o 

U.S. Department office of Airport Compliance 800 Independence Ave., SW. 

of Transportation and Field Operations Washington, DC 20591 

Federal Aviation 

Administration 

FEB 2 2 2010 

Certified Mail - Return Receipt 

Rebecca E. Dupuis 

Nathan A. Hall 

Shumaker, Loop & Kendrick, LLP 

North Courthouse Square 

1000 Jackson Street 

Toledo, OH 43604 

Edward W. Sauer 

Charles F. Donley, II 

Squire, Sanders & Dempsey L.L.P. "5 

1201 Pennsylvania Avenue, NW ^ 

Washington, DC 20004 -,1^; 

Robert J. Triozzi : ^^ 

City of Cleveland Department of Law En 

601 Lakeside Avenue, Room 106 ^ 

Cleveland, OH 44114 Z § 

Dear Ms. Dupuis and Messrs. Hall, Sauer, Donley, and Triozzi: 

Re: Drake Aerial Enterprises, LLC, d/b/a Air America Aerial Ads and James Miller v. City of Cleveland, 

FAA Docket No. 16-09-02 

Enclosed is a copy of the determination of the Federal Aviation Administration (FAA) with respect to the 

above-referenced matter. 

We find that City of Cleveland, owner and operator of the Burke Lakefront Airport, is not currently in 

violation of its federal obligations regarding unjust economic discrimination as set forth in its airport 

grant assurances and existing federal statutes with respect to this complaint. 

Accordingly, the above-referenced matter is dismissed. 

The reasons for dismissal are set forth in the enclosed Director's Determination. 

Sincerely, 

Randall S. Fiertz 

Director, Office of Airport Compliance 

and Field Operations 
CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on ^- ^ .^j<^0/ o , I caused to be placed in the United 

States mail (first class mail, postage paid), a true copy of the foregoing document addressed to: 

Rebecca E. Dupuis 

Nathan A. Hall 

Shumaker, Loop & Kendrick, LLP 

North Courthouse Square 

1000 Jackson Street 

Toledo, OH 43604 

Covmsel for Complainant 

Edward W. Sauer 

Charles F. Donley, II 

Squire, Sanders & Dempsey L.L.P. 

1201 Pennsylvania Avenue, NW 

Washington, DC 20004 

Robert J. Triozzi 

City of Cleveland Department of Law 

601 Lakeside Avenue, Room 106 

Cleveland, OH 44114 

Counsel for Respondent 

Hand Delivered to: 

Part 16 Airport Proceedings Docket 

Ajnne Torgerson O 

Office of Airport Compliance and 

Field Operations 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

Drake Aerial Enterprises, LLC 

d/b/a Air America Aerial Ads and 

James Miller 

COMPLAINANT 

City of Cleveland 

RESPONDENT 

Docket No. 16-09-02 

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'. 

James Miller, the sole member and primary operator of Drake Aerial Enterprises, LLC d/b/a Air 

America Aerial Ads (Complainant), filed a formal Complaint pursuant to 14 CFR Part 16 against 

the City of Cleveland (City or Respondent), sponsor and operator of Burke Lakefront Airport 

(Airport or BKL). The Complainant alleges the Respondent denied its request to conduct barmer 

towing operations from BKL. Specifically, the Complainant alleges the City is in violation of 49 

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

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 in violation of its Federal obligations at this time. 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. 

' 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 PR 53998, October 16, 1996) and became effective on December 16, 1996. 
II. PARTIES 

The Complainant, James Miller, is the sole member and primary operator of Drake Aerial 

Enterprises, LLC d/b/a Air America Aerial Ads. [FAA Exhibit 1, Item 2, ^3] He is currently 

authorized by the FAA to conduct banner towing operations. [FAA Exhibit 1, Item 2, exhibit L, 

p. 9] 

Burke Lakefront Airport (Airport) is a public-use airport ovvTied and operated by the City of 

Cleveland, Ohio. The Airport, one nautical mile north of Cleveland, is classified as a general 

aviation reliever airport with 44 based aircraft and 84,101 annual operations. The Airport has 

two nmways and an air traffic control tower. [FAA Exhibit 1, Item 2, exhibit D] The planning 

and development of the Airport has been financed, in part, with funds provided by the FAA 

imder 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 City has 

accepted $4,869,329 in Federal AIP grants for BKL. [FAA Exhibit 1, Item 10] 

III. BACKGROUND AND PROCEDURAL HISTORY 

Factual Background 

In 1996, the Complainant began towing banners from BKL pursuant to a verbal agreement. 

[FAA Exhibit 1, Item 2, |7] This continued until March of 1999 when the Respondent advised 

the Complainant that a new Instrument Landing System^ precluded the use of the banner set-up 

area. [FAA Exhibit 1, Item 2, TI9] In May of 2000, the Respondent invited the Complainant to 

resume baimer towing operations at BKL on the condition that the two parties enter into a 

concession agreement. [FAA Exhibit 1, Item 2, ^10] The Complainant foimd certain terms 

contained in the agreement to be "excessive, unreasonable, and intended to prevent banner 

towing operations" at BKL, and declined to enter into the agreement. [FAA Exhibit 1, Item 2, 

112] 

On October 21, 2008, the Complainant's attorney advised the Respondent of the Complainant's 

desire to resume banner towing operations at BKL. [FAA Exhibit 1, Item 2, ^13] In an 

electronic message dated October 27, 2008, the Respondent advised the Complainant's attorney 

that the "FAA has approved banning baimer towing operation (sic) at Burke Lakefi-ont Airport as 

indicated in the Airport Master Record and Airport Facility Directory." [FAA Exhibit 1, Item 2, 

^14 and FAA Exhibit 1, Item 2, exhibit G] After confirming these notations, the Complainant's 

attorney contacted the FAA's Detroit Airport District Office (ADO) to determine their validity. 

