UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

 

 Sterling Aviation, LLC ) 

 ) 

 COMPLAINANT ) 

 ) Docket No. 16-09-03 

 v. ) April 13, 2010 

 ) 

 Milwaukee County, Wisconsin ) 

 ) 

 RESPONDENT )

DIRECTOR’S DETERMINATION

I. INTRODUCTION 

This matter is before the Federal Aviation Administration (FAA) based on a formal complaint 

filed in accordance with the Rules of Practice for Federally-Assisted Airport Enforcement 

Proceedings, Title 14 Code of Federal Regulations (CFR) Part 16.1

Sterling Aviation, LLC (Complainant) filed a formal Complaint pursuant to 14 CFR Part 16 

against Milwaukee County, Wisconsin (County or Respondent), sponsor and operator of the 

General Mitchell International Airport (Airport or GMIA). The Complainant alleges the 

Respondent is engaged in disparate treatment of similarly situated aeronautical service providers 

with regard to fueling practices. Specifically, the Complainant alleges the City is in violation of 

49 U.S.C. § 47107(a)(1) and Grant Assurance 22, Economic Nondiscrimination as well as 49 

U.S.C. § 40103(e) and Grant Assurance 23, Exclusive Rights. 

With respect to the allegations presented in this Complaint, under the specific circumstances at 

the Airport as discussed below and based on the evidence of record in this proceeding, the FAA 

finds the Airport is not currently in violation of its Federal obligations. The FAA’s decision in 

this matter is based on applicable Federal law and FAA policy, review of the pleadings and 

supporting documentation submitted by the parties, reviewed by the FAA, which comprises the 

Administrative Record reflected in the attached FAA Exhibit 1. 

II. PARTIES 

In March of 2004, Sterling Aviation Holdings acquired the stock of Scott Aviation, a company 

based at GMIA since 1984. [FAA Exhibit 1, Item 1, ¶6 and 7] The business’ name was changed 

 

1

 Enforcement procedures regarding airport compliance matters may be found at FAA Rules of Practice for 

Federally Assisted Airport Enforcement Proceedings (14 CFR Part 16). These enforcement procedures were 

published in the Federal Register (61 FR 53998, October 16, 1996) and became effective on December 16, 1996. 
2 

to Sterling Aviation and later converted to a limited liability corporation. [FAA Exhibit 1, Item 

1, ¶7] Sterling Aviation, LLC is an FAA approved Part 145 Repair Station2

 for airframe, 

instrument, and radio repairs. [FAA Exhibit 1, Item 1, ¶1] The Complainant is also a Part 135 

charter operator3

 with 13 aircraft listed on its certificate. [FAA Exhibit 1, Item 1, ¶1] 

General Mitchell International Airport (Airport) is a public-use airport owned and operated by 

Milwaukee County, Wisconsin. The Airport, five nautical miles south of Milwaukee, is 

classified as a medium-hub commercial service airport with 110 based aircraft and 196,045 

annual operations. The Airport has five runways and an air traffic control tower. [FAA Exhibit 

1, Item 12] The planning and development of the Airport has been financed, in part, with funds 

provided by the FAA under the Airport Improvement Program (AIP), authorized by the Airport 

and Airway Improvement Act of 1982, as amended, 49 U.S.C. § 47101, et seq. Since 1982, the 

County has accepted $167,812,061 in Federal AIP grants for GMIA. [FAA Exhibit 1, Item 11] 

III. BACKGROUND AND PROCEDURAL HISTORY 

Factual Background

In 1983, Tom Scott founded Scott Aviation, formerly known as (f/k/a) Scott Air Charter; this 

company moves onto GMIA on or about June 1, 1984. [FAA Exhibit 1, Item 1, ¶6] 

On September 11, 1989, Milwaukee County executes a lease agreement with The Cessna 

Aircraft Company (Cessna). The initial term is approximately five years4 and automatically 

renews, subject to an adjustment of the lessee’s rental payments, for seven additional consecutive 

terms of five years. [FAA Exhibit 1, Item 1, exhibit A] 

On September 1, 1993, the FAA certifies Scott Air Charter as a Part 145 Aircraft Repair Station. 

[FAA Exhibit 1, Item 1, ¶6] 

On April 17, 1997, Milwaukee County executes a lease agreement with Scott Air Charter, Inc. 

The lease provides for an initial ten-year term and allows the lessee to renew, on the same terms 

and conditions, for two additional five-year periods. [FAA Exhibit 1, Item 1, exhibit C] 

In October 2003, the Respondent amends its Schedule of Minimum Standards for Commercial 

Aeronautical Activities on Milwaukee County’s Airports. [FAA Exhibit 1, Item 1, exhibit B] 

The Respondent also executes a lease amendment with Scott Air Charter “for the rights to 

perform airframe and power plant overhauls, lot sections, inspections and repair services on 

aircraft engines” at the Airport. [FAA Exhibit 1, Item 17, exhibit C] 

 

2

 The term “Part 145” refers to 14 CFR Part 145, Repair Stations. This regulation prescribes the FAA’s 

requirements for issuing repair station certificates and associated ratings. 3

 The term “Part 135” refers to 14 CFR Part 135, Operating Requirements: Commuter and On Demand Operations 

and Rules Governing Persons on Board Such Aircraft. 14 CFR § 135.1 requires entities conducting commuter and 

on-demand operations to hold an Air Carrier Certificate or Operating Certificate as prescribed by 14 CFR Part 119. 4

 Cessna’s lease describes its initial term as running “from the date the agreement is executed until the expiration of 

five (5) years from the date a City of Milwaukee occupancy permit is issued for the proposed Cessna hangar facility, 

or until December 31, 1995, whichever date is earlier.” [FAA Exhibit 1, Item 1, exhibit A, p. 2] 
3 

In March 2004, Scott Aviation is sold to Sterling Aviation Holdings.5 [FAA Exhibit 1, Item 1, 

exhibit D, ¶2] As part of this transaction, Sterling assumes two hangar lease agreements from 

Scott Aviation. [FAA Exhibit 1, Item 7, exhibit B, ¶4] Sterling Aviation then enters into 

agreements with Milwaukee County for the operation of commercial aeronautical activities at 

GMIA. [FAA Exhibit 1, Item 5, AF2] 

At a meeting held on September 13, 2005, representatives from GMIA and Sterling Aviation 

discuss Sterling’s ability to dispense fuel as specified under its lease with regard to its 

commercial aeronautical operating permits6

 and the Airport’s Minimum Standards. [FAA 

Exhibit 1, Item 7, exhibit F] A follow up letter from the Respondent to the Complainant 

summarizes the Respondent’s views as follows: 

“At our meeting, we clarified Sterling’s authority to dispense fuel under these 

permits and the Schedule of Minimum Standards for Commercial Aeronautical 

Activities on Milwaukee County’s Airports (Minimum Standards). 

1. Under its aircraft charter authority, Sterling is authorized to fuel aircraft listed 

on its FAA charter certificate when those aircraft are being used for FAR Part 

135 public charter purposes. 

2. Under its aircraft management authority, Sterling is not authorized to fuel 

aircraft being managed by Sterling. 

3. Aircraft, even though they may be on the Sterling charter certificate, (FAR Part 

91 operation) may not be fueled by Sterling when they will be operated by or for 

the transportation of the aircraft owner. 

4. Aircraft that Sterling charters from other operators to augment its charter 

operation may not be fueled by Sterling.” [FAA Exhibit 1, Item 7, exhibit F, p. 1]

In March 2006, GMIA initiates a compliance audit of Sterling Aviation. The audit finds that 

Sterling Aviation appears to be fueling Part 91 flights in violation of its lease, handling aircraft 

that are not owned by Sterling or listed on its Part 135 Certificate, and offering commercial 

fueling services in conjunction with management of aircraft. [FAA Exhibit 1, Item 5, AF12 and 

FAA Exhibit 1, Item 7, exhibit B, ¶11] On September 22, 2006, GMIA writes a letter to Sterling 

Aviation expressing these concerns and requesting more specific information needed to begin a 

formal compliance audit. [FAA Exhibit 1, Item 7, exhibit B ¶12 and FAA Exhibit 1, Item 7, 

exhibit C] Sterling Aviation never responds to this request. [FAA Exhibit 1, Item 7, exhibit B 

¶13] 

 

5

 The Record is unclear as to when this transaction occurred. While an affidavit provided by Tom Scott states he 

sold his business in March of 2004, the Respondent executed a lease amendment with Scott Air Charter dated March 

5, 2004. [FAA Exhibit 1, Item 1, exhibit D, ¶ 2 and FAA Exhibit 1, Item 17, exhibit D] This lease amendment 

authorized Scott Air Charter to perform aircraft management services at GMIA. However, the amendment 

specifically states, “Permittee agrees that it will not sell, convey, transfer, pledge, or assign this Agreement of [sic] 

any part hereof or any rights created hereby. Any attempted sale, conveyance, transfer, pledge or assignment of the 

Agreement, or any rights of Permittee hereunder, shall be null and void, and shall be a material breach hereof and 

this Agreement shall immediately and automatically terminate at the time Permittee sells, conveys, transfers, pledges 

or assigns this Agreement.” [FAA Exhibit 1, Item 17, exhibit D, ¶ 7] 

6

 At this time, Sterling holds Commercial Operating Permits to perform aircraft charter operations, aircraft 

management services, and power plant and airframe repair services. [FAA Exhibit 1, Item 7, exhibit F, p. 1] 
4 

On January 26, 2007, Sterling Aviation notifies GMIA of its decision to exercise the first five 

year lease renewal option. This extends Sterling’s lease through March 31, 2012. [FAA Exhibit 

1, Item 17, exhibit E] 

During 2007, Sterling Aviation and GMIA meet and exchange correspondence discussing 

Sterling’s fueling rights. [FAA Exhibit 1, Item 5, ¶AF14; FAA Exhibit 1, Item 7, exhibits G, H, 

and I; and FAA Exhibit 1, Item 18, exhibits A and B] An August 1, 2007 letter from Sterling to 

GMIA states: 

“Sterling Aviation seeks to clarify the fuel rights afforded to us by our land lease 

with the County. It is our desire to perform, and confirm our rights to fuel: 

1. Only aircraft listed on our Air Carrier Certificate in which we have either an 

operating agreement or a lease, regardless of whether those flights are conducted 

under FAR 91 or FAR Part 135 regulations and; 

2. Aircraft of other Air Carriers with whom we have contracted with to transport 

our clients under FAR Part 135 regulations; and 

3. Aircraft we are demonstrating to purchase or which have been recently 

purchased by either ourselves or one of our clients; and which are or will be 

going through the FAA process of being listed on our Air Carrier Certificate; and 

4. Aircraft in which our FAA approved repair station is performing maintenance. 

(The same rights afforded Cessna’s Citation’s Service Center in their land lease.) 

