to seek an advisory opinion from the FAA to resolve 

this long-sinunering dispute; and then, when it did not like what the FAA had to say, dragged the 

County into this unfounded Part 16 proceeding. Given this history, the County is not willing to -

and has no confidence that the parties would be able to - agree upon a lease amendment. 

Moreover, Sterling requests a lease amendment that would allow it to fuel aircraft it 

"maintains" (Reply, Tj AF13; Opposition at 2). Sterling has argued that it is obligated to maintain 

aircraft on its Part 135 certificate even when those aircraft are being used for Part 91 operations. 

The amendment Sterling proposes would therefore allow Sterling to deliver fuel to aircraft being 

used for wholly private Part 91 flights. Such an amendment would not have been acceptable to 

the County two years ago - as Sterling presumably realized at the time - and is not acceptable 

now. 

V. STERLING ACKNOWLEDGES THAT ITS EXCLUSIVE RIGHTS CLAIM IS 

DERIVATIVE OF AND DEPENDS UPON ITS UNJUST DISCRIMINATION 

CLAIM. 

Sterling's Reply confirms that the basis of Sterling's "exclusive rights" claim is that the 

County has unjustly denied Sterling the right the County gave to Cessna: to fuel its "customers, 

business invitees and guests" (Reply at 6). Therefore, if the FAA, as it should, rejects Sterling's 

unjust economic discrimination claim - because Sterling and Cessna are not similarly-situated or 

8 
because the County has a legitimate basis for treating them differently - then Sterling effectively 

concedes that the FAA must also reject Sterling's exclusive rights claim. 

Conclusion. 

For the reasons stated in this Rebuttal and in the County's Answer and Motion to 

Dismiss, the FAA should dismiss Sterling's Complaint with prejudice. 

By its^ttomeys 

)Cott t. Lewis 

Melissa C. AHfson 

ANDERSON & KREIGER LLP 

One Canal Park, Suite 200 

Cambridge, MA 02141 

T: 617.621.6560 

F: 617.621.6660 

slewis@andersonkreiger.com 

Timothy R. Karaskiewicz 

Office of the Milwaukee County Corporation Counsel 

Milwaukee County and General Mitchell 

International Airport 

901 North Ninth Sfreet, Room 303 

Milwaukee, WI 53233 

T: 414.747.5712 

F: 414.747.4525 

Timothy.Karaskiewicz(^milwcnty.com 

Counsel for Respondent 
CERTIFICATE OF SERVICE 

I hereby certify in accordance with 14 CFR § 16.15(a) that today I served the foregoing 

Respondent's Rebuttal on the following persons at the following addresses by Federal Express: 

Kent S. Jackson 

Jackson & Wade, L.L.C. 

21628 Midland Drive 

Shawnee, KS 66218 

Office of Chief Counsel, Attention: 

FAA Part 16 Airport Proceedings Docket 

AGC-610 

FEDERAL AVL\TION ADMINISTRATION 

800 Independence Avenue, SW 

Washington, DC 20591 

Dated this 20^^ day of August, 2009 

Meliss4 C. Allison 

for the Respondent 

10 
A 
BEFORE THE 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

STERLING AVIATION, LLC, 

Complainant, 

V. 

MILWAUKEE COUNTY, WISCONSIN, 

Respondent. 

Docket No. 16-09-03 

AFFIDAVIT OF PAUL BOUCHER 

I, Paul Boucher, state as follows under the pains and penalties of perjury: 

1. Since March 2007,1 have been the General Manager at the Milwaukee Citation 

Service Center (the "Service Center") owned by Cessna Aircraft Company ("Cessna") and 

located at General Mitchell International Airport ("GMIA"). 

2. My duties as General Manager include responsibility for all operations of the 

Service Center. I am very familiar with the day-to-day operations at the Service Center. 

3. The information set forth in this affidavit is based upon my personal knowledge 

and/or upon my review of the business records of Cessna. 

4. In September of 1989, Cessna and Milwaukee County entered into a lease with 

respect to the Service Center facility at GMIA. As I understand that lease, Cessna is permitted to 

store, service, repair and perfomi maintenance on aircraft; sell or lease aircraft; and dispense fuel 

to its repair and sale customers. It is my understanding that the lease does not permit Cessna to 

engage in aircraft charter or aircraft management operations at GMIA. 
5. Cessna does not perform aircraft charter or aircraft management operations at 

GMIA. 

6. CitationShares is a company that operates aircraft owned under fractional 

ownership and other similar programs. Cessna from time to time performs repair and 

maintenance work on CitationShares program aircraft at its Service Center at GMIA, just as it 

does on any Citation model aircraft whose owner presents the aircraft at GMIA and requests 

such services. 

7. Cessna does not operate aircraft charter or fractional ownership management 

sen'ices for CitationShares program aircraft, or any other aircraft, out of the Service Center 

facility at GMIA. 

8. Accordingly, Cessna's operations at GMIA are limited to the maintenance and 

repair of Cessna Citation model aircraft (including the sale of related parts, equipment and 

accessories). 

Signed this / f day of August, 2009. 

'^^^.^/^^J 

Paul Boucher 

^^E B 
B 
BEFORE THE 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

STERLING AVIATION, LLC, 

Complainant, 

V. 

MILWAUKEE COUNTY, WISCONSIN, 

Respondent. 

Docket No. 16-09-03 

SUPPLEMENTAL AFFIDAVIT OF C. BARRY BATEMAN 

I, C. Barry Bateman, state as follows under the pains and penalties of perjury: 

1. I previously submitted in tliis action an affidavit dated July 28, 2009 tliat 

describes my position and duties at the General Mitchell Intemational Airport ("GMIA"), which 

is operated by Milwaukee County (the "County"). 

2. The information set forth in this supplemental affidavit is based upon my personal 

knowledge. 

3. Scott Aviation, Inc., which at some point became Scott Air Charter, Inc. 

(collectively, "Scott Aviation"), operated at GMIA from in or about March 1984 until in or about 

March 2004. Contrary to statements made in the October 10, 2007 Affidavit of Tom Scott, 

GMIA was not aware that Scott Aviation was fueling aircraft on its Part 135 Certificate when 

those aircraft were being used for private Part 91 flights, and never gave permission to Scott 
Aviation to engage in those fueling operations. 

Signed this !j _ day of August, 2009. 

C. Barry Bafeman