[FAA Exhibit 1, Item 2, f 15 and 16] The Detroit ADO advised the Complainant's attorney that 

these notations were non-binding and not necessarily endorsed by the FAA. [FAA Exhibit 1, 

Item 2,1117 and 18] 

On January 22, 2009, the Complainant's attorney wrote to the Respondent reiterating the 

Complainant's desire to resume baimer towing operations at BKL and provided a map proposing 

five possible set-up locations at BKL. [FAA Exhibit 1, Item 2, \2Q and FAA Exhibit 1, Item 2, 

2 An Instrument Landing System or ILS is a navigational aid is designed to provide an approach path for exact 

alignment and descent of an aircraft on fmal approach to a runway. [Aeronautical Information Manual, effective 

February 14,2008, at 1-1-7] 
exhibit I] On February 18, 2009, the Respondent advised the Complainant's attorney that City 

was reviewing this information. [FAA Exhibit 1, Item 2, ^21 and FAA Exhibit 1, Item 2, exhibit 

J] On February 24, 2009, the Respondent requested and the Complainant provided copies of the 

Complainant's Banner Towing Certificate of Operation. [FAA Exhibit 1, Item 2, ][22 and 23 and 

FAA Exhibit 1, Item 2, exhibits K and L] 

On March 13, 2009, the Respondent advised the Complainant that its request to conduct banner 

towing operations at BKL was denied. The Respondent cited its ability to comply with 14 CFR 

Part 91.155^ as its reason for the denial. [FAA Exhibit 1, Item 2, f25 and FAA Exhibit 1, Item 2, 

exhibit N] On March 25, 2009, the Complainant's attorney advised the Respondent of their 

decision to draft a formal Complaint, and the Respondent advised that their position remained 

the same as stated on March 13, 2009. [FAA Exhibit 1, Item 2, TI26 and FAA Exhibit 1, Item 2, 

exhibit O] 

Procedural History 

On April 16, 2009, FAA received the Complaint. [FAA Exhibit 1, Item 2] 

On April 22, 2009, FAA docketed Drake Aerial Enterprises, LLC d/b/a Air America Aerial Ads 

and James Miller v. City of Cleveland. [FAA Exhibit 1, Item 3] 

On May 13, 2009, the parties jointly requested the Respondent have additional time to file its 

answer. [FAA Exhibit 1, Item 4] 

On May 15, 2009 FAA's Office of Chief Counsel granted the Respondent an extension to May 

26, 2009. [FAA Exhibit 1, Item 5] 

On May 26, 2009, the Respondent filed an Answer. [FAA Exhibit 1, Item 7]. 

On June 8, 2009, the Complainant replied. [FAA Exhibit 1, Item 8] 

On June 22, 2009, the Respondent filed a rebuttal. [FAA Exhibit 1, Item 9] 

On August 27, 2009, the FAA requested additional information from the Respondent. [FAA 

Exhibit 1, Item 11] 

On September 8, 2009, the Respondent provided additional information requested by the FAA. 

[FAA Exhibit 1, Item 12] 

On October 19, 2009, the FAA extended the due date of the Director's Determination to on or 

before December 31, 2009. [FAA Exhibit 1, Item 13] 

^ The Respondent's denial references 14 CFR Part 91.155, but quotes from an Information guide for banner tow 

operations (FAA/FS-I-8700-1, p. 4-1). The Respondent quotes, "Banner pickup and (sic) banner drop should be in 

a predesignated (sic) area not closer than 500 feet to taxiways, runways, persons, buildings, parked automobiles, 

and other aircraft whenever possible. " This publication states, "Banner pickup or banner drop should be in a predesignated area not closer than 500 feet to taxiways, runways, persons, buildings, parked automobiles, and other 

aircraft whenever possible." 14 CFR Part 91.155 is titled Basic VFR weather minimums and is not specific to 

banner tow operations. 
On December 23, 2009, the FAA extended the due date of the Director's Determination to on or 

before January 15, 2010. [FAA Exhibit 1, Item 15] 

On January 15,2010, the FAA extended the due date of the Director's Determination to on or 

before February 5, 2010. [FAA Exhibit 1, Item 16] 

On February 2, 2010, the FAA extended the due date of the Director's Determination to on or 

before February 19, 2010. [FAA Exhibit 1, Item 17] 

IV. ISSUES 

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

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

complete review of the City's compliance with applicable Federal law and policy: 

• Whether the Respondent's failure to approve the Complainant's request to conduct 

banner towing operations constitutes an imreasonable denial of access in violation of 

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

• Whether the Respondent's conditions for approval of banner towing operations at BLK 

unreasonably deny access to the Complainant or imjustly discriminate against the 

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

Nondiscrimination. 

V. APPLICABLE LAW AND POLICY 

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

programs for providing federal fimds and other assistance to local commimities for the 

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

vsfith 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. 

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.'* 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 fimctions 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 24, Fee and Rental 

Structure. 

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 tmjustly discriminatory conditions as a potential 

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 

•* 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(1), 47111(d), 47122. 
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. 

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. " 

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 

Order5190.6B,T|14.3.] 

FAA Order 5190.6B describes the responsibilities imder 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 maimer 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 imjust discrimination. \See FAA Order 

5190.6B, Sec.1f9.1.(a)] 

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. 

Moreover, the FAA Order 5190.6B states that the owner or sponsor's obligation to make an 

airport available for public use does not preclude the ovmer or sponsor from recovering the cost 

of providing the facility. The owner or sponsor is expected to recover its costs through the 

establishment of fair and reasonable fees, rentals, or other user charges that will make the airport 

as self-sustaining as possible under the circumstances existing at the particular airport. \See 

FAA Order 5190.6B, tl2.2.b. and 117.5.] 