It is Sterling Aviation’s position that our existing land lease with the County 

allows for all the above fueling rights and we are in possession of the appropriate 

County issued permits to conduct commercial operations at Mitchell Field.” 

[FAA Exhibit 1, Item 18, exhibit B] 

In response, GMIA offers to amend Sterling’s lease to permit Sterling to fuel aircraft it is 

demonstrating to purchase and aircraft that had been repaired at Sterling’s repair station, as long 

as Sterling’s proposal does not violate the terms of its lease or the Minimum Standards. [FAA 

Exhibit 1, Item 5, AF13; FAA Exhibit 1, Item 7, exhibit G, pp 2-3; and FAA Exhibit 1, Item 7, 

exhibit H, p. 2] 

On October 10, 2007, the Complainant, through its counsel, writes to the Respondent stating it 

has the right to fuel the following: 

“1. Aircraft listed on Sterling’s Air Carrier Certificate in which it has either an 

operating agreement or a lease, regardless of whether those flights are conducted 

under FAA Part 91 or FAA Part 135 Regulations; 

2. Aircraft of other Air Carriers with whom it has contracted to transport its 

clients under FAA Part 135 Regulations; 
5 

3. Aircraft that it is demonstrating to purchase or which have been recently 

purchased by either Sterling or one of its clients; and which are or will be going 

through the FAA process of being listed on Sterling’s Air Carrier Certificate; 

and...” [FAA Exhibit 1, Item 7, exhibit I, p. 1] 

In June of 2008 GMIA completes a competitive request for proposal process to select a second 

Fixed Base Operator.7

 Sterling Aviation does not submit a proposal. [FAA Exhibit 1, Item 5, 

¶AF18 and FAA Exhibit 1, Item 7, exhibit B, ¶19] 

In August 2008, the Respondent seeks an advisory opinion from the FAA regarding the 

Complainant’s right to provide into-plane fueling services. [FAA Exhibit 1, Item 5, ¶AF15 and 

FAA Exhibit 1, Item 7, exhibit D] In response, the FAA’s Airports Division Manager for the 

Great Lakes Region provides general guidance on self-fueling and encloses a copy of a letter the 

FAA sent to a Part 135 operator discussing its self-fueling rights in 2003 (AmAv letter). [FAA 

Exhibit 1, Item 7, exhibit J] 

On February 15, 2009, the Complainant’s counsel met with the Respondent’s counsel in an 

attempt to resolve the issue. [FAA Exhibit 1, Item 1, ¶15 and FAA Exhibit 1, Item 5, ¶15] 

On March 30, 2009, the Complainant requests the FAA’s opinion on issues now raised in this 

formal Complaint. [FAA Exhibit 1, Item 14] The FAA’s Airports Division Manager for the 

Great Lakes Region responds with information regarding the grant assurances and the Part 16 

complaint process. A copy of the AmAv letter is also enclosed. [FAA Exhibit 1, Item 15] 

Procedural History

On June 8, 2009, FAA received the Complaint. [FAA Exhibit 1, Item 1] 

On June 19, 2009, FAA docketed Sterling Aviation, LLC v. Milwaukee County, Wisconsin. 

[FAA Exhibit 1, Item 2] 

On June 30, 2009, the Respondent requested additional time to file its answer and advised that 

Complainant had no objection. [FAA Exhibit 1, Item 4] 

On July 31, 2009, the Respondent filed an Answer, Motion to Dismiss, and Memorandum in 

Support of Respondent’s Motion to Dismiss. [FAA Exhibit 1, Items 5, 6, and 7] 

On August 7, 2009, the Complainant filed a Reply and an Answer to Respondent’s Motion to 

Dismiss. [FAA Exhibit 1, Items 8 and 9] 

On August 20, 2009, the Respondent filed a Rebuttal. [FAA Exhibit 1, Item 10] 

On November 12, 2009, the FAA requested additional information from both parties and 

extended the due date of the Director’s Determination to on or before February 12, 2010. [FAA 

Exhibit 1, Item 13] 

 

7

 A fixed-base operator (FBO) is an individual or firm operating at an airport and providing general aircraft services 

such as maintenance, storage, and ground, and flight instruction. [FAA Order 5190.6B, Appendix Z] 
6 

On December 8, 2009, the Respondent submits additional information requested by the FAA. 

[FAA Exhibit 1, Item 18] 

On December 9, 2009, the Complainant submits additional information requested by the FAA. 

[FAA Exhibit 1, Item 17] 

On February 12, 2010, the FAA extended the due date of the Director’s Determination to on or 

before March 12, 2010. [FAA Exhibit 1, Item 21] 

On March 10, 2010, the FAA extended the due date of the Director’s Determination to on or 

before April 16, 2010. [FAA Exhibit 1, Item 22] 

IV. ISSUES 

Upon review of the allegations and the relevant airport-specific circumstances, summarized 

above, the FAA has determined that the following issues require analysis in order to provide a 

complete review of the County’s compliance with applicable Federal law and policy: 

• Whether the Respondent’s refusal to grant the Complainant the same fueling rights as 

those purportedly granted to another aeronautical service provider constitutes unjust 

discrimination in violation of 49 U.S.C. § 47107(a)(1) and Grant Assurance 22, 

Economic Nondiscrimination. 

• Whether the Respondent has granted an Exclusive Right to The Cessna Aircraft 

Company by refusing to recognize the Complainant as a Specialized Aircraft Repair 

Service operator in violation of 49 U.S.C. § 47107(a)(4) and Grant Assurance 23, 

Exclusive Rights. 

• Whether the Respondent has granted an Exclusive Right to The Cessna Aircraft 

Company by refusing to allow the Complainant the right to fuel its customers, business 

invitees, and guests in violation of 49 U.S.C. § 47107(a)(4) and Grant Assurance 23, 

Exclusive Rights. 

V. APPLICABLE LAW AND POLICY 

The federal role in civil aviation has been augmented by various legislative actions that authorize 

programs for providing federal funds and other assistance to local communities for the 

development of airport facilities. In each such program, the airport sponsor assumes certain 

obligations, either by contract or by restrictive covenants in property deeds and conveyance 

instruments, to maintain and operate its airport facilities safely and efficiently and in accordance 

with specified conditions. Commitments assumed by airport sponsors in property conveyance or 

grant agreements are important factors in maintaining a high degree of safety and efficiency in 

airport design, construction, operation and maintenance, as well as ensuring the public fair and 

reasonable access to the airport. 
7 

The following is a discussion pertaining to the Airport Improvement Program, Airport Sponsor 

Assurances, the FAA Airport Compliance Program, enforcement of Airport Sponsor Assurances, 

and the Complaint and Appeal Process. 

The Airport Improvement Program 

Title 49 U.S.C. § 47101, et seq., provides for federal airport financial assistance for the 

development of public-use airports under the Airport Improvement Program (AIP) established by 

the Airport and Airway Improvement Act of 1982, as amended. Title 49 U.S.C. § 47107, et seq., 

sets forth assurances to which an airport sponsor agrees as a condition of receiving federal 

financial assistance. Upon acceptance of an AIP grant, the assurances become a binding 

contractual obligation between the airport sponsor and the federal government. The assurances 

made by airport sponsors in AIP grant agreements are important factors in maintaining a viable 

national airport system. 

Airport Sponsor Assurances

As a condition precedent to providing airport development assistance under the Airport 

Improvement Program, 49 U.S.C. § 47107, et seq., the Secretary of Transportation and, by 

extension, the FAA must receive certain assurances from the airport sponsor. Title 49 U.S.C. 

§ 47107(a) sets forth the statutory sponsorship requirements to which an airport sponsor 

receiving federal financial assistance must agree. 

The FAA has a statutory mandate to ensure that airport owners comply with these sponsor 

assurances.8

 FAA Order 5190.6B, Airport Compliance Requirements (FAA Order 5190.6B), 

issued on September 30, 2009, provides the policies and procedures to be followed by the FAA 

in carrying out its legislatively mandated functions related to compliance with federal obligations 

of airport sponsors. The FAA considers it inappropriate to provide federal assistance for 

improvements to airports where the benefits of such improvements will not be fully realized due 

to inherent restrictions on aeronautical activities. 

Two federal grant assurances apply to the circumstances set forth in this Complaint: (1) Grant 

Assurance 22, Economic Nondiscrimination and (2) Grant Assurance 23, Exclusive Rights. 

Assurance 22, Economic Nondiscrimination

The owner of any airport developed with federal grant assistance is required to operate the 

airport for the use and benefit of the public and to make it available to all types, kinds, and 

classes of aeronautical activity on fair and reasonable terms, and without unjust discrimination. 

Federal Grant Assurance 22, Economic Nondiscrimination deals with both the reasonableness of 

airport access and the prohibition of adopting unjustly discriminatory conditions as a potential 

 

8

 See, e.g., the Federal Aviation Act of 1958, as amended and recodified, Title 49 U.S.C. §§ 40101, 40113, 40114, 

46101, 46104, 46105, 46106, 46110; and the Airport and Airway Improvement Act of 1982, as amended and 

recodified, Title 49 U.S.C. §§ 47105(d), 47106(d), 47107(k), 47107(l), 47111(d), 47122. 
8 

for limiting access. Grant Assurance 22 of the prescribed sponsor assurances implements the 

provisions of 49 U.S.C. § 47107(a)(1) through (6), and requires, in pertinent part: 

“...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. 

