FAA Docket No. 16-09-01 Director’s Determination 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

 

Final Dec. 17, 2009 

 Docket No. 16-09-01 

Gary R. Ernest 

COMPLAINANT 

v. 

Leitchfield-Grayson County Airport Board 

RESPONDENT 

DIRECTOR’S DETERMINATION

I. INTRODUCTION 

This matter is before the Federal Aviation Administration (FAA), Director of the Office of 

Airport Compliance and Field Operations, to investigate pursuant to the Rules of Practice 

for Federally Assisted Airport Enforcement Proceedings found in Title 14 Code of Federal 

Regulations (CFR), Part 16. 

Gary R. Ernest (Complainant) filed this formal Complaint pursuant to 14 CFR Part 16 

against the Leitchfield-Grayson County Airport Board (Board/Respondent), which owns 

and operates the Grayson County Airport (Airport) in Grayson County, Kentucky. The 

Complainant alleges that the Respondent is in violation of its Federal grant assurances 22, 

Economic Nondiscrimination; and 23, Exclusive Rights by allegedly denying his 

aeronautical access to the Airport and granting a prohibited exclusive right to others who 

allegedly enjoy such access. In this case, the particular airport access in question is 

through-the-fence access (TTF access) by which airport users taxi aircraft onto the Airport 

from an off-airport storage location. [FAA Exhibit 1, Item 1, p. 6] 

 Based on the Director’s review and consideration of the evidence submitted, the 

administrative record designated as FAA Exhibit 1, the relevant facts, and pertinent law 

and policy, the Director concludes, as set forth herein, that the Respondent is currently not 

in violation of grant assurances 22, Economic Discrimination or 23, Exclusive Rights.

II. PARTIES 

Grayson Airport (Airport) is a public-use airport owned by the Leitchfield-Grayson 

County Airport Board, Grayson County, Kentucky. Grayson County Airport is a general 

aviation airport with a 4,000 foot runway. [FAA Exhibit 1, Item 8] Since FY 2004, the 

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FAA has financed the planning and development of the Airport 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. This AIP funding exceeds one million 

dollars. The Board received its first AIP grant that contains the full set of grant 

assurances, including grant assurances 22, 23 and 24, in FY 2005. [FAA Exhibit 1, Item 9] 

The Complainant, Gary R. Ernest resides in Saline, Michigan. [FAA Exhibit 1, Item 1, p. 

2] He owns land with a hangar, near the Airport, with a permanent appurtenant nonexclusive easement for purposes of egress over and across a parcel of property lying 

adjacent to and west of the Airport. [FAA Exhibit 1, Item 1, p. 3] 

III. PROCEDURAL HISTORY and BACKGROUND 

Complainant’s Part 16 Procedural History 

On March 9, 2009, Gary R. Ernest filed this Part 16 Complaint. [FAA Exhibit 1, Item 1] 

On March 25, 2009, the FAA issued its Notice of Docketing. [FAA Exhibit 1, Item 2] 

On March 31, 2009, the Complainant notified the FAA that he re-mailed the Complaint to 

the Respondent after being notified of delivery failure. [FAA Exhibit 1, Item 3] On May 

4, 2009, the Complainant submitted a motion seeking “a ruling from the Administrator 

deeming Respondent’s failure to file an answer as an admission of the truth of each 

allegation contained in the complaint.” [FAA Exhibit 1, Item 4, p. 2] 

On June 23, 2009, the FAA demanded an Answer from the Respondent. [FAA Exhibit 1, 

Item 5] 

On June 30, 2009, the Respondent filed its Answer. [FAA Exhibit 1, Item 6] 

On July 11, 2009, the Complainant filed its Reply. [FAA Exhibit 1, Item 7] 

The Respondent did not file a Rebuttal. 

Factual Background 

On November 5, 2005, the Complainant purchased a 10,000 square foot parcel of land a 

short distance west of the Airport for the purpose of building a hangar (Hangar Parcel). 

He purchased the Hangar Parcel from John L. Madison and Sharon Madison; and Sonny 

Johnson and Mary Johnson for $1,800.00. [FAA Exhibit 1, Item 1, exh. 1, p. 1] 

The deed to the Hangar Parcel (Hangar Parcel Deed) also conveyed a Non-Exclusive 

Easement (Madison/Johnson Easement) on property between the Hangar Parcel and the 

Airport (Madison/Johnson Property). [FAA Exhibit 1, Item 1, exh. 1, p. 2] The Easement 

states: 

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FAA Docket No. 16-09-01 Director’s Determination 

[FAA Exhibit 1, Item 1, exh. 1, p. 2] 

The signatures on these documents include only those of John L. Madison, Sharon 

Madison, Sonny Johnson, Mary Johnson, Gary R. Ernest and the Notary Public, Cynthia 

Bailey. [FAA Exhibit 1, Item 1, exh. 1] The Complainant points to no other, underlying 

right of access to the Airport from the Madison/Johnson Easement. 

In his sworn statement, the Complainant stated: 

1. On November 5, 2005, I purchased a tract of land that lies a short distance 

west of Grayson County Airport. The property was conveyed to me with the 

understanding that it would be improved and used as an aircraft hangar. The 

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deed to the property also conveyed a non-exclusive easement for purposes of 

ingress and egress to Grayson County Airport. 

2. Prior to my purchase of the property, Jim (James) Davis, Airport Manager, 

Grayson County Airport actively encouraged my purchase and use of the 

property as an aircraft hangar. 

3. At no time until on or around June 30, 20071 (after my hangar was built and I 

had already started using the hangar), was I made aware that I would be 

required to sign a lease in order to gain access to airport facilities. 

4. In fact, prior to June 30, 2007, I regularly made use of the airport and the 

airport facilities. I was provided a key to access the FBO on the airport so I 

could utilize restroom and flight planning facilities. 

5. I am aware of several other hangar owners who are also own property just off 

the airport, including Leon Harrison2 .... 