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 enstire 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 persormel in carrying out the FAA's responsibilities for 

ensuring airport compliance. It provides basic guidance for FAA persormel 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 fimds 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 

applicable federal obligations. Consequently, the FAA will consider the successfiil 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 fiilly 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, 12.8.(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 commimities for the development of 

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

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

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

with specified conditions. Commitments assimied 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 docimients 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 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)] 

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

submit all docimients 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-d), 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 fiirther 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 

The FAA's Office of Airport Compliance and Field Operations (ACO) does not mediate or 

arbitrate negotiation disputes between airport sponsors and potential business proponents 

concerning issues outside the scope of the Part 16 process and a sponsor's Federal Grant 

Assurances. Rather, ACO enforces contracts between an airport sponsor and the Federal 

government. [See AmAv v. Maryland Aviation Administration, FAA Docket No. 16-05-12, 

(March 20, 2006) (Director's Determination), at 23] 

During the course of this formal proceeding, negotiations between the Complainant and the 

Respondent continued. Where applicable, the Director wall turn to the Respondent's last offer or 
10 

final negotiating posture to make a determination regarding its compliance with its Federal 

obligations. 

Issues Identified for Analysis and Discussion 

Issue 1: Whether the Respondent's failure to approve the Complainant's request to conduct 

banner towing operations constitutes an unreasonable denial of access in violation of 49 U.S.C. 

§ 47107(a)(1) and Grant Assurance 22, Economic Nondiscrimination. 

The Complainant states: 

"Respondent has unjustly discriminated against Mr. Miller and Air America by 

prohibiting them from accessing the federally funded Burke Lakefront Airport. " 

[FAA Exhibit 1, Item 2, T|35-A.] 

The Respondent answers: 

"This proceeding no longer involves the prospect of denial of access to a banner 

towing operator proposing to commence service at Burke Lakefront Airport 

('BKL ). [FAA Exhibit 1, Item 7, p. 1] 

"The Respondent has reviewed its position and has developed a plan that will 

provide reasonable access to Complainants for their banner towing operations 

while not impairing the safety or efficiency of BKL. " [FAA Exhibit 1, Item 7, p. 

2] 

The Record clearly supports that on March 13, 2009, the Respondent denied the Complainant's 

request to begin barmer towing operations at the Airport. [FAA Exhibit 1, Item 2, exhibit N] 

The Record also describes the Respondent's attempts to establish a blanket ban on this type of 

aeronautical activity.^ [FAA Exhibit 1, Item 2, exhibits D, G, and H] However, in its Answer to 

the Complaint, the Respondent adopts a new position and proposes a plan to accommodate the 

Complainant and other prospective banner towing operators.^ [FAA Exhibit 1, Item 7] 

Despite the Respondent's plan to provide access to Complainant, in its Reply, the Complainant 

argues that: 

^ Aerial advertising is defmed as an aeronautical activity. An aeronautical activity is "any activity that involves, 

makes possible, or is required for the operation of aircraft or that contributes to or is required for the safety of such 

operations." [FAA Order 5190.6B, Appendix Z] 

* The City states it will accommodate the Complainant and other prospective banner tower operations. Accordingly, 

the Director assumes the City will, if it has not already done so by time of this Decision's issue, promptly update its 

Airport Master Record (FAA Form 5010-1) to delete the outdated notation that banner towing activities are 

prohibited at the airport. Failure to update FAA Form 5010-1 may create the impression that the airport is not in 

fact open to banner towing operations. At best, the intentional failure to update FAA Form 5010-1 outright 

discourages banner towing operations at an airport that professes to be open to such operations. Consequently, these 

impressions combined with the failure to update the Airport Master Record may trigger additional Part 16 

complaints by third parties or a separate FAA investigation pursuant to 14 CFR Part 16 §101. 
11 

"Air America has not yet been given access to Burke Lakefront to conduct its 

banner tow operations. Accordingly, the City continues to violate its federal 

grant assurances and judgment should be issued in favor of Air America. " [FAA 

Exhibit 1, Item 8, pp 3-4 and FAA Exhibit 1, Item 7, exhibit A, f4]. 

The Complainant fiirther argues that the terms offered by the Respondent are so unreasonable 

that access is still effectively denied.^ 

Despite the Complainant's arguments, the Record indicates that Respondent has assumed a 

compliance posture. The Respondent states: 

"Respondent has offered and is prepared to pursue entering into a short term 

agreement under an existing Codified Ordinance to allow for 60 cumulative days 

of banner towing while it pursues permanent legislation to authorize and regulate 

banner towing and associated fees at Burke. " [FAA Exhibit 1, Item 7] 

Grant Assurance 22 requires the Respondent to make the Airport available as an airport on 

reasonable terms. However, it does not guarantee any particular individual aeronautical user 

access to the airport on whatever terms that user may desire. [See_ 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 19 and 

Pacific Coast Flyers. Inc., Donnya Daubnev d/b/a Carlsbad Aircraft Pilot Supply, and Roger 

Baker v. County of San Diego. California. FAA Docket No. 16-04-08, (July 25, 2005) 

(Director's Determination) at 31] A potential aeronautical service provider can agree to the 

stated terms, negotiate different terms, or raise questions regarding the reaspnableness of said 

terms. Until there is a meeting of the minds regarding how an aeronautical service will be 

offered to the public, allowing that service to commence creates some risk for the airport 

operator. Such an arrangement could diminish the Respondent's proprietary right to manage the 

Airport generally in the public's interest in aviation and as an ongoing concern. Additionally, it 

could give rise to future complaints of dissimilar treatment. The FAA understands the 

Respondent's reluctance to engage in what it might perceive to be a risky business practice. As 

such, Grant Assurance #19, Operation and Maintenance, affords the Respondent some discretion 

with regard to these types of management decisions. 