[(a)] 

b. In any agreement, contract, lease, or other arrangement under which a right 

or privilege at the airport is granted to any person, firm, or corporation to 

conduct or to engage in any aeronautical activity for furnishing services to the 

public at the airport, the sponsor will insert and enforce provisions requiring the 

contractor to- 

(1) furnish said services on a reasonable, and not unjustly 

discriminatory, basis to all users thereof, and 

(2) charge reasonable, and not unjustly discriminatory, prices for each 

unit or service, provided that the contractor may be allowed to make 

reasonable and nondiscriminatory discounts, rebates, or other similar 

types of price reductions to volume purchasers. 

c. Each fixed-base operator at the airport shall be subject to the same rates, fees, 

rentals, and other charges as are uniformly applicable to all other fixed-base operators 

making the same or similar uses of such airport and utilizing the same or similar 

facilities. 

d. Each air carrier using such airport shall have the right to service itself or to use any 

fixed-base operator that is authorized or permitted by the airport to serve any air carrier 

at such airport. 

f. It will not exercise or grant any right or privilege which operates to prevent any 

person, firm, or corporation operating aircraft on the airport from performing any 

services on its own aircraft with its own employees [including, but not limited to 

maintenance, repair, and fueling] that it may choose to perform. 

g. In the event the sponsor itself exercise any of the rights and privileges referred to in 

this assurance, the services involved will be provided on the same conditions as would 

apply to the furnishing of such services by commercial aeronautical service providers 

authorized by the sponsor under these 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. 

i. 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.” 
9 

Subsection (h) qualifies subsection (a), and subsection (i) represents an exception to subsection 

(a) to permit the sponsor to exercise control of the airport sufficient to preclude unsafe and 

inefficient conditions that would be detrimental to the civil aviation needs of the public. 

In all cases involving restrictions on airport use imposed by airport owners for safety and 

efficiency reasons, the FAA will make the final determination on the reasonableness of such 

restrictions when those restrictions deny or limit access to, or use of, the airport. [See FAA 

Order 5190.6B, ¶14.3.] 

FAA Order 5190.6B describes the responsibilities under Assurance 22 assumed by the owners or 

sponsor of public use airports developed with federal assistance. Among these is the obligation 

to treat in a uniform manner those users making the same or similar use of the airport and to 

make all airport facilities and services available on reasonable terms without unjust 

discrimination. [See FAA Order 5190.6B, Chapter 9] 

The owner of an airport developed with federal assistance is required to operate the airport for 

the use and benefit of the public and to make it available to all types, kinds, and classes of 

aeronautical activity on reasonable terms, and without unjust discrimination. [See FAA Order 

5190.6B, Sec. ¶9.1.(a)] 

Assurance 23, Exclusive Rights

Title 49 U.S.C. § 40103(e), provides that “[a] person does not have an exclusive right to use an 

air navigation facility on which Government money has been expended.” 

Title 49 U.S.C. § 47107(a)(4), similarly provides that “a person providing, or intending to 

provide, aeronautical services to the public will not be given an exclusive right to use the 

airport...” 

Grant Assurance 23, Exclusive Rights, of the prescribed sponsor assurances implements both 

statutory provisions requiring, in pertinent part, that the sponsor of a federally obligated airport: 

“...will permit no exclusive right for the use of the airport by any person 

providing, or intending to provide, aeronautical services to the public...and that it 

will terminate any exclusive right to conduct an aeronautical activity now existing 

at such an airport before the grant of any assistance under Title 49, United States 

Code.” 

An exclusive right is defined as a power, privilege, or other right excluding or debarring another 

from enjoying or exercising a like power, privilege, or right. An exclusive right can be conferred 

either by express agreement, by the imposition of unreasonable standards or requirements, or by 

any other means. Such a right conferred on one or more parties, but excluding others from 

enjoying or exercising a similar right or rights, would be an exclusive right. [See FAA Advisory 

Circular 5190-6 Exclusive Rights at Federally Obligated Airports, January 4, 2007] 
10 

Therefore, it is FAA’s policy that the sponsor of a federally obligated airport will permit no 

exclusive right for the use of the airport by any person providing, or intending to provide, 

aeronautical services to the public and will not, either directly or indirectly, grant or permit any 

person, firm, or corporation, the exclusive right at the airport to conduct any aeronautical 

activities. FAA Order 5190.6B clarifies the applicability, extent, and duration of the prohibition 

against exclusive rights under 49 U.S.C. § 40103(e) with regard to airports developed with FAAadministered grant assistance and Federal property conveyances. 

The exclusive rights prohibition remains in effect as long as the airport is operated as an airport. 

FAA takes the position that the grant of an exclusive right for the conduct of any aeronautical 

activity on such airports is regarded as contrary to the requirements of the applicable laws, 

whether such exclusive right results from an express agreement, from the imposition of 

unreasonable standards or requirements, or by any other means. 

The FAA Airport Compliance Program 

The FAA discharges its responsibilities for ensuring airport owners’ compliance with their 

federal obligations through its Airport Compliance Program. The FAA’s airport compliance 

efforts are based on the contractual obligations an airport owner accepts when receiving federal 

grant funds or the transfer of federal property for airport purposes. These obligations are 

incorporated in grant agreements and instruments of conveyance in order to protect the public’s 

interest in civil aviation and to ensure compliance with federal laws. 

The FAA Airport Compliance Program is designed to ensure the availability of a national system 

of safe and properly maintained public-use airports operated in a manner consistent with the 

airport owners’ federal obligations and the public’s investment in civil aviation. 

The Airport Compliance Program does not control or direct the operation of airports. Rather, it 

monitors the administration of the valuable rights pledged by airport sponsors to the people of 

the United States in exchange for monetary grants and donations of federal property to ensure 

that the public interest is being served. FAA Order 5190.6B sets forth policies and procedures 

for the FAA Airport Compliance Program. FAA Order 5190.6B is not regulatory and is not 

controlling with regard to airport sponsor conduct. Rather, it establishes the policies and 

procedures to be followed by FAA personnel in carrying out the FAA’s responsibilities for 

ensuring airport compliance. It provides basic guidance for FAA personnel in interpreting and 

administering the various continuing commitments made to the United States by airport owners 

as a condition of receiving a grant of federal funds or the conveyance of federal property for 

airport purposes. FAA Order 5190.6B analyzes the various obligations set forth in the standard 

airport sponsor assurances, addresses the nature of those assurances, addresses the application of 

those assurances in the operation of public-use airports, and facilitates interpretation of the 

assurances by FAA personnel. 

The FAA Compliance program is designed to achieve voluntary compliance with federal 

obligations accepted by owners and/or operators of public-use airports developed with FAAadministered assistance. Therefore, in addressing allegations of noncompliance, the FAA will 

make a determination as to whether an airport sponsor is currently in compliance with the 
11 

applicable federal obligations. Consequently, the FAA will consider the successful action by the 

airport to cure any alleged or potential past violation of applicable federal obligation to be 

grounds for dismissal of such allegations. [See e.g. Wilson Air Center v. Memphis and Shelby 

County Airport Authority, FAA Docket No. 16-99-10 (August 30, 2001) (Final Decision and 

Order) (Wilson)] 

FAA Order 5190.6B outlines the standard for compliance, stating, “A sponsor meets 

commitments when: (1). The federal obligations are fully understood; (2). A program (e.g., 

preventive maintenance, leasing policies, operating regulations, etc.) is in place that the FAA 

deems adequate to carry out the sponsor’s commitments; (3). The sponsor satisfactorily 

demonstrates that such a program is being carried out; and (4). Past compliance issues have been 

addressed.” [See FAA Order 5190.6B, ¶2.8.(b.)] 

Enforcement of Airport Sponsor Assurances 

The Federal Aviation Act of 1958, as amended (FAAct), 49 U.S.C. § 40101, et seq., assigns the 

FAA Administrator broad responsibilities for the regulation of air commerce in the interests of 

safety, security, and development of civil aeronautics. The federal role in encouraging and 

developing civil aviation has been augmented by various legislative actions, which authorize 

programs for providing funds and other assistance to local communities for the development of 

airport facilities. In each such program, the airport owner or sponsor assumes certain 

obligations, either by contract or by restrictive covenants in property deeds and conveyance 

instruments, to maintain and operate its airport facilities safely, efficiently, and in accordance 

with specified conditions. Commitments assumed by airport owners or sponsors in property 

conveyance or grant agreements are important factors in maintaining a high degree of safety and 

efficiency in airport design, construction, operation and maintenance, as well as ensuring the 

public reasonable access to the airport. Pursuant to 49 U.S.C. § 47122, the FAA has a statutory 

mandate to ensure that airport owners comply with their federal grant assurances. 

The Complaint and Appeal Process 

Pursuant to 14 CFR § 16.23, a person directly and substantially affected by any alleged 

noncompliance may file a complaint with the FAA. The complainant(s) shall provide a concise 

but complete statement of the facts relied upon to substantiate each allegation. The complaint(s) 

shall also describe how the complainant(s) directly and substantially has/have been affected by 

the things done or omitted by the respondent(s). [See, 14 CFR § 16.23(b)(3-4)] 

If, based on the pleadings, there appears to be a reasonable basis for further investigation, the 

FAA will investigate the subject matter of the Complaint. In rendering its initial determination, 

the FAA may rely entirely on the Complaint and the responsive pleadings provided. Each party 

shall file documents that it considers sufficient to present all relevant facts and arguments 

necessary for the FAA to determine whether the sponsor is in compliance. [See, 14 CFR 

§ 16.29] 

The proponent of a motion, request, or order has the burden of proof. A party who has asserted 

an affirmative defense has the burden of proving the affirmative defense. This standard burden 
12 

of proof is consistent with the Administrative Procedures Act (APA) and federal case law. The 

APA provision [See, 5 U.S.C. § 556(d)] states, “(e)xcept as otherwise provided by statute, the 

proponent of a rule or order has the burden of proof.” [See also, Director, Office Worker’s 

Compensation Programs, Department of Labor v. Greenwich Collieries, 512 US 267, 272 (1994) 

and Air Canada et al. v. Department of Transportation, 148 F3d 1142, 1155 (DC Cir, 1998)] 

Title 14 CFR § 16.229(b) is consistent with 14 CFR §16.23, which requires the Complainant to 

submit all documents then available to support his or her complaint. Similarly, 14 CFR § 16.29 

states that, “(e)ach party shall file documents that it considers sufficient to present all relevant 

facts and arguments necessary for the FAA to determine whether the sponsor is in compliance.” 

Title 14 CFR § 16.31(b), in pertinent parts, provides that “(t)he Director's determination will set 

forth a concise explanation of the factual and legal basis for the Director's determination on each 

claim made by the complainant.” In accordance with 14 CFR § 16.33(b) and (e), upon issuance 

of a Director’s determination, “a party adversely affected by the Director's determination may 

file an appeal with the Associate Administrator within 30 days after the date of service of the 

initial determination;” however, “(i)f no appeal is filed within the time period specified in 

paragraph (b) of this section, the Director's determination becomes the final decision and order of 

the FAA without further action. A Director's determination that becomes final because there is 

no administrative appeal is not judicially reviewable.” 