6. All of these hangar owners continue to enjoy the use of the airport and 

access to the FBO on the airport..... 

8. At this point I do not know if I am the only party that has been singled out to 

sign the lease I was presented on June 30, 2007. [FAA Exhibit 1, Item 1, exh. 2] 

 

In the summer of 2007, the Board presented a draft lease agreement to the Complainant. 

The Lease Agreement contains provisions which appear to be irrelevant or inapplicable to 

a Lessee not leasing real property for the purpose of constructing improvements on the 

airport. However, some of the terms of the Lease Agreement provide some standard 

protections typical in use agreements at airports. This Lease Agreement states, in part: 

1. That for and in consideration of the covenants and agreements hereinafter set 

forth. Lessor does lease and Lessee does lease that certain parcel located on the 

Leitchfield -Grayson County Airport, and more particularly described as 

follows: 

 Taxiways; 

 Runways to and from Lessors' Airplane Hangar; 

 Fuel Stations; 

 Maintenance Facilities, and 

 Roadways for ingress and egress from Airport Road to the above-stated 

locations. (Hereinafter referred to as premises). 

2. TO HAVE AND TO HOLD the leased premises for the term of one year, 

beginning on the 1'l day of January, 2007, and ending on the 31'l day of 

December, 2007, inclusive, with the Lessee to have the right to renew this Lease 

according to the terms herein for an additional one year period by furnishing 

Lessor with annual payment to renew no later than thirty days prior to 

expiration of the first lease period. 

 

1

 Elsewhere in his Complaint, Complainant cites on or around July 30, 2007 as the date that the 

Complainant “was presented with a ‘Lease Agreement’ by the Leitchfield-Grayson County Airport Board.” 

[FAA Exhibit 1, Item 1, p. 3] The precise date of the presentation of the Lease is not essential. We accept 

that the Complainant is stating that in the summer of 2007, the Board presented the Complainant with a 

Lease for access to the airport, included as FAA Exhibit 1, Item 1 exh. 3.] 2

 Leon Harrison identifies himself as Chairman of the Leitchfield-Grayson County Air Board in 

correspondence to the Complainant on November 8, 2007. [FAA Exhibit 1, Item 1, exh. 5] 

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3. Lessee agrees to pay rentals to the Lessor the sum of $500.00 per year for the 

initial term of this Lease. Said rentals shall be due and payable on January 1st 

for each lease year... [FAA Exhibit 1, Item 1, exh. 3] 

In response, on August 13, 2007, the Complainant wrote the Board to object to the 

offered Lease Agreement, stating: 

The ‘Lease Agreement’ documentation received from the Leitchfield-Grayson 

County Airport Board dated July 30th 2007 does not reflect the proposed 

agreement properly for the sole purpose or arrangement for a 

“license”/permission agreement to access my personal hangar via the existing 

taxiways. 

 Instead, I would like to offer an appropriate “license agreement” which would 

properly address this issue. This license would cover an initial term of 10 years 

w/automatic renewal and maintain a more appropriate annual fee amount of 

$200.00 annually. [FAA Exhibit 1, Item 1, exh. 4] 

 

This letter does not state that the Madison/Johnson Easement conveyed access into the 

airport property or ‘through-the-fence (TTF). Also, at this time, the Complainant did not 

present a draft offer of an access or license agreement to the Board. Instead, on October 

26, 2007, the Complainant wrote a check to the Board in the amount of $500. The 

Complainant included a statement in the memo line, “KM20 Airport & FBO Access Fee’s 

Pd in Full.” [FAA Exhibit 1, Item 1, exh. 6] According to the Complainant, in November 

2007, Mr. Harrison, Board Chairman, returned Complainant’s $500 check. [FAA Exhibit 

1, Item 1, p. 4 and Exh. 6] 

On November 8, 2007, the Complainant received unsigned correspondence from Leon 

Harrison, Chairman, Leitchfield County Air Board, stating: 

Please be advised that you have 10 days from the date of receipt of this letter to 

comply with the contract you received or you will be blocked from using M20 

taxiways and runways. 

 Please send on of the copys [sic] of the contract, signed & notarize along with 

a check w/memo to read-access fee for taxiways and runways for 2007. [FAA 

Exhibit 1, Item 1, exh. 5] 

On December 3, 2007, Complainant’s counsel wrote to Leon Harrison, Board Chairman, 

informing Mr. Harrison that he represents Mr. Ernest, stating: 

My client asked me to contact you in order to sort out the issue of the "lease" he 

was presented several months ago. I have reviewed that draft lease. It has 

several fundamental problems that would need to be corrected before I could 

counsel Mr. Ernest to sign the document. The most problematic issue is that the 

lease casts Mr. Ernest as leasing property on the airport's land. As I understand 

it, this is simply not the case. The property Mr. Ernest owns is located off the 

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property owned by the airport proprietor. All he is seeking is access to the 

airport from his off-airport property. [FAA Exhibit 1, Item 1, exh. 7] 

Starting in July 2008, the Complainant’s counsel contacted the FAA to get guidance, 

present information and seek assistance in resolving the matter before filing a formal Part 

16 complaint. [FAA Exhibit 1, Item 1, exh. 9] In an email to the FAA, Complainant’s 

counsel also stated: 

I understand that prior to filing (a formal Part 16 complaint), I need to try 

informal resolution facilitated through the FAA. To date, the airport has 

ignored several requests for information and attempts to settle. 