The Complainant also asserts that the Respondent's new position does not remedy its past 

discrimination and should have no bearing on the Complaint. [FAA Exhibit 1, Item 8, pp 4-5] 

However, this claim is not consistent with the standard of compliance used by the FAA. The 

FAA considers the successful action by the airport sponsor to cure any alleged or potential past 

violation of its grant assurances to be grounds for dismissal of such allegations. (See Wilson) 

The FAA policy and citation to Wilson are commonly included in Part 16 decisions and speak to 

the import of current compliance. [See Clarke v. City of Alamogordo, FAA Docket No. 16-05-

19 (September 20, 2006) (Director's Determination), at 11; Ingram v. Port of Oakland, FAA 

Docket No. 16-03-12 (April 7, 2006) (Final Decision and Order), at 21: Roadhouse Aviation v. 

City of Tulsa. FAA Docket No. 16-05-08 (December 14, 2006) (Director's Determination), at 

' The Director will fully discuss the reasonableness of the Respondent's proposed plan under Issue #2. 
12 

31; and, Atlantic Helicopters Inc./Chesapeake Bay Helicopters v. Monroe County, Florida, FAA 

Docket No. 16-07-12 (September 11, 2008) (Director's Determination), at 26] FAA Airports' 

compliance policy is directed at ensuring 'current compliance' and also 'voluntary compliance.' 

The grant assurances serve to protect the public's interest in civil aviation and achieve 

compliance with Federal law. Therefore, the goal of the FAA's Compliance Program is to 

benefit aviation users through the voluntary compliance of airport sponsors. These concepts are 

central to the FAA's Compliance Program. However, the Complainant ultimately misinterprets 

this mission in its request for relief. The Complaint requests that the FAA not only compel the 

Respondent to provide immediate access to the Airport for the purpose of baimer towing, but 

also seeks to terminate the sponsor's eligibility for Federal investment.^ [FAA Exhibit 1, Item 2, 

TI46] The Director believes this misconception should be clarified to assist the Complainant in its 

understanding of the FAA Compliance Program as well as relief available through the Part 16 

complaint process. The FAA generally takes punitive compliance actions, such as withholding 

funds under 49 U.S.C. § 47114, when reasonable efforts have failed to achieve voluntary 

compliance. [See FAA Order 5190.6B ]I2.4.(a.)] This is because aviation users receive direct 

benefits from the Federal investments made at public use airports via grants from the FAA to 

airport sponsors. The FAA's decision to withhold these funds can potentially deprive 

aeronautical users of the benefit of capital improvements which may enhance safety or expand 

capacity. Such a decision is not made lightly, and this action is not used to penalize sponsors 

who may have unknowingly breached their commitments, but corrected past errors after 

becoming aware of their full obligations. 

The concept of voluntary compliance also voids the Complainant's argument that "a proposal" 

made in the Respondent's Answer is still a denial of access. The Complainant argues that the 

FAA must find the Respondent to be in noncompliance due to the timing of its offer to 

accommodate the Complainant. The Complainant concludes this argument stating: 

"The City's late attempts to remedy its egregious behavior by making 

unreasonable proposals to Air America do not resolve the issue before the FAA. " 

[FAA Exhibit 1, Item 8, p. 5] 

The Director disagrees. The Respondent proposed to accommodate the Complainant's proposed 

aeronautical activity. [FAA Exhibit 1, Item 7] Provided the terms are reasonable (See Issue 2 

below), the Respondent's voluntary compliance would have fully cured the initial allegation of 

denial of access contained in the Complaint. When both parties continue to negotiate their 

differences during the pleading stage of a Part 16 investigation, the Director will consider the last 

offer or negotiating posture taken by the Respondent as reflected in the Record (i.e., to permit 

banner towing operations at BKL). [FAA Exhibit 1, Item 7 and Item 9] This is because the 

FAA's primary role in this Part 16 investigation is to determine if the airport sponsor is currently 

acting in a manner consistent with its Federal obligations. 

The Complainant also requests the FAA "Issue an Order that Respondent pay for Complainants' attorneys' fees 

and costs associated with filing this Complaint". [FAA Exhibit 1, Item 2, |46] The FAA's Part 16 airport 

enforcement proceeding is an administrative proceeding designed to determine an airport sponsor's compliance with 

its Federal obligations. It does not create a right of private action. Accordingly, there is no mechanism for making 

complainants whole or awarding damages. 
13 

The Director also rejects the Complainant's assertion that absent its filing of this Complaint, "the 

City's discrimination against baimer tow operators may have continued indefinitely." [FAA 

Exhibit 1, Item 8, p. 4] While possible, this claim is speculative. First, under 14 CFR Part 13.1, 

any person who knows of a violation of Federal aviation laws, regulations, rules, policies, or 

orders may report the violation to the FAA informally. The Record contains nothing to suggest 

that the Complainant sought the FAA's assistance through an informal complaint. The 

Complainant made the decision to file a formal complaint under 14 CFR Part 16 after 

approximately six months of negotiations with the Respondent. The Complainant then 

proceeded to continue negotiating with the Respondent after the Complaint was docketed by the 

FAA. Secondly, the Respondent developed a plan to accommodate the Complainant's proposal 

as well as other fiiture barmer towing operations. [FAA Exhibit 1, Item 7, p. 2] 

The fact that the Respondent has proposed to develop a plan to accommodate banner towing 

operations at the Airport, including a short term agreement to grant interim access, demonstrates 

its understanding of its Federal obligations.'" As such, this posture corrects any past allegations 

of noncompliance. Therefore, the Director finds the Respondent is not in violation of 49 U.S.C. 

§ 47107(a)(1) and Grant Assurance 22, Economic Nondiscrimination with regard to denial of 

access. 