Title 14 CFR § 16.247(a) defines procedural recourse for judicial review of the Associate 

Administrator’s final decision and order, as provided in 49 U.S.C. § 46110 or section 519(b)(4) 

of the Airport and Airway Improvement Act of 1982, as amended, (AAIA), 49 U.S.C. 

§ 47106(d) and 47111(d). 

VI. ANALYSIS AND DISCUSSION 

Prior to the filing of this Complaint, both parties sought the FAA’s informal guidance on matters 

related to self-fueling. Below is a discussion of those exchanges. 

Review of FAA’s Informal Guidance to Both Parties 

In August of 2008, the Respondent requested informal guidance regarding its responsibilities 

under Grant Assurance 22(d) and (f). [FAA Exhibit 1, Item 7, exhibit D] The FAA’s Manager 

of the Airports Division for the Great Lakes Region responded by letter advising of general 

guidance on self-fueling. [FAA Exhibit 1, Item 7, exhibit J] This letter specifically states that 

Grant Assurance 22(d) “allows an air carrier to service itself or to use any fixed-base operator 

that is authorized or permitted by the airport to service an air carrier.” The letter notes that Grant 

Assurance 22(f) “prohibits an airport from restricting a corporation’s right to perform services on 

its own aircraft but there must be evidence that there is adequate ownership interest in the 

aircraft to qualify as ‘own aircraft,’ for the purposes of this Assurance.” To further explain how 

self-fueling rights may be practiced by Part 135 operators, the FAA enclosed a copy of a letter 

sent to AmAv, Inc. (AmAv letter), in 2003. This letter notes that when a corporation lacks 

adequate ownership interest in an aircraft, that particular aircraft does not qualify as the 

corporation’s “own” aircraft for the purposes of Grant Assurance 22(f). The Director reaffirms 

this guidance. 
13 

In March of 2009, the Complainant requested the FAA provide informal guidance on issues 

similar to the questions now before the Director. [FAA Exhibit 1, Item 14] The FAA’s Manager 

of the Airports Division for the Great Lakes Region responded by letter. [FAA Exhibit 1, Item 

15] In addition to discussing the obligations contained in Grant Assurance 22(d) and (f), as was 

explained to the Respondent, the letter stated: 

“For an airport sponsor to offer a tenant the right to expand its self-fueling 

activity to aircraft that it does not own, lease, rent, or operate for its exclusive 

use, would be outside the definition and protection of Assurance 22. This could 

lead to allegations that an airport sponsor was acting in an unjustly 

discriminatory manner towards its tenants that have the right to sell fuel 

commercially.” [FAA Exhibit 1, Item 15]

The FAA also enclosed a copy of the AmAv letter to further explain how self-fueling rights 

apply to Part 135 operators. The Director reaffirms this guidance. 

It is important to clarify that issues raised in this Complaint do not pertain to the Complainant’s 

right to self-fuel under Grant Assurance 22(d) or (f). Grant Assurance 22(d) protects an air 

carrier’s right to service its own aircraft. Grant Assurance 22(f) explicitly protects the rights of 

individuals and corporations to perform services, such as fueling, on their own aircraft with their 

own employees. The Director notes this distinction due to previous documented requests for 

informal guidance from both parties regarding self-fueling. 

Issues Identified for Analysis and Discussion 

Issue 1: Whether the Respondent’s refusal to grant the Complainant the same fueling rights as 

those purportedly granted to a similarly situated aeronautical service provider constitutes unjust 

discrimination in violation of 49 U.S.C. § 47107(a)(1) and Grant Assurance 22, Economic 

Nondiscrimination.

As noted above and previously explained to the Complainant, when an airport sponsor allows a 

tenant to expand its self-fueling activities to aircraft it does not own, lease, rent or operate for its 

exclusive use, it offers a privilege outside its obligations contained in Grant Assurance 22(d) and 

(f). The extant Complaint thus centers around a privilege negotiated and articulated in one lease 

between the Respondent and an aeronautical service provider at the Airport. 

In 1989, GMIA entered into a lease with Cessna. [FAA Exhibit 1, Item 1, exhibit A] This lease 

allows Cessna to fuel its “customers, business invitees, and guests only”. [FAA Exhibit 1, Item 

1, exhibit A, p. 9] Eight years later, in 1997, Scott Air Charter, Inc. entered into a lease which 

limits its fueling rights to self-fueling. [FAA Exhibit 1, Item 1, exhibit C, p. 6] In March of 

2004, the Complainant acquired Scott Air Charter’s stock and assumed the 1997 lease. [FAA 

Exhibit 1, Item 1, ¶6] 
14 

Given the time which has elapsed since the Complainant’s lease was executed and renewed9 – 12 

years – the Director relies on a principle involving a rent disparity issue from Penobscot Air 

Services v. Knox County, FAA Docket No. 16-97-04 (September 25, 1997) (Director's 

Determination)( Penobscot DD): 

“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. The FAA does not consider that Congress 

intended grant assurances and the FAA compliance process to provide a device 

by which a commercial aeronautical tenant can abrogate an otherwise valid 

commercial lease with a sponsor because the operations under the lease are less 

profitable than the tenant anticipated. Such use of the grant assurances would be 

especially inappropriate in a case like this, where the complainant did not 

negotiate directly with the sponsor but elected to assume a prior tenant’s lease 

through acquisition.” [Penobscot DD, at page 24, citing to Sky East Services, 

Inc. and Hampton Air Transport System. Inc. v. Suffolk County, New York, FAA 

Docket Nos. 13-88-6 and 13-89-1] 

Aerodynamics of Reading, Inc. v Reading Regional Airport Authority, FAA Docket No. 16-00-

03, (July 23, 2001) (Final Decision and Order) at 16, (Aerodynamics FAD) states that it is 

“incumbent upon the Complainant to prove its allegations of unjust discrimination by providing 

evidence that similar terms and conditions were requested and were subsequently denied without 

adequate justification.” 

In this instant complaint, the Complainant provides no evidence to support that it requested 

fueling rights similar to those granted to Cessna when the Complainant acquired the Scott lease 

in 2004. The Complainant provides no evidence to support it requested additional fueling rights, 

similar to Cessna, when it exercised a five-year lease renewal option in 2007. Agreeing to 

contract terms with the Respondent, and then complaining later that the contract terms are not 

similar to Cessna’s, does not mean the Complainant has been treated in an unjustly 

discriminatory manner. The Director has routinely found in favor of the airport sponsor in 

complaints where an aeronautical tenant has negotiated a rental agreement that requires a 

particular payment and rate schedule, commences doing business and earning profits, and then 

complains that the deal was unfair. Under this type of scenario the Director has rejected buyer’s 

remorse as a rationale or justification to support an argument that terms previously negotiated 

and accepted should be now altered. Absent any evidence to demonstrate that the Complainant 

objected to the terms of the lease or was denied access to pertinent information during 

negotiations, the Director concludes that there can be no unjust discrimination. [See Adventure 

Aviation v City of Las Cruces, New Mexico, FAA Docket No. 16-01-14, (August 7, 2002) 

(Director’s Determination) at 13 (Adventure) and 41 North 73 West, Inc. dba Avitat Westchester 

 

9

 Scott Air Charter’s lease expired on March 31, 2007. [FAA Exhibit 1, Item 1, exhibit C] Sterling Aviation 

exercised an option to renew the lease for an additional five-year term. Sterling’s notice exercising its renewal 

option requested changes to Section 12, “Eminent Domain” and to Exhibit B. [FAA Exhibit 1, Item 1, exhibit C and 

FAA Exhibit 1, Item 17, exhibit E] 
15 

v Westchester County, New York, FAA Docket No. 16-07-13, (June 12, 2008) (Director’s 

Determination) at 25 (Avitat)] 

The Complainant describes its history and Scott’s history of fueling all aircraft listed on its Part 

135 certificate despite whether they were flown for Part 135 or Part 91 operations. [FAA Exhibit 

1, Item 1, ¶6 and ¶14; FAA Exhibit 1, Item 1, exhibit 4, ¶2; FAA Exhibit 1, Item 8, exhibit A, ¶ 3 

and 8; and FAA Exhibit 1, Item 9, exhibit A, ¶3 and 8] The Respondent disputes that it was 

aware of this practice and states that it “never gave permission to Scott Aviation to engage in 

those fueling practices.” [FAA Exhibit 1, Item 10, exhibit B, ¶3] 

Had the Respondent known that Scott Aviation/Sterling was exercising fueling rights beyond 

those authorized by its lease, the Airport may have exposed itself to allegations of unjust 

discrimination from other tenants. The Record indicates the Respondent met with the 

Complainant to discuss its fueling activities and clarify its specific lease terms in September of 

2005. [FAA Exhibit 1, Item 5, AF11 and FAA Exhibit 1, Item 7, exhibit F] Taking steps to 

ensure its compliance with its Federal obligations demonstrates that the Respondent is striving to 

achieve the standard of compliance as stated in Section V of this Determination. Most 

importantly, the fact that the Respondent has chosen to enforce the terms of the lease by limiting 

the Complainant’s fueling rights to self-fueling does not constitute a grant assurance violation. 

Against this background, it is simply unreasonable for the Director to find that the Respondent 

has unjustly discriminated against the Complaint based on the fact that two aeronautical users 

have been granted different fueling rights. [See Avitat at 25] As stated in Rick Aviation, Inc. v. 

Peninsula Airport Commission, FAA Docket No. 16-05-18, (May 8, 2007) (Director’s 

Determination) at 17, (November 6, 2007) (Final Agency Decision) at 15 (Rick Aviation), “The 

FAA will not step in to overturn a lease provision simply because the aeronautical tenant has 

discovered the provision the tenant agreed to has created an undesirable position for the tenant.” 

With that said, recognizing that future negotiations between both parties will hinge upon whether 

or not Sterling is similarly situated to Cessna, the Director will address this issue. The 

Complainant’s March 30, 2009 letter10 raised this issue and requested FAA guidance in response 

to the following questions: 

“Is Sterling similarly situated to Cessna?” 