 I need a contact FAA airports office and person so I can meet my obligations 

for pre-complaint resolution under FAR Sec. 16.21.3 [FAA Exhibit 1, Item 1, 

exh. 8] 

Complainant’s counsel included a draft License Agreement between Gary Ernest and the 

Board for review by the FAA on December 1, 2008, but has not stated that it provided the 

License Agreement in a proposal to the Board. [FAA Exhibit 1, Item 1, exhs. 12 & 13] 

The Respondent in its answer replied that the “Board stands by the lease agreement sent 

to Mr. Ernest which requires the lessee to pay a $500 access fee per year for access to the 

Airfield”. The Respondent also advised that the “Airport is operated by an appointed 

Airport Board along with local citizens whom all volunteer their time”. [FAA Exhibit 1, 

Item 6] 

 

IV. ISSUES 

The Complainant alleges that the Respondent is in violation of its Federal grant assurances 

22, Economic Nondiscrimination; and 23, Exclusive Rights. However, the Complainant 

does not make a concise statement of exactly how the Board’s actions violate these 

Federal obligations. Rather, the Complainant presents one list of alleged facts [FAA 

Exhibit 1, Item 1, pp. 2-4] as the basis for this alleged unjust economic discrimination and 

constructive granting of an exclusive right. 

The Complainant summarizes, “The Airport’s actions aimed at [the Complainant] violate 

the [grant] assurances..... There are several Airport users similarly situated to [the 

Complainant] with off-airport hangars..., including Leon Harrison, chair of the airport 

board.” [FAA Exhibit 1, Item 1, p. 6] 

More specifically, the Complainant characterizes the relevant grant assurances as follows: 

The FAA requirements implement a congressional policy that is expressed in the 

Airport and Airway Improvement Act of 1982. as amended. 49 U.S.C. Sec. 

 

3

 Part 16 does not require FAA facilitated informal complaint resolution. Complainant’s must certify an 

attempt to resolve the conflict informally, but they need not involve the FAA in such attempts. 

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FAA Docket No. 16-09-01 Director’s Determination 

47101 et seq. The Act provides that recipients of AIP grants must assure that 

"the airport will be available for public use on reasonable conditions and 

without unjust discrimination." 49 U.S.C. Sec. 47107(a)(1). [FAA Exhibit 1, 

Item 1, pp. 5-6] 

The FAA has also determined that an airport's unjustified prohibition or 

restriction of an aeronautical activity constitutes a violation of the statutory 

prohibition on exclusive rights in the Federal Aviation Act, 49 U.S.C. Sec. 

40103(e). The Act provides that "A person does not have an exclusive right to 

use an air navigation facility on which Government money has been expended."

[FAA Exhibit 1, Item 1, p. 5] 

The Director construes this presentation in the Complaint as an overall allegation that the 

Board disfavored the Complainant in a manner that unjustly discriminates against the 

Complainant’s interest in TTF access to the Airport; and that the Board’s allegedly 

“unjustified prohibition”4 on the Complainant’s TTF access grants a prohibited exclusive 

right to others who allegedly enjoy such access.5 [FAA Exhibit 1, Item 1, p. 5-6] 

 

The Board provides a very limited one-page Answer, citing established FAA policy: “The 

Leitchfield-Grayson County Airport Board believes that FAA Order 5190.6A 6-6 

substantiates the Board’s request for airfield access fee.” [FAA Exhibit 1, Item 6] 

Considering the above, the FAA has determined that the following issues require analysis 

in order to provide a complete review of the Respondents’ compliance with applicable 

Federal law and policy: 

1. Whether the Board has provided more favorable treatment to other Airport users in 

a manner that unjustly discriminates against Ernest in violation of Federal grant 

assurance 22, Economic Nondiscrimination, 49 U.S.C. § 47107(a). 

2. Whether the Board’s actions with regard to the Complainant constitute the 

constructive granting of an exclusive right by means of an unreasonable denial of 

access in violation of grant assurance 23, Exclusive Rights, 49 U.S.C. § 40103(e) 

and 49 U.S.C. § 47107(a)(4). 

 

4

 ‘Justification’ is not the standard of compliance in the case of a denial of access. The language and 

standard of compliance is discussed below in the Applicable Law and Policy Section. 

5

 The Complainant also takes exception to an alleged denial of nonaeronautical access to on-airport 

conveniences. The Complainant’s most concise statement with regard to this issue in his Complaint 

appears at paragraph 31: “To the best of Petitioners knowledge theses off-airport hangar owners have full 

access to the airport FBO in addition to airport access. [sic]” [FAA Exhibit 1, Item 1, p. 6] However, in the 

Complainant’s sworn statement, he states, “I was provided a key to access the FBO on the airport so I could 

utilize restroom and flight planning facilities.” [FAA Exhibit 1, Item 1, exh. 2, p. 1] By the Complaint, it is 

unclear whether the Complainant can or cannot access this on-airport facility. It is not clear whether the 

facility in question is a public accommodation available to transient users, since it is locked. However, it is 

clear from the record that the Complainant cannot taxi his aircraft from his hangar to the on-airport facility. 

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FAA Docket No. 16-09-01 Director’s Determination 

V. APPLICABLE FEDERAL LAW AND FAA POLICY 

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

authorize programs for providing Federal funds to local communities for the development 

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

to maintain and operate its airport facilities safely and efficiently and in accordance with 

specified conditions. Commitments assumed by airport sponsors in 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 

aeronautical access. 

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.6 FAA Order 5190.6B, Airport Compliance Manual (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 Federally obligated 

airport owners' compliance with their sponsor assurances. 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. The following grant assurances are relevant to this Complaint: 

Grant Assurance 5, Preserving Rights and Powers 

Grant Assurance 5, Preserving Rights and Powers, implements the provisions of Title 49 

U.S.C. § 47107, and requires, in pertinent part, that the sponsor of a Federally obligated 

airport: 

 

6

 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 

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“...will not take or permit any action which would operate to deprive it of any of the 

rights and powers necessary to perform any or all of the terms, conditions, and 

assurances in the grant agreement without the written approval of the Secretary, 

and will act promptly to acquire, extinguish or modify any outstanding rights or 

claims of right of others which would interfere with such performance by the 

sponsor. This shall be done in a manner acceptable to the Secretary.” 