Issue 2: Whether the Respondent's conditions for approval of banner towing operations at BLK 

unreasonably deny access to the Complainant or unjustly discriminate against the Complainant 

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

In its Answer, the Respondent proposed nine terms to accommodate the Complainant's request 

to re-establish its banner towing business at Burke Lakefront Airport. [FAA Exhibit 1, Item 7, 

pp 2-5] The Complainant, in its Reply, specifically objected to three of these terms. The 

Complainant states: 

"... certain aspects of the proposal are entirely unreasonable and are included to 

discourage banner towers from operating at Burke Lakefront. By including such 

terms, the City is attempting to make access burdensome, expensive, and 

impractical for Air America and other banner tow operators. " [FAA Exhibit 1, 

Item 8, p. 5] 

Specifically, the Complainant objected to the following three facets of the Respondent's plan: 

the proposed locations for banner towing activities, contingencies contained in the proposal, and 

the cost. The Director will discuss each issue separately below. 

' Several Part 16 decisions address circumstances where lengthy, ongoing negotiations are construed as a denial of 

access under Grant Assurance 22. [See Centennial Express Airlines. Golden Eagle Charters, d/b/a Centennial 

Express Airlines v. Arapahoe County Public Airport Authority. FAA Docket No. 16-98-05, (August 21, 1998) 

(Director's Determination) at 27 (a delay in excess of 16 months and still pending at the time of the Director's 

Determination): United States Construction Corporation v. City of Pompano Beach. Florida. FAA Docket No. 16-

00-14, (July 10, 2002) (Final Agency Decision) at 18-19 (a delay over a year); and Jim Martyn y. Port of Anacortes. 

FAA Docket No. 16-02-03, (April 14, 2003) (Director's Determination) at 31 (a delay of three years). This is not 

the case here. 

'" See Foomote 6. 
14 

Proposed Locations for Banner Towing Activities 

In its Answer, the Respondent proposes to accommodate the Complainant and other future 

baimer towing operators at two locations. [FAA Exhibit 1, Item 7, pp 2-3] The first site is 

located on the northeast comer of the Airport's property. [FAA Exhibit 1 Item 7, exhibit A] The 

second site is located on land north of the Airport's perimeter road on property controlled by the 

Army Corps of Engineers. [FAA Exhibit 1, Item 7, p. 3] In its Reply, the Complainant objects 

to both locations. The Complainant states that the first site is unsuitable: 

"Because of the close proximity to the north and east dike walls, potential 

complications exist. For example, wind flow or fouled drops could result in a 

banner landing in water. The area is unsuitable because it is surrounded by tall 

grass and susceptible to flooding. " [FAA Exhibit 1, Item 8, pp 6-7] 

"The distance between the City's proposed banner tow pick up/drop off and 

hooking area is unreasonable and makes banner tow operations at Burke 

Lakefront Airport impractical, costly, and burdensome. The distance between the 

proposed locations is approximately 1.65 miles. Moreover the proposed areas 

are at the furthermost locations of the airport. " [FAA Exhibit 1, Item 8, Exhibit 

A,p. 1,1|6]. 

The Complainant states that the second site is not a true offer because the City lacks the ability to 

grant access to this land. [FAA Exhibit 1, Item 8, p. 6] 

The Director has reviewed the statements and opinions of both parties. However, for the purpose 

of making a final determination on reasonableness when aviation safety is at issue, FAA safety 

determinations pursuant to the Federal Aviation Regulations take precedence over any airport 

sponsor views or local ordinances pertaining to safety. [See Skydive Paris Inc. v Henry County. 

Tennessee, FAA Docket No. 16-05-06, (January 20, 2006) (Director's Determination) at 15; 

Florida Aerial Advertising v St. Petersburg-Clearwater International Airport, FAA Docket No. 

16-03-01, (December 18, 2003) (Director's Determination) at 11; and In the Matter of 

Compliance with Federal Obligations by the City of Santa Monica, California, FAA Docket No. 

16-02-08, (July 8, 2009) (Final Agency Decision)] This is especially true when the Director is 

asked to make a determination regarding a sponsor's compliance with its Federal obligations in 

cases where restrictions or limitations are instituted in the interest of safety. Under 49 U.S.C. § 

40103, the FAA, on behalf of the United States, preempts flight safety, flight management, and 

the control of navigable airspace. 

The Director's determination is guided by FAA Order 5190.6B which states: 

"The Associate Administrator for Airports, working in conjunction with Flight 

Standards and/or the Air Traffic Organization, will carefully analyze supporting 

data and documentation and make the final call on whether a particular activity 

can be conducted safely and ejficiently at an airport. In all cases, the FAA is the 
16 

Figure 1 FAA conducted banner tow demonstration flights from Areas 1 and 2. FAA was not able to 

conduct banner tow demonstration flights from Area 3 as it will require mowing before it can used. 

Contingencies Contained in the Proposal 

In its Answer, the Respondent states: 

"Final arrangements with banner towing operators would be subject to the 

approval of the Director of Port Control. The Director has reviewed the terms of 

the proposal set forth in Paragraphs 1 through 8 of this Initial Statement, and is 

supportive of them. Certain aspects of these arrangements may also require 

approval by the Cleveland City Council. The Respondent is prepared to submit 

the necessary legislative drafts to the Council once final arrangements for banner 

towing have been fully developed and approved by the Director, and to request 

expeditious approval of them. The Respondent also believes that it may be able to 
16 

3?"-'s*i 

Figure 1 FAA conducted banner tow demonstration flights from Areas 1 and 2. FAA was not able to 

conduct banner tow demonstration flights from Area 3 as it will require mowing before it can used. 

Contingencies Contained in the Proposal 

In its Answer, the Respondent states: 

"Final arrangements with banner towing operators would be subject to the 

approval of the Director of Port Control. The Director has reviewed the terms of 

the proposal set forth in Paragraphs 1 through 8 of this Initial Statement, and is 

supportive of them. Certain aspects of these arrangements may also require 

approval by the Cleveland City Council. The Respondent is prepared to submit 

the necessary legislative drafts to the Council once final arrangements for banner 

towing have been fully developed and approved by the Director, and to request 

expeditious approval of them. The Respondent also believes that it may he able to 
15 

final arbiter regarding aviation safety and will make the determination regarding 

the reasonableness of the sponsor's proposed measures that restrict, 

limit, or deny access to the airport. " [See FAA Order 5190.6B, 1fl4.3.] 