“Would it be unjust discrimination to deny Sterling the same or similar fueling 

rights as Cessna?” [FAA Exhibit 1, Item 14, p.5] 

The Complainant states: 

“The complaint centers on unjust discrimination related to the disparate 

treatment of similarly situated aeronautical service providers’ ability to fuel 

aircraft. Both Sterling and The Cessna Aircraft Company (‘Cessna’) are Part 

 

10 The Respondent’s counsel via letter dated June 29, 2009, advised it responded to Complainant’s March 30 letter 

by letter of May 29. [FAA Exhibit 1, Item 3] Counsel further advised that on the date this matter was docketed, 

June 19, 2009, the Complainant sent a letter in response to the May 29 letter. 
16 

145 Repair Stations and GMIA’s website lists both as providers of ‘Aircraft 

Maintenance.’ While Milwaukee County has granted Cessna a broad right to fuel 

aircraft of ‘its customers, business invitees and guests,’ the airport sponsor is 

attempting to deny Sterling the same right to fuel aircraft that they maintain for 

their customers.” [FAA Exhibit 1, Item 1, p. 1] 

The Respondent: 

“Admits that Sterling is a Part 145 Repair Station, that Sterling provides Aircraft 

Charter Services, and that Sterling and Cessna are listed on the employment page 

of GMIA’s website as companies that perform aircraft maintenance, but denies 

that the County holds Cessna out to the public as an aircraft maintenance 

provider...” [FAA Exhibit 1, Item 5, ¶2] 

“Denies that Cessna and Sterling are similarly situated.” [FAA Exhibit 1, Item 

5, ¶4] 

The Complainant argues that when an airport sponsor offers a privilege to one aeronautical 

service provider, Grant Assurance 22 compels that airport to offer that same privilege to other 

similarly situated aeronautical service providers. Grant Assurance 22 at (c), (h) and (i) provides 

that an airport may treat dissimilar aeronautical users of the airport dissimilarly. This limits the 

Director’s analysis to whether or not the Respondent is treating the Complainant in an unjustly 

discriminatory manner. 

The Complainant relies on a standard cited from Kent J. Ashton v. City of Concord, North 

Carolina, FAA Docket No. 16-99-09, (July 3, 2000) (Final Decision and Order) at 18 (Ashton): 

“The FAA will determine that the airport is acting in a manner that is unjustly 

discriminatory if they find that ‘another entity, in a similar situation, was unjustly 

denied a similar situation.” [FAA Exhibit 1, Item 1, ¶2] 

However, this statement only recognizes half of the standard used by the FAA in determining 

whether or not an airport sponsor has engaged in unjust economic discrimination. As noted in 

Penobscot Air Service LTD v. County of Knox Board of Commissioners, FAA Docket No. 16-

97-04, (September 25, 1997) (Record of Determination) at 22 (Penobscot ROD), “Assurance 22, 

Economic Nondiscrimination prohibits only unjust discrimination among users. Differences in 

treatment including rental rates, are permissible as long as those differences are not unjust.”11 

As a result, the FAA has long held that in order to sustain a finding of unjust economic 

discrimination, a complainant must establish that it requested similar terms and conditions as 

other similarly situated airport users and was denied for unjust reasons. [See Aerodynamics of 

Reading, Inc. v Reading Regional Airport Authority, FAA Docket No. 16-00-03, (December 22, 

2000) (Director’s Determination) at 19 (Aerodynamics DD)] 

 

11 The U.S. Court of Appeals upheld this finding in Penobscot Air Services, Ltd. V. FAA, 164 F.3d 713, 726 (1st Cir. 

1999). 
17 

In Ashton, the Associate Administrator upheld the sponsor’s distinctions and variations in 

services as reasonable because they reflected dissimilar uses of the airport and were drawn in 

pursuit of appropriate goals. [See Ashton at 18] The Respondent correctly describes this twopronged test in its Memorandum in Support of Respondent’s Motion to Dismiss. [FAA Exhibit 

1, Item 7, p. 6] Incidentally, applying this test will allow the Director to answer the two 

questions related to similarly situated tenants and unjust discriminatory treatment. 

Prong 1: Are Sterling and Cessna similarly situated? 

The Director will analyze evidence in the Record which discusses the Complainant’s and 

Cessna’s use of the Airport and the business models they utilize. This evidence includes leases, 

commercial operating permits, the Respondent’s Schedule of Minimum Standards for 

Commercial Aeronautical Activities, and descriptions of both aeronautical service providers. 

Leases 

GMIA entered into leases with Cessna and the Complainant. Both leases: 

• include dated terms and renewal provisions; 

• describe how the lessee may use the airport property leased; 

• stipulate fueling rights; and 

• note specific prohibitions and limitations imposed on the lessees. 

The Complainant’s lease was for an initial term of ten years (from April 1, 1997 to March 31, 

2007)12, and provided the lessee with the right to renew for two additional periods of five years 

on the same terms and conditions. [FAA Exhibit 1, Item 1, exhibit C, p. 2] Cessna’s lease 

provided for an initial term of approximately five years13 and automatically renews, subject to an 

adjustment of the lessee’s rental payment, for seven additional terms of five years. [FAA Exhibit 

1, Item 1, exhibit A, p. 2] 

Both leases are specific about how the lessee may use its leasehold. The Complainant is 

provided “the right and privilege to engage in and perform Aircraft Charter and Air Taxi 

Services” as defined in GMIA’s Minimum Standards. [FAA Exhibit 1, Item 1, exhibit C, p. 2] 

The lease also specifically permits the Complainant to use its leasehold “for the purpose of 

storage, repair, fueling, maintenance, and operation of the Lessee’s owned or leased aircraft.” 

[FAA Exhibit 1, Item 1, exhibit C, p. 2] Cessna’s lease is: 

“for the purpose of storing, servicing, repairing and performing maintenance of 

aircraft, aircraft assemblies, aircraft accessories, radios and electronic 

equipment and any components thereof; for the sale or lease of aircraft, aircraft 

assemblies, aircraft radio and electronic equipment and components or parts 

thereof; and, for the business and operations offices and shops in connection with 

the purposes authorized herein;” [FAA Exhibit 1, Item 1, exhibit A, p. 3]

 

12 The Complainant acquired Scott Air in March of 2004 and assumed the existing lease. [FAA Exhibit 1, Item 1, 

¶7] 

13 Cessna’s lease describes its initial term as running “from the date the agreement is executed until the expiration of 

five (5) years from the date a City of Milwaukee occupancy permit is issued for the proposed Cessna hangar facility, 

or until December 31, 1995, whichever date is earlier.” [FAA Exhibit 1, Item 1, exhibit A, p. 2] 
18 

The leases discuss specific rights and responsibilities associated with fueling. The 

Complainant’s lease allows it to utilize the existing aviation fuel and oil storage and dispensing 

facilities in its leasehold areas or to install additional or replacement facilities at a location 

approved by the Airport Director “to serve its requirements only”. [FAA Exhibit 1, Item 1, 

exhibit C, p. 6] The Complainant’s lease further states: 

“Lessee agrees that it shall not sell or furnish aviation fuels and oil to others, 

except to those who own, lease, rent or operate aircraft for exclusive use of 

Lessee, it being expressly understood that the permission granted herein is 

intended to authorize storage of said products for use in airplanes owned, leased, 

rented or operated exclusively by or for Lessee.” [FAA Exhibit 1, Item 1, exhibit 

C, p. 8] 

Cessna’s lease states, “[a]viation fuel storage and dispensing facilities to serve the requirements 

of Lessee and its customers, business invitees, and guests only, may be installed on Lessee’s 

premises.” [FAA Exhibit 1, Item 1, exhibit A, p. 9] 

Both leases require the lessee to provide monthly reports to the Airport Director regarding the 

aviation fuels and oil delivered to its respective leasehold.14 [FAA Exhibit 1, Item 1, exhibit A, 

pp 9-10 and FAA Exhibit 1, Item 1, exhibit C, p. 7] Cessna is required to pay fuel flowage fees 

based on its monthly reports. [FAA Exhibit 1, Item 1, exhibit A, p. 10] However, the 

Complainant has the option of paying fuel flowage fees or executing a separate agreement to pay 

landing fees. [FAA Exhibit 1, Item 1, exhibit C, p. 8] The Complainant elected to pay landing 

fees. [FAA Exhibit 1, Item 7 exhibit B, ¶14and FAA Exhibit 1, Item 18, p. 2]

Both leases contain specific prohibitions and limitations. The Complainant must obtain the 

Airport Director’s consent before storing aircraft in its hangar for any purpose other than those 

specifically contemplated in the lease. [FAA Exhibit 1, Item 1, exhibit C, pp 3-4] Cessna is 

prohibited from engaging in any practices normally considered those of an FBO. [FAA Exhibit 

1, Item 1, exhibit A, p. 3] Both lessees must obtain Milwaukee County’s approval before 

engaging in any business or activity not specifically authorized or contemplated within the lease. 

[FAA Exhibit 1, Item 1, exhibit A, pp 8-9 and FAA Exhibit 1, Item 1, exhibit C, p. 9] 

Commercial Operating Permits 

The Respondent now requires tenants engaged in airside commercial activities to obtain a 

commercial operating permit, even if the tenant’s lease permits that activity. Commercial 

operating permits serve the following purposes: 

“...they (a) inform GMIA management of the scope and location of commercial 

activities being conducted on the airport; (b) require insurance and 

indemnification for the protection of the airport and its tenants, users and the 

public; (c) inform a permittee of airport security requirements and other rules 

 

14 GMIA notes that this requirement is usually only enforced on charter operators during an audit or when there is 

some reasonable basis to conclude that a lease violation may exist. [FAA Exhibit 1, Item 18, p.2] 
19 

and regulations; (d) ensure that a permittee has entered into an agreement for 

appropriate airport space from which to conduct its activities; (e) prohibit 

discrimination by a permittee; and (f) reflect the requirements of GMIA’s grant 

assurance obligations.” [FAA Exhibit 1, Item 18, p. 1] 

The Complainant holds commercial operating permits to conduct aircraft charter and air taxi 

services, and airframe and engine maintenance and repair and/or modification. [FAA Exhibit 1, 

Item 17, exhibit A and B] Cessna is not required to obtain any commercial operating permits 

because it does not offer commercial services to the general public. [FAA Exhibit 1, Item 18, p. 