Grant 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. Federal grant assurance 22, Economic 

Nondiscrimination, (Assurance 22) deals with both the reasonableness of airport access 

and the prohibition of adopting unjustly discriminatory conditions as a potential for 

limiting access. 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: 

[The airport owner or sponsor] 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. [Assurance 22(a)] 

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. [Assurance 22 (h)] 

Subsection (h) qualifies subsection (a). 

Grant Assurance 23, Exclusive Rights 

Federal grant assurance 23, Exclusive Rights, (Assurance 23) implements the provisions of 

49 U.S.C. §§ 40103(e) and 47107(a)(4), and requires, in pertinent part, that the owner or 

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.... It further agrees that 

it 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. 

[Assurance 23] 

While public-use airports may impose qualifications and minimum standards upon those 

who engage in aeronautical activities, FAA has taken the position that the application of 

any unreasonable requirement or any standard that is applied in an unjustly discriminatory 

manner may constitute the constructive grant of an exclusive right. Courts have found the 

grant of an exclusive right where a significant burden has been placed on one competitor 

that is not placed on another. [See e.g. Pompano Beach v FAA, 774 F2d 1529 (11th Cir, 

1985)] 

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The FAA has updated exclusive rights guidance in FAA Advisory Circular 150/5190-6 

Exclusive Rights at Federally-Obligated Airports, January 4, 2007, stating: 

An exclusive rights violation can occur through the use of leases where, for example, 

all the available airport land and/or facilities suitable for aeronautical activities are 

leased to a single aeronautical service provider who cannot put it into productive 

use within a reasonable period of time, thereby denying other qualified parties the 

opportunity to compete to be an aeronautical service provider at the airport. An 

airport sponsor’s refusal to permit a single FBO to expand based on the sponsor’s 

desire to open the airport to competition is not a violation of the grant assurances. 

Additionally, an airport sponsor may exclude an incumbent FBO from participating 

under a competitive solicitation in order to bring a second FBO onto the airport to 

create a more competitive environment. [Exclusive Rights AC, Section 1.3(b)(3)] 

Grant Assurance 24, Fee and Rental Structure 

Grant assurance 24, Fee and Rental Structure, addresses fees the owner or sponsor levies 

on airport users in exchange for the services the airport provides. 

Title 49 U.S.C. § 47107(a)(13) requires, in pertinent part, that the owner or sponsor of a 

Federally obligated airport “will maintain a schedule of charges for use of facilities and 

services at the airport that will make the airport as self-sustaining as possible under the 

circumstances existing at the airport.” 

 

Grant assurance 24 satisfies the requirements of § 47107(a)(13). It provides, in pertinent 

part, that the owner or sponsor of a Federally-obligated airport agrees to establish a fee 

and rental structure that will make the airport as self-sustaining as possible under the 

circumstances existing at the particular airport, taking into account such factors as the 

volume of traffic and economy of collection. This sponsor will maintain a fee and rental 

structure consistent with assurances 22, Economic Nondiscrimination, and 23, Exclusive 

Rights. The intent of the assurance is for the airport operator to charge fees that are 

sufficient to cover as much of the airport’s costs as is feasible. 

Airport Agreements Granting “Through-the-Fence” Access

An agreement that permits access to the airfield by aircraft based on land adjacent to, but 

not a part of, the airport property has been referred to as a “through-the-fence'' operation. 

“Through-the-fence” arrangements can place an encumbrance upon the airport property 

and reduce the airport’s ability to meet its federal obligations. As a general principle, the 

FAA does not support agreements that grant access to the public landing area by aircraft 

stored and serviced offsite on adjacent property. Under no circumstances is the FAA to 

support any “through-the-fence” agreement associated with residential use since that 

action will be inconsistent with the federal obligation to ensure compatible land use 

adjacent to the airport. 

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The federal obligation to make an airport available for the use and benefit of the public 

does not impose any requirement to permit access by aircraft from adjacent property. 

The existence of such an arrangement could conflict with the sponsor’s federal 

obligations unless the sponsor retains the legal right to require the off-site property owner 

or occupant to conform in all respects to the requirements of any existing or proposed 

grant agreement. 

The sponsor is entitled to seek recovery of capital and operating costs of providing a 

public use airfield. The development of aeronautical enterprises on land off airport and 

not controlled by the sponsor can result in an economic competitive advantage for the 

“through-the-fence” operator to the detriment of on-airport tenants. To equalize this 

imbalance, the sponsor should obtain from any off-base enterprise or entity a fair return 

for its use of the airfield by assessing access fees from those entities having “through-thefence” access. For example, if the airport sponsor charges $100 per month for a singleengine aircraft tie-down on the airport to pay for the costs of airport operation, then any 

other single-engine aircraft operator using the airport “through-the- fence” should be 

charged no less than a similar fee. The same is true for the ground lease on a privately 

owned hangar and the fees charged to “through-the-fence” operators with a hangar off the 

airport. The airport sponsor must not discriminate against those aeronautical users within 

the airport. NOTE: “Through-the-fence” operators are not protected by the grant 

assurances. The airport sponsor may assess any level of fee it deems appropriate for 

“through-the-fence” operators so long as that fee is not less than the comparable fee paid 

by on-airport tenants. See FAA Order 5190.6B, Section 12-7. 

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 law. 

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. The Order 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 

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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. The Order 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 

FAA-administered 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 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)] 

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. 