As part of its investigation of these allegations, the FAA initiated a safety study to determine 

whether and how banner tow activities could be safely conducted at the Airport. This study was 

conducted by the Cleveland Flight Standards District Office. It included a review of the 

Airport's layout and airfield configuration and banner tow flight demonstrations. 

On October 5, 2009, the Cleveland Flight Standards District Office, with the support of the 

Burke Lakefront Air Traffic Control Tower staff, conducted several banner tow demonstration 

flights. Airport staff were briefed on the demonstration and invited to observe the flights. A fiill 

review of this demonstration is discussed in a letter" from Thomas J. Leahy, FAA Aviation 

Safety and Principal Operations Inspector, to Thomas T. Schauer, FAA Regional Compliance 

Officer. [FAA Exhibit 1, Item 14]. This letter states: 

"There are three possible sites to conduct Banner towing at KBKL. The two that 

were used for this demonstration were suitable without any improvements. The 

third site which is north and east [sic] the approach end of Runway 24L would 

have required some mowing prior to use and additionally is not visible in its 

entirety from the ATC control tower, but again outside of the ATC movement 

area. 

The Cleveland Flight Standards Office is of the opinion that it is reasonable to 

expect that banner towing could be conducted safely from the Cleveland Burke 

Lakefront Airport (KBKL). " [FAA Exhibit 1, Item 14, p. 3] 

Figure 1 depicts the three possible locations suitable for banner tow activities. 

" A copy of this letter is enclosed to both parties as part of this Determination. 
17 

temporarily permit operations on an interim basis pending action by the City 

Council following approval by the Director. " [FAA Exhibit 1, Item 7, pp 4-5] 

The Complainant states that because the proposal is contingent upon the approval of the Director 

of Port Control and the Cleveland City Council, it cannot be considered a true offer of access and 

is merely a delay tactic. The Complainant also expresses concern that if either the Director of 

Port Control or the City Council refiise to agree to the proposal, the Respondent may continue to 

deny access. Lastly, the Complainant argues "that approval by the City Council is entirely 

unnecessary." [FAA Exhibit 1, Item 8, pp 5-6] 

In its Rebuttal, the Respondent reiterates its offer to the Complainant and notes that it is 

supported by the Director of Port Control. [FAA Exhibit I, Item 9, p. 9] The Respondent 

concludes stating: 

"Respondent has offered and is prepared to pursue entering into a short term 

agreement under an existing Codified Ordinance to allow for 60 cumulative days 

of banner towing while it pursues permanent legislation to authorize and regulate 

banner towing and associated fees at Burke. " [FAA Exhibit 1, Item 9, p. 10] 

Grant Assurance 22 requires an airport sponsor to operate its facility for the use and benefit of 

the public on reasonable terms and without unjust discrimination. However, Grant Assurance 22 

does not void an airport sponsor's proprietary rights to establish a process for determining 

whether or not potential aeronautical service providers are qualified to conduct business on the 

airport before granting such access. In order to objectively guide these decisions in a 

nondiscriminatory maimer, the FAA recommends airport sponsors develop minimum standards. 

[FAA Order 5190.6B, Til 0.2.] 

To better understand the Respondent's process for reviewing and approving new aeronautical 

businesses at Burke Lakefront Airport, the Director asked the Respondent to describe its process 

or provide a copy of the minimum standards in which it is outlined. The Director specifically 

asked the Respondent to "describe the approval process the City used when reviewing the most 

recently accepted aeronautical business at the Airport." [FAA Exhibit 1, Item 11] 

The Respondent's response to this request for additional information noted that there are no 

minimum standards at the Airport. [FAA Exhibit 1, Item 12, p.3] It explained a four-step 

process whereby the Airport staff works with the interested party to develop a letter of intent 

describing the terms of its proposed operation. The letter of intent is then submitted to the 

Director of Port Control for approval. Upon approval by the Director of Port Control, Airport 

staff works wdth the City's Law Department to prepare draft legislation for approval by the City 

Council. This legislation is merely authorization for the Respondent to enter into a long-term 

contract. Once the City Council approves the legislation, the Law Director then prepares a lease 

or other concession agreement which is signed by the aeronautical service provider and the 

Airport Director. [FAA Exhibit 1, Item 12, p. 2] In the interim, the City can provide a 

temporary approval which permits parties to perform up to 60 cumulative days of operations 

while awaiting legislative approval. [FAA Exhibit 1, Item 12, p. 3] 
18 

With regard to the Complainant's proposal, the Respondent did note one distinction: 

"In most cases, legislation approving the proposed operation is all that is 

required. In the case of Drake, the legislation will also need to authorize banner 

towing operations for all interested parties at the Airport. This is not expected to 

affect the timing of legislative action. " [FAA Exhibit 1, Item 12, p. 2] 

The Respondent explained how this process was applied to its most recently accepted 

aeronautical business as: 

"Premier Flight Academy ('Premier), a flight training school, is the business 

that was most recently accepted as an aeronautical business at the Airport. The 

approval process described in response to the FAA 's first inquiry above was used 

for Premier's operation. In response to the FAA 's specific questions [FAA asked 

the City to describe the approval process it used when reviewing the most recently 

accepted aeronautical business at the Airport], Premier was required to obtain the 

approval of the Director of Port Control for its operation at the Airport. It was 

also necessary to obtain legislative approval for that operation from the 

Cleveland City Council. The approval process required approximately four 

months. An agreement was signed with Premier on July 15, 2009. Premier did 

not seek interim approval to inaugurate its operations at an earlier time. " [FAA 

Exhibit 1, Item 12, p. 3] 

Generally, the FAA will not substitute its judgment for that of the airport sponsor in matters of 

administration. [See FAA Order, 5190.6B, t2.4.b] Therefore, in determining whether or not the 