2] 

Respondent’s Schedule of Minimum Standards for Commercial Aeronautical Activities 

 

In October of 2003, the Respondent adopted new Minimum Standards for 11 different 

aeronautical activities and special requirements for subtenants at GMIA. The Minimum 

Standards define two different types of aeronautical repair activities: 

1. Airframe and Engine Maintenance and Repair and/or Modification 

2. Specialized Aircraft Repair Services 

 [FAA Exhibit 1, Item 1, exhibit B, Index] 

The Complaint inaccurately describes the Minimum Standards applicable to both the 

Complainant and Cessna. The Complainant states: 

“Both Sterling and Cessna meet the requirements to provide Specialized Aircraft 

Repair Services as defined by the GMIA Minimum Standards.” [FAA Exhibit 1, 

Item 1, ¶ 2] 

“Sterling exceeds the Minimum Standards for a Specialized Aircraft Repair 

Service operator, which is the same minimum standard applied by Milwaukee 

County to Cessna. An attempt by Milwaukee County to claim that Sterling is not 

such a service provider would contradict their granting of the right to perform 

maintenance on other people’s airplanes Sterling’s predecessor, Scott Air 

Charter, Inc. (Scott Air), and would be in conflict with Milwaukee County’s own 

listing of Sterling as a provider of ‘Aircraft Maintenance’ on their website.” 

[FAA Exhibit 1, Item 1, ¶ 5] 

“GMIA Minimum Standards provide for two different categories of maintenance 

and repair. Airframe and Engine Maintenance And Repair and/or Modification 

requires Part 145 Class 1 and 3 airframe ratings as well as a Class 1 powerplant 

rating. Neither Sterling nor Cessna hold such ratings. Rather both Cessna and 

Sterling hold Limited Ratings for specific makes and models. By nature of the 

Part 145 Limited Rating both Sterling and Cessna would meet the GMIA 

Minimum Standards for Specialized Aircraft Repair Services.” [FAA Exhibit 1, 

Item 1, ¶ 10] 
20 

However, the Respondent’s Answer states: 

“...neither admits nor denies because of insufficient knowledge or information the 

allegation that Sterling meets the requirements to provide Specialized Aircraft 

Repair Services under the Minimum Standards; denies that Cessna meets the 

requirements to provide Specialized Aircraft Repair Services under the Minimum 

Standards because Cessna performs maintenance only on Cessna’s Citation 

model aircraft; and states that neither Sterling nor Cessna is licensed to perform, 

or has applied for a license to perform, Specialized Aircraft Repair Services.” 

[FAA Exhibit 1, Item 5, ¶ 2] 

“...Sterling is not licensed to perform, and has not applied for a license to 

perform, Specialized Aircraft Repair Services...” [FAA Exhibit 1, Item 5, ¶ 5] 

“...neither admits nor denies because of insufficient knowledge or information the 

allegation that both Sterling and Cessna would meet the Minimum Standards for 

Specialized Aircraft Repair Services; and states that neither entity is licensed to 

perform, or has applied for a license to perform, Specialized Aircraft Repair 

Services.” [FAA Exhibit 1, Item 5, ¶ 10] 

While the Complainant may believe it met GMIA’s Minimum Standards for specialized aircraft 

repair services, nothing in the Record indicates that the Complainant has requested such 

designation from the Respondent. Nothing in the Record indicates that Cessna has sought such 

designation. However, the Record does establish that the Complainant is authorized by the 

Respondent to perform airframe and engine maintenance and repair and/or modification 

activities because it holds a commercial operating permit for this activity. [FAA Exhibit 1, Item 

5, ¶1 and FAA Exhibit 1, Item 17 exhibit B] 

Descriptions of Both Aeronautical Service Providers 

The Complaint offers the following descriptions and comparisons: 

“Sterling is an FAA approved Part 145 Repair Station for airframe, instrument 

and radio repairs. Sterling is also a Part 135 charter operator with 13 aircraft 

listed for operation on its Part 135 certificate. Some of these aircraft are owned 

by private individuals who have contracted with Sterling to maintain their 

aircraft. Sterling provides these owners excellent maintenance and an 

opportunity to minimize their costs of ownership by listing their aircraft with 

Sterling’s Part 135 certificate for charter when not in use by the owners.” [FAA 

Exhibit 1, Item 1, ¶1] 

“Cessna is a FAA approved Part 145 Repair Station specializing in the repair of 

Cessna Citation aircraft.” [FAA Exhibit 1, Item 1, ¶2] 

“While both Sterling and Cessna perform maintenance to the high standards 

imposed under Part 145, Cessna is not required to meet the additional 
21 

maintenance standards of Part 135 for all of its customers.” [FAA Exhibit 1, 

Item 1, ¶3] 

The Respondent offers the following descriptions: 

“...admits that Sterling is an FAA-approved Part 145 Repair Station...” 

“Admits that Sterling is a Part 135 charter operator with 13 aircraft listed on its FAR 

Part 135 Charter Certificate...” [FAA Exhibit 1, Item 5, ¶1] 

“...Cessna specializes in the repair of Cessna Citation aircraft; states that the 

only activities Cessna is permitted to perform are maintenance and warranty 

work on Cessna Citation aircraft, sales of Citation aircraft (and parts, equipment 

and accessories)...” [FAA Exhibit 1, Item 5, ¶2] 

Sterling’s website describes its business as: 

“Sterling Aviation is a privately held, full-service corporate aviation firm 

specializing in aircraft management, air charter, aircraft maintenance, and 

acquisition support of aircraft for private travel. Sterling holds certifications as 

an FAA Part 135 on-demand air carrier and an FAA Part 145 repair station.” 

[FAA Exhibit 1, Item 7, exhibit E, p. 1] 

The Cessna Aircraft Company, on its website, describes its facility at GMIA as: 

“The Milwaukee Citation Service Center is located at General Mitchell 

International Airport and is dedicated to the support of Citation aircraft in the 

upper Midwest.” [FAA Exhibit 1, Item 16] 

In its second pleading, the Complainant adds the following description of Cessna: 

“The Cessna Aircraft Company is a charter operator and has been for the last 21 

years, Cessna holds FAA Certificate Number CNQA918C. In fact, Cessna’s 

“CitationShares”15 program, a division of Cessna Aircraft Company according 

to the CitationShares website, holds FAA Certificate Number Z5FA890K. 

According to FAA records as of August 5, 2009, these two certificates account for 

93 aircraft available for charter from Cessna.” [FAA Exhibit 1, Item 8, AF8, 

Item 9, pp. 2-3] 

To support this statement, the Complainant provides an affidavit by Robert Gort, President and 

Chief Operation Officer of Sterling, which states: 

“I have regularly seen CitationShares program aircraft on the Cessna ramp at 

General Mitchell International Airport (“GMIA”).” [FAA Exhibit 1, Item 8, 

exhibit A, ¶ 6] 

 

15 Cessna’s “CitationShares” program is now known as “CitationAir by Cessna”. [FAA Exhibit 1, Item 19, p.1] 
22 

The Complainant also provides airline certification information on the Cessna Aircraft Company 

and CitationShares Management, LLC, as printed from the FAA’s website. [FAA Exhibit 1, 

Item 8 exhibits B and C and FAA Exhibit 1, Item 9, exhibits B and C] Additionally, the 

Complainant provides information from CitationShares’ website entitled “Company Overview” 

which states: 

“CitationShares, a division of Cessna Aircraft Company, offers the best in 

fractional jet ownership, jet card membership and whole aircraft management.” 

[FAA Exhibit 1, Item 8, exhibit D and FAA Exhibit 1, Item 9, exhibit D] 

The Respondent’s Rebuttal notes: 

“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.” 

[FAA Exhibit 1, Item 10, p. 3] 

In furtherance of this position, the Respondent provided an affidavit from the General Manager 

at the Milwaukee Citation Service Center who states that “Cessna does not operate aircraft 

charter or fractional ownership management services for CitationShares program aircraft, or any 

other aircraft, out of the Service Center at GMIA.” [FAA Exhibit 1, Item 10, exhibit A] 

The Cessna Aircraft Company is a large corporation engaged in numerous sectors of the aviation 

industry, including, but not limited to, fractional ownership and charter services. However, the 

Record does not support the Complainant’s claim that The Cessna Aircraft Company is engaged 

in these activities at GMIA. In fact, when the Director reviewed the website page submitted by 

the Complainant as an exhibit (FAA Exhibit 1, Item 8, exhibit D and FAA Exhibit 1, Item 9, 

exhibit D) in support of this argument, the Director accessed the link labeled “Contact Us” and 

was directed to a mailing address in Greenwich, Connecticut. [FAA Exhibit 1, Item 19, p. 3] 

Furthermore, Cessna’s lease with the Respondent does not contemplate, nor does it permit, 

Cessna to conduct aircraft management or charter activities at GMIA. As the Complainant 

originally noted, “Cessna is a FAA approved Part 145 Repair Station specializing in the repair 

of Cessna Citation aircraft.” [FAA Exhibit 1, Item 1, ¶2] Therefore, based on the Cessna 

employee’s statement and absent any evidence to the contrary, it is reasonable to deduce that any 

CitationShares aircraft on Cessna’s ramp, as witnessed by Robert Gort, were visiting the Cessna 

Citation Service Center for maintenance or repairs. 

Conclusion of Prong 1 

The Respondent originally envisioned two different types of aeronautical service providers, and 

this is reflected in the respective lease agreements. The Complainant’s lease describes an aircraft 

charter and air taxi service provider with the right to self-fuel and maintain its owned or leased 

aircraft as guaranteed by Grant Assurance 22(d) and (f). Cessna’s lease is more descriptive of an 

aeronautical repair station and aircraft sales business. 
23 

While both leases require their respective lessees to pay a ground rent, the Complainant, as an air 

carrier, was given the choice to pay either a fuel flowage fee or landing fees. Cessna is required 

to pay a fuel flowage fee, and reports provided by the Respondent indicate it has done so. [FAA 

Exhibit 1, Item 18, exhibit D] 

Sterling’s operations have evolved beyond those originally contemplated in the lease it assumed 

from Scott. At present, Sterling advertises itself as a “full-service corporate aviation firm 

specializing in aircraft management, air charter, aircraft maintenance, and acquisition support 

of aircraft for private travel.” [FAA Exhibit 1, Item 7, exhibit E, p. 1] The Record supports 

that it is currently authorized by GMIA to provide charter services and perform maintenance. 