VI. ANALYSIS AND DISCUSSION

This case is about the Complainant’s acquisition of rights from a non-airport, third party 

to store and taxi his aircraft on certain property adjacent to the Airport and the Airport 

Board’s subsequent blocking of his TTF access to the Airport. The Complainant states, 

in a sworn statement, that the Airport manager “actively encouraged my purchase and use 

of the property as an aircraft hangar.” [FAA Exhibit 1, Item 1, exh. 2, p. 1] The 

Complainant does not represent this as an unwritten verbal contract with the Board, nor 

does the Complainant present any evidence of his due diligence beyond this verbal 

encouragement. Rather, the Complainant is relying on the Board’s grant assurances 22 

and 23 to compel the Board to grant Complainant’s TTF access to the Airport because the 

Board has allegedly granted such TTF access to others.7

 

Before addressing the allegedly discriminatory treatment, alleged unjustified prohibition 

or alleged constructive granting of an exclusive right to other users, we discuss the 

 

7

In Penobscot Air Service v. Knox County, FAA Docket No. 16-97-04 (September 25, 1997) (Director’s 

Determination) (Penobscot), the FAA stated: “The purpose of the grant assurances is to protect the public 

interest in the operation of Federally obligated airports. The purpose is not to provide alternative or 

supplemental rights to those normally available to commercial tenants in disputes with their landlords, i.e. 

negotiation or commercial litigation under applicable state and local laws....” [Penobscot at page 24; 

decision upheld on appeal, Penobscot Air Service v. FAA, 164 F3d 713 (1st Cir., 1999)] The lack of 

private right of action as found in Penobscot is prudently applied to noncommercial users, as well as 

commercial ones. 

Page 12 of 20 
FAA Docket No. 16-09-01 Director’s Determination 

reasonability of an airport sponsor limiting, mitigating or eliminating TTF access to its 

airport. 

One of the key fundamental principles at issue here is the proprietary rights of an airport 

sponsor. Federal obligations limit a sponsor’s proprietary rights, but do not eliminate 

them. [See, Kent J. Ashton and Jacquelin R. Ashton v. City of Concord, North Carolina, 

FAA Docket No. 16-02-01 (Director’s Determination Issued August 22, 2003) (Final 

Agency Decision Issued February 27, 2004) Ashton III, DD, p. 27] 

One example of where an airport sponsor may exercise its proprietary rights is to protect 

itself as a going concern by limiting, mitigating or eliminating aeronautical access from 

adjacent off-airport property ‘through-the-fence.’ These actions against TTF access 

preserve an airport sponsor’s ability to charge fees and leases for on-airport uses and 

operate in a self-sustaining manner consistent with the grant assurances. 

The FAA has been clear on its position regarding TTF access. Specifically, in JetAway v 

Montrose, FAA Docket No. 16-06-01 (Director’s Determination) (November 6, 2006) 

(JetAway I), the Director stated: 

 

... the Federal obligation to make an airport available for the use and benefit of the 

public does not impose any requirement to permit access by aircraft from adjacent 

property and the airport sponsor may, from FAA’s perspective, simply deny 

“through-the-fence” access if it so chooses. [JetAway I, DD, p. 13] [See Also,

JetAway v. Montrose II, FAA Docket No. 16-08-01 (Director’s Determination) (July 

2, 2009) JetAway II] 

In addition to the proprietary rights and powers reserved to an airport owner, grant 

assurance 5, Preserving Rights and Powers, prohibits the airport sponsor from giving 

away rights and powers it needs to control and operate the airport in a manner consistent 

with its grant assurances. It obligates the sponsor to retain financial and legal control of 

airport property to ensure the airport’s continued operation as an airport. [JetAway II, DD, 

p. 21] Because TTF access may undermine a sponsor’s ability to be as financially selfsustaining as possible, continuing to grant TTF access may cede a right or power to adhere 

to grant assurance 24, Fee and Rental Structure. Retaining revenue to the airport account 

by requiring based-aircraft to be stored on the airport in leased facilities is a common 

method to ensure financial self-sustainability. 

 

Issue 1

Whether the Board has provided more favorable treatment to other Airport users in a 

manner that unjustly discriminates against the Complainant in violation of Federal grant 

assurance 22, Economic Nondiscrimination, 49 U.S.C. § 47107(a). 

FAA’s long standing policy regarding TTF access is that off-airport users are not 

protected by the grant assurances. In JetAway I, the FAA stated, “Users having access to 

the airport under a “through-the-fence” agreement are not protected by the sponsor’s 

Page 13 of 20 
FAA Docket No. 16-09-01 Director’s Determination 

obligations to the FAA.” [JetAway I, DD, p. 20, fn. 169] Likewise in Carey/Davenport v. 

Afton-Lincoln County Municipal Airport Joint Powers Board, FAA Docket No. 16-06-06 

(January 19, 2007) (Director’s Determination) [Carey], the FAA stated, “through-thefence users are not protected by the grant assurances.” [Carey, DD, p. 43] These 

precedents follow long-standing FAA guidance found in both FAA Order 5190-6A, 

Airport Compliance Requirements (FAA Order 5190.6A), issued on October 2, 1989 and 

its recent replacement, FAA Order 5190-6B, Airport Compliance Manual, issued 

September 30, 2009. FAA Order 5190-6A states, “The obligation to make an airport 

available for the use and benefit of the public does not impose any requirement to permit 

access by aircraft from adjacent property.” [FAA Order 5190.6A, sec. 6-6a, p. 44] The 

replacement FAA Order 5190-6B continues this policy, re-stating: 

The federal obligation to make an airport available for the use and benefit of the 

public does not impose any requirement to permit access by aircraft from adjacent 

property. [FAA Order 5190.6B, sec. 12-7a] 

Thus, through-the-fence users are not protected by the unjust economic discrimination 

provisions of grant assurance 22. Furthermore, in this case, the Complainant has not 

acquired TTF access from the Board. The Complainant has not stated that he has sought 

the exercise of any such property right to enter the Airport from the Madison/Johnson 

Easement in state court. Rather, it appears that the Complainant is relying on FAA policy 

and the Board’s grant assurances to force the Board to grant access at the location of his 

Madison/Johnson Easement. This is in direct opposition with FAA’s long-standing policy 

questioning the wisdom of permitting TTF access and the applicability of the grant 

assurances with regard to TTF access. Finally, an airport sponsor’s Exhibit A attachment 

to its grant agreements defines the limits of airport property that is subject to the force of 

the grant assurances. 