Respondent's contingencies are reasonable, the Director will consider its attainability and 

analyze if it might result in an unreasonable delay in granting access. The Respondent claims 

this same approval process resulted in an agreement with Premier Flight Academy. [FAA 

Exhibit 1, Item 12, p. 3] In its Reply, the Complainant only speculates that this process might 

result in a denial of access. [FAA Exhibit 1, Item 8, pp 5-6] This does not meet the burden of 

proof, and the Director does not find this process to be so restrictive that it is unattainable. With 

regard to the second test, the Respondent notes that the City must provide its approval for both 

the Complainant's business proposal as well as the activity of banner towing. It appears that the 

Respondent envisions similar requests from other prospective baimer towers and seeks to 

position itself to act on the merits of those proposals as well. By ensuring that other providers of 

this same service have equal access to the approval process, the Respondent avoids inadvertently 

treating similarly situated parties in a discriminatory maimer. While the Director notes the 

approval process may be cumbersome, based on the Record, it does not appear to be 

unreasonable. Moreover, the Complainant has submitted no documentation to establish any 

alternative type of business approval process used at the Airport. 

Additionally, the Director finds that this approval process is not being used in an unjustly 

discriminatory manner. Although the Complainant's request is distinguished by the City's need 

to approve the aeronautical activity itself, the Director believes the analysis provided by the 

Cleveland Flight Standards District Office will assist the City in developing the appropriate 
19 

legislation. Lastly, the Respondent has agreed to provide the Complainant with interim access 

while the approval process is completed. 

While the Director cannot predict whether or not the Port Director or the Cleveland City Council 

will approve the Complainant's request, the FAA has identified where banner tow activities can 

be safely conducted at Burke Lakefront Airport. As a result, fiiture efforts to unreasonably 

prohibit or further limit this aeronautical activity may be construed as inconsistent with the 

City's Federal obligations. 

Cost 

In its Answer, the Respondent proposes to initially charge the Complainant $20 per banner 

towed. In addition, the Complainant would be required to pay any other applicable charges for 

use of the Airport's facilities, such as landing and takeoff fees. [FAA Exhibit 1, Item 7, pp 3-4] 

The Complainant objects to this arrangement stating: 

" ...the proposed banner tow fees are unreasonable and an attempt to discourage 

banner tow operators from utilizing Burke Lakefront Airport. Moreover, use of 

the word 'initial' indicates a possibility that fee structure may be increased in the 

future. Any increase in fees would make banner towing at Burke Lakefront not 

economically feasible. " [FAA Exhibit 1, Item 8, p. 7] 

The Complainant argues that because the City currently lacks an established fee arrangement for 

banner tow operators, it should adopt rates assessed by similarly situated airports in the region. 

[FAA Exhibit 1, Item 8, p. 8] While the Director realizes that this methodology for establishing 

aeronautical rates and charges is commonly used within the general aviation community, this 

approach may not accurately reflect airport sponsors' airfield costs. Grant Assurance 24, Fee 

and Rental Structure, requires an airport sponsor to maintain a fee and rental structure which will 

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

airport. This is best achieved through the use of a rate-setting methodology which quantifies 

airfield costs and services currently in use and establishes charges linked to those costs. [See 

Robert Kihlstrom v Port of Orcas. Washington State. FAA Docket No. 16-02-07, (September 1, 

2004) (Director's Determination) at 25] Federal law does not prescribe a single approach to ratesetting; airports may utilize their preferred methodology as long as that methodology is applied 

consistently to similarly situated aeronautical users and conforms to other requirements outlined 

in the FAA's Rates and Charges Policy. [See 61 Fed. Reg 31944, 32019 (Jun. 21,1996) and 

Union Flights, Inc. v. San Francisco International Airport and City & County of San Francisco. 

FAA Docket No. 16-99-11, (February 15, 2000) (Director's Determination) at 15] 

Ordinarily, the FAA will not investigate the reasonableness of a general aviation airport's fees 

absent evidence of a progressive accumulation of surplus aeronautical revenues. [See 61 Fed. 

Reg. 31944, 31997 (Jun. 21, 1996) and Wadsworth Airport Association. Inc. v City of 

Wadsworth and Wadsworth City Council. FAA Docket No. 16-06-14, (August 8, 2007) 

(Director's Determination) at 13-14] The Complainant provides no details regarding the nature 

of Burke Lakefront's aeronautical revenues. Nothing in the Record suggests that the proposed 

$20 per banner towed fee will result in surplus aeronautical revenues. Furthermore, the 
20 

Complainant has not established that the proposed fee exceeds the Respondent's costs for 

providing airfield services and assets currently in use. Instead, the Complainant compares the 

proposed fee to financial arrangements made with other airports where it conducts banner tow 

activities and states, in an affidavit: 

"The City's proposed fee structure is also unreasonable and excessive. The 

proposed fee structure makes operations at Burke Lakefront Airport not 

economically feasible. " [FAA Exhibit 1, Item 8, exhibit A, Tf7] 

The Respondent states that it may incur new maintenance costs and additional administrative 

costs as a result of banner tow activities. Specifically, the Airport will likely be required to clear, 

mow, and maintain an area not presently used. [FAA Exhibit 1, Item 9, p. 7] 

The Respondent is permitted to recover its costs associated with supporting this aeronautical 

activity. [See FAA Order 5190.6B, T|12.2.b.] While the proposed fee may seem unreasonable 

for the Complainant's business plan, the Complainant has not documented that $20 per banner 

towed is inconsistent with the Respondent's Federal obligation to make the airport available on 

fair and reasonable terms. Moreover, it is not the FAA's responsibility to establish airport rates. 

[See JetAway Aviation. Inc. v Montrose County, Colorado and the Montrose County Building 

Authority, FAA Docket No. 16-08-01, (July 2, 2009) (Director's Determination) at 44]. Based 

on the Record before the Director, the $20 per banner towed fee does not appear to be 

unreasonable. 