[FAA Exhibit 1, Item 17, exhibits A and B] The Complainant states that it is indeed engaged in 

these activities. [FAA Exhibit 1, Item 1, ¶1] The Record of evidence, including the 

Complainant’s initial description of Cessna, indicates that Cessna’s activities have consistently 

been limited to the sale, repair, and maintenance of Cessna Citation aircraft. While there is some 

overlap between the activities of these two entities – both repair and maintain aircraft – these 

activities have always been a complimentary component to Sterling’s Part 135 charter 

requirements. Sterling’s business model and wide ranging menu of services is quite different 

from the Cessna Citation Service Center at GMIA. Therefore, the Director finds that Sterling is 

not similarly situated to Cessna. 

Prong 2: Are the Respondent’s reasons for the disparate treatment unjustly 

discriminatory? 

Although the Complainant fails the first of the two-prong test needed to establish a 

violation of Grant Assurance 22, the Director will discuss the second prong in order to 

answer this question posed by the Complainant: 

“Would it be unjust discrimination to deny Sterling the same or similar fueling 

rights as Cessna?” [FAA Exhibit 1, Item 14, p.5] 

The FAA has long held that aeronautical users agreeing to different rights, restrictions, 

responsibilities and terms in their agreements with an airport sponsor may necessarily support 

the conclusion that the parties are not similarly situated for the purposes of finding unjust 

economic discrimination. [See Penobscot Air Services, Ltd. V. FAA, 164 F.3d 713, 726 (1st Cir. 

1999) (Penobscot); Aerodynamics FAD at 13; Adventure at 13; and Avitat at 30] As discussed at 

great length above, the Complainant accepted different terms when it assumed the Scott lease in 

2004 and made no attempts to renegotiate its fueling rights when it requested to extend the lease 

in 2007. Because the Complainant fails to establish that it is similarly situated, the Director 

cannot find that it has been treated in an unjustly discriminatory manner. Whatever reasons or 

motivations the Respondent had for granting Cessna its fueling privilege no longer matters 

because the Complainant, at the time it assumed the Scott lease in 2004 and exercised its right to 

extend the term of its lease in 2007, made no attempt to negotiate a change to its lease with the 

County concerning fueling. There is nothing in the Record to demonstrate that the Complainant 

submitted a petition or any other written request to expand its right to fuel in 2004 or 2007. 
24 

Recognizing that the two parties may revisit this matter in future lease negotiations, the Director 

offers the following observations: 

• An airport’s prime obligation is to serve the interest of the aeronautical using public. 

[See United States Construction Corporation v. City of Pompano Beach, Florida, FAA 

Docket No. 16-00-14, (July 10, 2002) (Final Agency Decision) at 21. GMIA must 

remain mindful of this in developing minimum standards and leases. However, the 

Director has consistently concluded that Grant Assurance 22 does not require an airport 

sponsor to offer lease rates and terms that are identical to other leases negotiated at 

different points in time. As a result, a sponsor is permitted to pursue agreements that 

more nearly serve the interests of the public with more recent leaseholders. [See, 

Penobscot; Wilson at 12-13; Santa Monica Airport Association, Krueger Aviation, Inc. 

and Santa Monica air Center v. City of Santa Monica, California, FAA Docket No. 16-

99-21, (February 4, 2003) (Final Decision and Order) at 17; Aerodynamics FAD at 11; 

and Rick Aviation at 28] 

In going forward, the Respondent should evaluate whether or not special fueling 

privileges serve the interest of the aeronautical using public. As discussed in its 

Memorandum in Support of Respondent’s Motion to Dismiss, the Respondent is 

concerned that providing additional fueling privileges to the Complainant could impact 

the long-term viability of its Fixed Base Operator. [FAA Exhibit 1, Item 7, p. 10] The 

Respondent states that the Complainant has consistently “refused to provide any records” 

related to its fueling activities. [FAA Exhibit 1, Item 7, p. 10 and Item 18, p. 2] Given 

that these reports are required in the Complainant’s lease, the Respondent may wish to 

enforce this provision to ensure compliance with the minimum standards and the rights of 

other aeronautical users as reflected in their agreements with the County. 

• A tenant’s history and relationship with the airport sponsor matter. [See Rick Aviation at 

16] The Record documents the Complainant’s claim that fueling was exercised outside 

those articulated in its current lease. [FAA Exhibit 1, Item 1, ¶6 and 14; FAA Exhibit 1, 

Item 1, exhibit 4, ¶2; FAA Exhibit 1, Item 8, exhibit A, ¶ 3 and 8; and FAA Exhibit 1, 

Item 9, exhibit A, ¶3 and 8] The Complainant was unresponsive to the Respondent’s 

request for information needed to conduct an audit.16 [FAA Exhibit 1, Item 7, exhibit B, 

¶14 and FAA Exhibit 1, Item 18, p. 2] The Respondent can consider these factors in 

future contract offers and negotiations. 

• An airport sponsor is not obligated to provide application assistance or incubate business 

development proposals. [See Atlantic Helicopters Inc./Chesapeake Bay Helicopters v 

Monroe County, Florida, FAA Docket No. 16-07-12, (December 3, 2008) (Director’s 

Determination) at 35] To address the inherent friction among competing aeronautical 

service providers and promote the orderly development of the airport, the FAA 

encourages airport management, as a matter of prudence, to establish minimum standards 

to be met by all who would engage in a commercial aeronautical activity at the airport. 

[See FAA Order 5190.6B, ¶10.4] Once the airport sponsor has established minimum 

 

16 In Rick Aviation, the Director described a sponsor’s audit of its tenant as, “common and acceptable business 

practices.” [See Rick Aviation at 37] 
25 

standards, it should apply them objectively and uniformly to all similarly situated onairport aeronautical activities and services. [FAA AC 150/5190-7, section 1.1.] [See

Flightline v. Shreveport, FAA Docket No. 16-07-05 (March 7, 2008) (Director’s 

Determination) at 16 and Gina Michelle Moore, individually, and d/b/a Warbird Sky 

Ventures, Inc. v. Sumner County Regional Airport Authority, FAA Docket No. 16-07-16, 

(February 27, 2009) (Director’s Determination) at 44] 

The Record indicates the Complainant’s history of evolving its business model and 

proposing new ventures. [FAA Exhibit 1, Item 1, ¶14; FAA Exhibit 1, Item 1, exhibit 4, 

¶4 and 5; FAA Exhibit 1, Item 7, exhibit B, ¶5 and 6; FAA Exhibit 1, Item 7, exhibit G; 

and FAA Exhibit 1, Item 7, exhibit H] The Respondent can require the Complainant to 

adapt its future business plans to better conform to the requirements outlined in the 

Airport’s Minimum Standards. 

• An airport sponsor has a fundamental responsibility to ensure that aeronautical business 

activities can be conducted safely and do not diminish the existing and planned use of the 

Airport.17 

As noted above, the Respondent never consented to fueling practices beyond those 

described in the Scott lease. [FAA Exhibit 1, Item 10, exhibit B, ¶3] An affidavit 

provided by Steven A. Wright, Airport Properties Manager at GMIA raises additional 

concerns: 

“Sterling’s hangars are currently located in a row of hangars designated for 

based corporate aircraft storage near the intersection of Taxiway ‘P’ and 

Taxiway ‘B.’ Taxiway ‘B’ is used by large commercial airline aircraft. Safety 

concerns increase as more aircraft use these taxiways. For this reason, GMIA’s 

long term Master Plan anticipates that General Aviation support activities will be 

located away from the intersection of Taxiway ‘P’ and Taxiway ‘B.’ 

If Sterling succeeds on its Complaint and is allowed to fuel a large number of 

aircraft that Sterling neither owns nor controls, as if Sterling were an FBO, then 

safety concerns are likely to arise as a result of the increased taxiing activity of 

General Aviation aircraft mixed with the larger airline aircraft already using the 

taxiways near Sterling’s facilities.” [FAA Exhibit 1, Item 7, exhibit B, ¶22 and 

23] 

The Director reviewed these concerns with a Senior Engineer in the FAA’s Great Lakes 

Region. The engineer noted that the cumulative impact of significant, additional fueling 

activities on Taxiway P could result in capacity and congestion concerns for the air traffic 

control tower. [FAA Exhibit 1, Item 20] 

 

17 Grant Assurance 19, Operation and Maintenance requires, in pertinent part, “[t]he airport and all facilities which 

are necessary to serve the aeronautical users of the airport, other than facilities owned and controlled by the United 

States, 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.” 
26 

Grant Assurance 22 at (h) and (i) provides that an airport sponsor may treat dissimilarly, 

dissimilar aeronautical uses of the airport. This is especially true when it comes to 

matters of safety and the airport’s operational efficiency. [See FAA Order 5190.6B 

¶11.5.c] The Respondent is obligated18 to ensure that any future rights negotiated with 

the Complainant do not create an adverse impact on safety or limit the future utility of the 

airport as planned. 

Conclusion of Prong 2 

The Complainant cannot establish that it is similarly situated. This effectively precludes the 

Director from finding unjust discrimination. Grant Assurance 22 permits an airport sponsor to 

treat dissimilar aeronautical uses of the airport in a dissimilar manner. 

Conclusion of Issue 1 

The Complainant and Scott Aviation assumed and exercised broader fueling rights than those 

contained in its actual lease with the Respondent for over 20 years. Once the Respondent 

became aware of this situation, it took steps to enforce the terms stipulated in its lease with the 

Complainant. This does not constitute a violation of Grant Assurance 22, and the Director will 

not abrogate a valid lease simply because the Complainant now realizes that it does not contain 

the explicit rights it desires. 

In order to sustain a finding of unjust economic discrimination, a complainant must establish that 

it requested similar terms and conditions as other similarly situated aeronautical users and was 

denied for unjust reasons. First and foremost, the Complainant agreed to more limited fueling 

rights when it assumed the Scott lease in 2004 and again when it exercised its option to extend its 

lease in 2007. Secondly, even if the Complainant had petitioned the County to expand its fueling 

rights in 2004 or 2007 and was denied, the Director does not find the Complainant to be similarly 

situated to the Cessna Citation Service Center. The Record identifies the Complainant as an 

aircraft charter and taxi service provider and aircraft maintenance facility. Moreover, the 

Complainant’s own website describes a broader offering of services, and contradicts its 

agreement with the County. Lastly, the Respondent may treat dissimilar users in a dissimilar 

manner when its distinctions are reasonable. The Director dismisses the Complainant’s 

allegations with regard to Grant Assurance 22, Economic Nondiscrimination. 