Despite the inapplicability of grant assurance 22 to TTF access, we address the 

Complainant’s allegations. The Complainant summarizes, “The Airport’s actions aimed at 

[the Complainant] violate the [grant] assurances..... There are several Airport users 

similarly situated to [the Complainant] with off-airport hangars..., including Leon 

Harrison, chair of the airport board.” [FAA Exhibit 1, Item 1, p. 6] 

In addition to the Board’s attempts to improve its business practices by acting to limit, mitigate 

or eliminate TTF access, the Board states that the allegedly preferred parties differ from the 

Complainant with regard to the performance of in-kind services. The Board answers: 

The Airport Board has agreed that Mr. Ernest may perform in-kind services which 

equate to the yearly access fee (which is at the discretion of the Airport Board) for 

the betterment of the airport facilities in lieu of the access fee as other hangar 

owners do. The in-kind services include but are not limited to mowing, maintenance, 

donation of adjacent property, etc. and must be approved by the Airport Board.

[FAA Exhibit 1, Item 6] 

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FAA Docket No. 16-09-01 Director’s Determination 

The Complainant contends that the Respondent’s position further supports “Mr. Ernest’s 

complaint that he’s been singled out with the lease presented to him by the Airport Board. 

The Airport Board fails to provide any evidence that any similarly situated Airport users 

actually provide any bartered services in exchange for access to the Airport.” [FAA 

Exhibit 1, Item 7] The Complainant contends in his Reply that he is the only Airport user 

now required to pay fees to gain access to the Airport from his off-airport hangar. 

In any case, the Complainant has not stated that he has agreed to provide personal in-kind 

services to the Board, nor has the Complainant donated property. Also, the Complainant 

identifies himself as residing in Michigan. The above quote from the Board’s Answer 

reveals a casual business practice that is more suitable to a non-obligated airport. A 

transition from such casual practices to a state of more formalized business relationships is 

common in situations, such as this, where a small airport sponsor initially becomes 

obligated to the Federal government.8

 These transitions can be difficult. However, it is 

critical that airport sponsor’s understand their Federal obligations and be responsive to 

reasonable FAA requests, including those arising during the course of a Part 16 

proceeding.9

 

This discussion of how the Complainant may not be similarly-situated to allegedly 

preferred airport users is separate from the parallel conclusion that TTF access is not 

protected by the grant assurances, including the grant assurance prohibiting unjust 

economic discrimination. 

The Complainant is due the consideration of any other seeker of a leasehold on the 

Airport, and is due the consideration of any other seeker of transient-use of the Airport. 

The Complainant has presented no evidence or argument that the Board is prohibiting the 

Complainant from seeking any kind of leasehold on the Airport, or is in any way 

disfavoring the Complainant’s use of the Airport as a transient user.10 

Also, the Board has valid reasons to exercise more care before entering into TTF access 

agreements, since the Board was entering into a new relationship with the Federal 

 

8

 The Director addressed an airport sponsor’s casual business practices in a recent Part 16 decision. The 

Director advised the sponsor that a casual approach to airport management erodes the sponsor’s ability to 

establish a program to address its respective grant obligations and effectively implement the program and 

that a ceding of the sponsor’s ability to preserve its rights and powers occurs. [See Warbirds v. Sumner 

County, FAA Docket No. 16-07-16, (Director’s Determination) (February 27, 2009)] 9

 See FAA Exhibit 1, Items 2 and 5. 

10 The Complainant fails to clearly allege a violation of a grant assurance with regard to the key to the onairport facility, which he characterizes as an FBO. [FAA Exhibit 1, Item 1, exh. 2, p. 1] As stated above, 

the Complainant states that he does possess a key to the restroom and flight planning facility. [FAA Exhibit 

1, Item 1, exh. 2, p. 1] The Board answers, “Access keys to the administrative building are limited to 

individuals at the discretion of the Airport Board. Not all hangar owners have access keys to the 

administrative building nor do all Airport Board Members.” [FAA Exhibit 1, Item 6] The Complainant 

notes in his reply that the “facility in question is the only restroom facility provided at the Airport.” [FAA 

Exhibit 1, Item 7] It would be imprudent for the Board to distribute keys to an FBO or administrative 

building to all transient users of the Airport. The Complainant has not established that the facility is a 

public accommodation, or that it is aeronautical in nature. Finally, the alleged preference to others appears 

di minimis. 

Page 15 of 20 
FAA Docket No. 16-09-01 Director’s Determination 

government at roughly the same time.11 With regard to allegations of unjust economic 

discrimination the Director has stated: 

The FAA has acknowledged that several factors can distinguish parties that a 

sponsor can justly treat differently, without violating its Federal obligations. Such 

factors may [include]... the enlistment of prudent business practices that may 

change over time. [Gate 9 v. De Kalb County, FAA Docket No. 16-05-13, 

(Director’s Determination) (February 1, 2006), p. 11] 

No grant assurance requires an airport sponsor to perpetuate poor business practices from the 

past into the future.12 The Associate Administrator stated, “airport sponsors may change lease 

terms, rates, and conditions of occupancy in order to balance the various legitimate interests of the 

public, including improved business practices.” [Rick Aviation v Peninsula Airport Commission,

FAA Docket No. 16-05-08 (Final Agency Decision) (November 6, 2007), p. 2] (Rick) When 

an airport sponsor is in a ‘pioneering phase’ of development, such as the Board having only 

received its first Federal grant in FY 2004, the FAA expects the sponsor to transition from past 

casual practices suitable for a non-obligated airport to future formal business-like practices 

suitable for a Federally obligated airport. One way to do this is to start to limit, mitigate or 

eliminate TTF access and to professionalize its business practices. 

Considering (1) the above rational basis for the Board’s practice; and (2) the fact that airport 

sponsors may modify lease terms, rates and conditions of occupancy in order to more nearly 

balance the various legitimate interests of the public, including improved business practices;13

and (3) most importantly, the fact that grant assurance 22 does not protect TTF access, the 

Director cannot conclude that the Board has unjustly discriminated against the Complainant by 

declining to grant TTF access. 

 

11 FAA grant records indicate that the Board signed its first planning grant, with limited Federal assurances, 

on July 19, 2004. The Board signed its first improvement grant, with full Federal assurances, including 

grant assurances 22, 23 and 24, on August 24, 2005. [FAA Exhibit 1, Item 9]As such, the Board would 

have been becoming familiar with the FAA requirements and FAA’s general objection to TTF access 

during this time. 

12 The FAA recognizes that a sponsor can pursue agreements with more recent leaseholders that more 

nearly serve the interests of the public and provide for more professional business practices. See Penobscot 

Air Service. Moreover, a Complainant does not establish a per se violation of Assurance 22 (unjust 

discrimination) simply by showing differences between two parties. The FAA has found that differences in 

lease terms executed at different points in time can be justified by the market conditions present at the time 

of lease execution. [See, FAA Docket No. 16-99-09, Wilson Air Center, LLC v. Memphis-Shelby County 

Airport Authority, Final Decision and Order (August 30, 2001), hereinafter, Wilson] Additionally, FAA 

policy provides that an airport sponsor may quite properly increase its standards from time to time in order 

to ensure a higher quality of service to the public. [See, FAA Order 5190.6A, Sec. 3-17(c)] In Wilson, the 

FAA held that differences in lease terms that result from an airport sponsor improving its business practice 

does not result in a per se violation of Assurance 22. [Wilson, p. 17] That said, an airport sponsor that 

increases its standards may be required to apply those same standards to previously executed leases at the 

time those leases are modified or renewed. [See, FAA Docket No. 16-01-10, Maxim United, LLC. v. Board 

of County Commissioners of Jefferson County, Colorado, Final Decision of Director’s Determination 

(April 2, 2002)] 

13 See Rick, DD, p. 29. 

Page 16 of 20 
FAA Docket No. 16-09-01 Director’s Determination 

Consequently, the Director finds that the Board is not in violation of grant assurance 22, 

Economic Nondiscrimination. 

Issue 2

Whether the Board’s actions with regard to the Complainant constitute the constructive 

granting of an exclusive right by means of an unreasonable denial of access in violation of 

grant assurance 23, Exclusive Rights, 49 U.S.C. § 40103(e) and 49 U.S.C. § 47107(a)(4). 

We have already discussed the allegation of unjust economic discrimination under grant 

assurance 22, above. Here, we discuss the question of the denial of reasonable access in a 

manner to constructively grant an exclusive right. In the past, the FAA has found that 

unreasonable restrictions, delay, or unjust discrimination could constructively grant a 

prohibited exclusive right. Generally, however, the Director considers these allegations 

under grant assurance 22 as a test for unreasonable terms, as a prerequisite for the finding 

of a constructive grant of an exclusive right.14 

The Complainant styles his allegation as a constructive granting of an exclusive right, 

stating: “The FAA has also determined that an airport’s unjustified prohibition or 

restriction of an aeronautical activity constitutes a violation of the statutory prohibition on 

the exclusive rights....” [FAA Exhibit 1, Item 1, p. 5] 

The Board answers that its restriction, or in this case, its insistence on a lease with the 

Complainant and a $500 per year access fee, is not unjustified, stating, “The LeitchfieldGrayson County Airport Board believes that FAA Order 5190-6A 6-6 substantiates the 

Board’s request for airfield access fee.” [FAA Exhibit 1, Item 6] 

The Board’s offered reason for agreeing to the Complainant’s specific TTF access by 

means of a lease agreement and a $500 per year access fee is supported by the prior longstanding guidance in FAA Order 5190-6A, and restated and strengthened by the FAA’s 

replacement guidance FAA Order 5190-6B. Specifically, the reasons cited by the Board 

include the following excerpt: 

The obligation to make an airport available for the use and benefit of the public does 

not impose any requirement to permit access by aircraft from adjacent property..... 

 The owner of an airport is entitled to seek recovery of initial and continuing costs 

of providing a public use landing area. [FAA Order 5190-6A, sec. 6-6] 

This reference to cost recovery refers directly to the Board’s obligation to be a financially 

self-sustaining as possible under its grant assurance 24, Fee and Rental Structure. Grant 

assurance 24 obligates the airport sponsor to maintain a fee and rental structure that will 

make the airport as self-sustaining as possible under the particular circumstances existing 

at that airport. [See Applicable Law and Policy, above] With regard to the Complainant’s 

contribution to the Airport’s financial self-sustainability, the Complainant states: 

 

14 See Self Serve Pumps v Chicago Executive Airport, FAA Docket No. 16-07-02 (Director’s 

Determination Issued March 17, 2008) p. 28. 

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FAA Docket No. 16-09-01 Director’s Determination 

On November 5, 2005, I purchased a tract of land that lies a short distance west 

of Grayson County Airport.....At no time until on or around June 30, 2007 (after 

my hangar was built and I had already started using the hangar), was I made 

aware that I would be required to sign a lease in order to gain access to airport 

facilities. In fact, prior to June 30, 2007, I regularly made use of the airport and 

the airport facilities. [FAA Exhibit 1, Item 1, exh. 2, p. 1] 

From the Complainant’s own statement, it appears that the Complainant believed he was 

obtaining TTF access to the Airport without any stated compensation to the Airport 

account. The Complainant has made no claim of providing any in-kind services to the 

benefit of the Airport or Board or donating any property. 

The Complainant rebuts the Board’s stated justification, stating: 

In its answer, the Airport Board attempts to justify its actions based on FAA Order 

5190.6A 6-6. However, the Airport Board’s reliance on this authority is misguided. 

The cited section of FAA Order 5190.6A addresses through-the-fence operators. 

Section 6-6 d. indicates that the FAA recommends that airport owners refrain from 

entering into arrangements where access to airports can be gained from adjacent 

property. However, the Airport Board fails to consider the fact that an easement was 

granted in this case. [FAA Exhibit 1, Item 7, pp. 4-5] 

The Director disagrees with both the Complainant’s characterization of the 

Madison/Johnson Easement and the applicability of such easement to this proceeding. 