Issue 2: Whether the Respondent has granted an Exclusive Right to The Cessna Aircraft 

Company by refusing to recognize the Complainant as a Specialized Aircraft Repair Service 

operator in violation of 49 U.S.C. § 47107(a)(4) and Grant Assurance 23, Exclusive Rights.

The Complainant states: 

 

18 Grant Assurance 29, Airport Layout Plan, requires an airport to “keep up to date at all times an airport layout plan 

of the airport showing... the location and nature of all existing and proposed airport facilities and structures... The 

sponsor will not make or permit any changes or alterations in the airport or any of its facilities which are not in 

conformity with the airport layout plan as approved by the Secretary and which might, in the opinion of the 

Secretary, adversely affect the safety, utility or efficiency of the airport.” 
27 

“Milwaukee County’s implicit refusal to recognize the fact that Sterling meets the 

requirements to provide Specialized Aircraft Repair Services, as defined by the 

Minimum Standards, is a violation of Grant Assurance 23, Exclusive Rights.” 

[FAA Exhibit 1, Item 1, ¶5] 

As noted above, the Record contains no evidence to establish that the Complainant 

requested such designation from the Respondent. The Complainant provides no evidence 

to establish that Cessna is recognized as a Specialized Aircraft Repair Service operator. 

In fact, the Respondent states that neither party is, nor has applied to be, a Specialized 

Aircraft Repair Service operator. [FAA Exhibit 1, Item 5, ¶ 10] 

In a Part 16 investigation, the Director weighs the documentation and information 

submitted to the Record by a preponderance of evidence. Here, the record does not show 

that another party similarly situated to the Complainant received preferential treatment 

denied to the Complainant in similar situations. [See Richard M. Grayson and Gate 9 

Hangar, LLC v. DeKalb County, Georgia, FAA Docket No. 16-05-13, (February 1, 2006) 

(Director’s Determination) at 11] The Record fails to substantiate Complainant’s claim. 

As such, the Director dismisses this allegation.

Issue 3: Whether the Respondent has granted an Exclusive Right to The Cessna Aircraft 

Company by refusing to allow the Complainant the right to fuel its customers, business invitees, 

and guests in violation of 49 U.S.C. § 47107(a)(4) and Grant Assurance 23, Exclusive Rights.

The Complainant states: 

“Milwaukee County expressly granted Cessna the right to fuel ‘customers, 

business invitees, or guests’ with no reference to the Minimum Standards. The 

refusal to grant a similar right to Sterling is a grant of an exclusive right to 

Cessna.” [FAA Exhibit 1, Item 1, ¶5] 

The Respondent denies the allegation that it has granted an exclusive right to Cessna. [FAA 

Exhibit 1, Item 5, ¶5] 

In the Complainant’s second pleading, it clarifies that its allegations related to Grant Assurance 

23 are dependent upon its allegations regarding Grant Assurance 22. The Complainant states: 

“...Sterling has established that Cessna and Sterling are similarly situated 

entities, yet the County prefers to grant Cessna the exclusive right to fuel ‘its 

customers, business invitees and guests.’ This dissimilar treatment amounts to 

both a violation of Assurance 22 and 23.” [FAA Exhibit 1, Item 9, p. 6]

The Complainant cites Maxim United, LLC v. Board of County Commissioners of Jefferson 

County, Colorado, FAA Docket No. 16-01-10, (April 2, 2002) (Director’s Determination) 

(Maxim) in support of this reasoning. In Maxim, the Complainant sought self-fueling rights 

similar to those granted to other tenants. The Complainant then successfully established that it 
28 

was similarly situated to two other tenants with contemporaneous leases. Lastly, because only 

Maxim was prohibited from self-fueling, the Director found that a constructive exclusive right 

was granted to the group of other tenants who were allowed to self-fuel during this same period. 

The extant case is quite different. Sterling seeks to obtain a right to fuel aircraft that is not 

provided for by its lease with the County. Fueling is a privilege granted by an airport sponsor to 

a prospective aeronautical service provider. It is not a right that may be exercised at will by a 

prospective service provider. Secondly, the Complainant consented to limited rights to fuel 

when it assumed Scott’s lease in 2004 and then extended that lease in 2007. Most significantly, 

the Complainant has not established that it is similarly situated to any other aeronautical service 

provider exercising broader fueling rights. Given these stark differences, the Director does not 

view the findings made in Maxim as applicable to this Determination. 

Grant Assurance 23, Exclusive Rights, prohibits an airport sponsor from granting to one entity 

the right to provide a particular aeronautical service to the public while preventing other 

similarly situated entities from offering the same aeronautical service. FAA Order 5190.6B 

defines an exclusive right as, “a power, privilege, or other right excluding or debarring another 

from enjoying or exercising a like power, privilege or right.” [FAA Order 5190.6B, ¶8.2.] 

FAA Advisory Circular 150/5190-6, Exclusive Rights at Federally-Obligated Airports, notes that 

the exclusive rights prohibition has existed since 1938. Its purpose “is to prevent monopolies 

and combinations in restraint of trade and to promote competition at federally-obligated airports. 

This Advisory Circular further states “[s]ignificant to understanding the exclusive rights policy, 

is the recognition that it is the impact of the activity, and not necessarily the airport sponsor’s 

intent, that constitutes an exclusive rights violation.” Therefore, the Director will analyze the 

impact of Cessna’s broader fueling rights. 

The Complainant asserts the gravamen of the Complaint is that “both Sterling and Cessna are 

still similarly situated aeronautical service providers with regard to their repair service 

classification at GMIA...” [FAA Exhibit 1, Item 1, ¶2] Scott Air was certified as a Part 145 

Aircraft Repair Station on September 1, 1993; this is approximately four years after Cessna 

executed its lease. [FAA Exhibit 1, Item 1, ¶6] Scott Air’s lease was amended so that it could 

perform aircraft engine repairs and maintenance services in October of 2003. [FAA Exhibit 1, 

Item 17, exhibit C] Sterling executed its most recent Commercial Operating Permit to perform 

airframe and engine maintenance and repair services on June 2, 2009. [FAA Exhibit 1, Item 17, 

exhibit B] The fact that Cessna may fuel its customers, business invitees, and guests has not 

precluded the Complainant from offering competing aircraft maintenance and repair services 

with gross revenues in excess of one million dollars in 2008. [FAA Exhibit 1, Item 1, ¶2 and 

FAA Exhibit 1, Item 8, exhibit A, ¶4] 

GMIA’s Minimum Standards prescribe requirements for FBOs under the operating category of 

line services. [FAA Exhibit 1, Item 5, AF7] FBOs providing line services are the only 

aeronautical service providers authorized by the Minimum Standards to sell fuel commercially to 

the general public. [FAA Exhibit 1, Item 1, exhibit B, p. 1 and FAA Exhibit 1, Item 5, AF7] 

Although only one FBO is currently operating at the Airport, the Respondent solicited for a 
29 

second FBO which was selected in June 2008.19 [FAA Exhibit 1, Item 5, AF17 and AF18] The 

Complainant opted not to respond to this solicitation and states that it has no desire to operate an 

FBO. [FAA Exhibit 1, Item 5 AF18; FAA Exhibit 1, Item 8, AF 18; FAA Exhibit 1, Item 8, 

exhibit A, ¶3] Given that one FBO is permitted to sell fuel commercially and GMIA took steps 

to establish a second FBO, the Director cannot conclude that Cessna has an exclusive right to 

fuel aircraft it does not own or lease. 

Cessna’s fueling rights are conveyed through its lease. However, there is nothing in the Cessna 

lease which would prohibit the Respondent from conferring the same or similar privilege to 

another aeronautical service provider. The Complainant acquired a lease with different terms as 

compared to Cessna. An airport sponsor does not have an obligation to award new rights 

requested by its aeronautical tenants, especially if such rights would not be consistent with the 

airport’s minimum standards or violate the contract rights of other aeronautical tenants. [See, 

Penobscot; Wilson at 12-13; Santa Monica Airport Association, Krueger Aviation, Inc. and Santa 

Monica air Center v. City of Santa Monica, California, FAA Docket No. 16-99-21, (February 4, 

2003) (Final Decision and Order) at 17; Aerodynamics FAD at 11; and Rick Aviation at 28] 

Cessna enjoys a privilege which may be unique at this time. But the plain language contained in 

the lease does not bar other aeronautical service providers from potentially securing the same 

type of privilege. Moreover, the impact of this privilege has not precluded other FBO 

aeronautical service providers from providing competing services or engaging in the commercial 

sale of fuel under the Minimum Standards. Therefore, the Record, by a preponderance of 

reliable and probative documentation and information, does not support the allegation that the 

Respondent has granted an exclusive right in violation of Grant Assurance 23. 

VII. CONCLUSION 

Upon consideration of the entire Record herein, the applicable law and policy, and for the 

reasons stated above, the Director finds and concludes: 

(1) The Respondent’s refusal to grant the Complainant the same fueling rights as those 

granted to another aeronautical service provider does not constitute unjust discrimination 

in violation of 49 U.S.C. § 47107(a)(1) or Grant Assurance 22, Economic 

Nondiscrimination. 

(2) The Respondent has not granted an Exclusive Right to The Cessna Aircraft Company by 

refusing to recognize the Complainant as a Specialized Aircraft Repair Service operator. 

This does not constitute a violation of 49 U.S.C. § 47107(a)(4) or Grant Assurance 23, 

Exclusive Rights. 

(3) By refusing to allow the Complainant the right to fuel its customers, business invitees, 

and guests, the Respondent has not granted an Exclusive Right to The Cessna Aircraft 

Company in violation of 49 U.S.C. § 47107(a)(4) or Grant Assurance 23, Exclusive 

Rights. 

 

19 GMIA selected Mercury Aviation’s FBO proposal; however, Mercury Aviation has yet to begin construction of its 

new facilities due to economic uncertainties. [FAA Exhibit 1, Item 5, AF18] 
30 

ORDER 

Accordingly, it is ordered that: 

1. The Complaint is dismissed; and 

2. All motions not expressly granted in this Determination are denied. 

RIGHT OF APPEAL 

This Director’s Determination is an initial agency determination and does not constitute final 

agency action and order subject to judicial review. [14 CFR 16.247(b)(2).] A party to this 

Complaint adversely affected by the Director’s Determination may appeal the initial 

determination to the FAA Associate Administrator for Airports pursuant to 14 CFR 16.33(b) 

within thirty (30) days after service of the Director’s Determination. 

 April 13, 2010

 

Director Date 

Office of Compliance and Field Operations