The Complainant appears to argue that the easement that was included with his purchase 

of the parcel provides him with an automatic right to access the airport. This is not the 

case. Here, this easement appears only to provide him with access across the adjacent 

property up to the airport boundary – but no further. The Director notes that the easement 

conveyance has an express termination clause. This clause states, “In the event the 

property subject to this easement should ever be conveyed to the Leitchfield-Grayson 

County Airport Board, this easement shall terminate.” [FAA Exhibit 1, Item 1, exh. 1] 

While no evidence has been submitted to show that the the Board acquired the parcel 

subject to the easement, the facts would not change – the Complainant would still appear 

to only have access up to the relocated airport boundary, immediately adjacent to the 

Complainant’s Hangar Parcel, and no further. 

In JetAway II, the Director stated that state courts should properly determine the legal 

effect and significance of an easement or other TTF property right obtained by agreement. 

In furtherance of this, the Director concluded that the TTF operator’s “rights to conduct 

commercial activities that involve the transit of aircraft 'through-the-fence' of the Airport 

may be protected by the Off-Airport Agreement, but not the County's Federal grant 

assurance.” [See JetAway II, DD p. 20] This precedent applies to non-commercial TTF 

access as well. Unlike in JetAway II, there has been no showing that the Board approved 

or executed an easement granting airport access to the Complainant from his off-airport 

parcel. Furthermore, the Complainant does not present any information that he has 

Page 18 of 20 
FAA Docket No. 16-09-01 Director’s Determination 

defended any legal right to gain TTF access in local courts, or that any court of proper 

jurisdiction has ordered such access. 

The Board’s offered justification for an agreement and access fee is reasonable and 

consistent with long-standing FAA guidance and precedent on the subject of TTF 

access.15 As stated in FAA Order 5190.6B, the FAA recognizes that an airport sponsor is 

entitled to seek recovery of capital and operating costs of providing a public use airfield. 

The development of aeronautical enterprises on land off airport and not controlled by the 

sponsor can result in an economic competitive advantage for the “through-the-fence” 

operator to the detriment of on-airport tenants. To equalize this imbalance, the sponsor 

should obtain from any off-base enterprise or entity a fair return for its use of the airfield 

by assessing access fees from those entities having “through-the-fence” access. In this 

case, the Board has set the access fee at $500 or suitable in-kind services.16

The Director notes that while the Board’s lease agreement format may be overly broad 

when granting airport access rights rather than a leasehold, the Respondent is not at fault 

by being too demanding upon the Complainant.17 To sustain an alleged unreasonable 

application would require the Board to actually apply an inapplicable term. This has not 

occurred. The Director has taken in consideration that (1) the Complainant is not 

alleging that the Board has been too permissive with TTF access; (2) this is a newly 

obligated airport sponsor; and (3) the Board is attempting to move in a more documented, 

formal business-like direction with regard to its relationship to its users. Accordingly, the 

Director declines to find fault with the issue of the Board’s casual business practices in 

this proceeding, but does expect the Board to work to understand its Federal obligations 

and to conduct its airport operations in a more business-like manner. 

Considering the above, the Director finds that the Board is not in violation of grant 

assurance 23, Exclusive Rights. 

VII. FINDINGS and CONCLUSIONS 

It is again important to note that as a general principal, the FAA does not support agreements 

that grant access to the public landing area by aircraft stored off-site on adjacent property. 

Through-the-fence arrangements are disfavored by the FAA and can place an encumbrance 

upon the airport property. Thus reducing the airport’s ability to meet its Federal obligations. 

Accordingly, under its grant assurances, the Board is free to act to limit, mitigate, or 

eliminate the effects of TTF access. [See JetAway II, DD] 

 

15 The FAA recognizes that the Complainant tries to distinguish this situation from prior issues in which the 

FAA has opposed residential TTF access. [FAA Exhibit 1, Item 7, p. 5, fn. 2] However, the policy and 

precedent with regard to TTF access is applicable to residential and non-residential; commercial and noncommercial. The FAA is more opposed to commercial or residential TTF access than simple hangar 

storage TTF access. But it remains opposed for the reasons discussed herein. 16 The airport sponsor may assess any level of fee it deems appropriate for “through-the-fence” operators so 

long as that fee is not less than the comparable fee paid by on-airport tenants. [See FAA Order 5190.6B] 17 It is not uncommon for inapplicable lease provisions to be stricken during the course of reasonable lease 

negotiations. 

Page 19 of 20 
FAA Docket No. 16-09-01 Director’s Determination 

In a time of transition, such as here, the standard of compliance does not require that 

airport sponsors enforce standards so rigidly as to require identical tone and posture 

toward all competitors that have different records and history with the sponsor. [See Rick 

Aviation v Peninsula Airport Commission, FAA Docket No. 16-05-18 (May 8, 2007) 

(Director’s Determination) p. 16] However, the Board should continue to professionalize 

and formalize its business practices, as well as to increase the Board’s ability to be as 

financially self-sustaining as possible. 

Upon consideration of the submissions and responses by the parties, the record herein, 

applicable law and policy, and for the reasons stated above, the Director of the FAA 

Office of Airport Compliance and Field Operations finds and concludes that the Board is 

not currently in violation of grant assurance 22, Economic Nondiscrimination; or 23, 

Exclusive Rights. 

 

ORDER

Accordingly, it is ordered that: 

1. The Complaint is dismissed. 

2. All Motions not expressly granted in this Determination are denied. 

RIGHT OF APPEAL 

This Director’s Determination, FAA Docket No. 16-09-01, is an initial agency 

determination and does not constitute a final agency decision and order subject to judicial 

review. [14 CFR § 16.247(b)(2)] A party to this proceeding 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. 

 

 Date: December 17, 2009

Randall S. Fiertz 

Director, Office of Airport Compliance 

 and Field Operations 

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