The Complainant also objects to the possibility that charges for banner towing could be increased 

over time. The Director rejects this argument as speculative. Again, Grant Assurance 24 

requires an airport sponsor to pursue the goal of self-sustainability. Entering into an agreement 

which sets fees in perpetuity could prevent the sponsor from meeting its Federal obligations. In 

fact, the FAA recommends airport sponsors include escalation provisions for periodic 

adjustments when entering into ground leases with terms of five or more years. [See FAA Order 

5190.6B, T|9.5.e.; Wilson at 16; and Aerodynamics of Reading. Inc. v Reading Regional Airport 

Authority, FAA Docket No. 16-00-03, (December 22, 2000) (Director's Determination) at 19-

20] Likewise, the FAA anticipates that airport sponsors will review their leases and airfield 

charges from time to time to ensure its ongoing compliance with Grant Assurance 24 as well as 

its ability to best serve the needs of its aeronautical public as an ongoing concern. [See Wilson at 

16] 

Additionally, the Complainant's argument here prematurely implies a violation of the 

Respondent's Federal obligations. Under 14 CFR Part 16, the Director cannot investigate 

allegations of an airport sponsor's grant assurance violations if the Complainant has not yet been 

harmed. [See 14 CFR Part 16.23] The Respondent may contemplate a fiature action which 

alters its fee schedule. But the issue is not ripe for review until the Complainant is adversely 

affected by it. [See Northwest Airlines, Inc., Delta Airlines, Inc., AirTran Airways, Inc., 

Continental Airlines, Inc., Southwest Airlines, Inc. v Indianapolis Airport Authority, 

Indianapolis International Airport. BAA-Indianapolis., FAA Docket No. 16-07-04, (August 18, 

2008) (Director's Determination) at 28 and 37] 
21 

Summary of Issue Two 

In conclusion, the FAA has identified three locations which are suitable for banner towing 

operations at Burke Lakefront Airport. If the Complainant still desires to begin conducting 

banner tow operations at this Airport, the Complainant should consider the Respondent's offer of 

immediate access under a short term agreement and work with the City on longer term access 

through its administrative process to review and approve new aeronautical businesses at the 

Airport. While this process may be cumbersome, the Director does not find it to be unreasonable 

or unjustly discriminatory. It would not be appropriate for the Director to make findings 

concerning proposed or possible fiiture banner tow fees. 

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 conditional approval of the Complainant's request to conduct banner 

towing operations does not constitute an unreasonable denial of access and is not a 

violation of Grant Assurance 22, Economic Nondiscrimination. 

(2) The Respondent's conditions for approval of banner towdng operations at BLK are not 

sufficiently unreasonable as to deny access or unjustly discriminate against the 

Complainant and do not constitute a violation of Grant Assurance 22, Economic 

Nondiscrimination. 

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. 

Director^ Date 

— , Zofo 

Date 

Office of Compliance and Field Operations 
DRAKE AERIAL ENTERPRISES, LLC d/b/a AIR AMERICA AERIAL ADS 

and 

JAMES MILLER 

CITY OF CLEVELAND 

DIRECTOR'S DETERMINATION 

DOCKET NO. 16-09-02 

Exhibit 1 

INDEX OF ADMINISTRATIVE RECORD 

Item 1 April 16, 2009 Notice of Appearance for Complainant. 

Item 2 April 16, 2009 Complaint filed by Rebecca E. Dupuis and Nathan A. Hall, Attorneys for 

the Complainant, on behalf of Drake Aerial Enterprises d/b/a Air America Aerial Ads and 

James Miller. 

Exhibit A Affidavit of Rebecca E. Dupuis dated April 16, 2009. 

Exhibit B Affidavit of James R. Miller dated April 16, 2009. 

Exhibit C Cleveland Hopkins International Airport fact sheet as published at 

http://www.clevelandairport.eom/site/414/default.aspx and printed on March 25, 2009. 

Exhibit D FAA Form 5010 "Airport Master Record for Burke Lakefront Airport, 

Date: October 27, 2008. 

Exhibit E Proposed Concession Agreement between the City of Cleveland and Air 

America Aerial Ads, Inc. 

Exhibit F October 21, 2008 letter from Complainant's attorney to Burke Lakefront 

Airport. 

Exhibit G October 27, 2008 electronic mail exchange between J. Arnold, Assistant 

Director of Law for the Cleveland Airport System and the Complainant's attorney. 

Exhibit H Airport Facility Directory listing for Burke Lakefront Airport, September 

25, 2008 to November 20, 2008. 

Exhibit I January 22, 2009 letter from Complainant's attorney to J. Arnold, 

Assistant Director of Law for the Cleveland Airport System. 
Exhibit J February 18, 2009 electronic mail from J. Arnold, Assistant 

Director of Law for the Cleveland Airport System to Complainant's attorney. 

Exhibit K February 24, 2009 electronic mail from J. Arnold, Assistant 

Director of Law for the Cleveland Airport System to Complainant's attorney. 

Exhibit L February 24, 2009 electronic mail from Complainant's attorney to J. 

Arnold, Assistant Director of Law for the Cleveland Airport System, Air America Aerial 

Ads' Certificate of Authorization to conduct banner tow operations for February 29, 2008 

through March 1, 2009, and Air America Aerial Ads' Certificate of Waiver for BannerTowing Operations effective February 20, 2009. 

Exhibit M March 10, 2009 letter from Complainant's attorney to J. Arnold, Assistant 

Director of Law for the Cleveland Airport System. 

Exhibit N March 13, 2009 electronic mail from J. Arnold, Assistant Director of Law 

for the Cleveland Airport System to Complainant's attorney. 

Exhibit O March 25, 2009 electronic mail exchange between J. Arnold, Assistant 

Director of Law for the Cleveland Airport System and the Complainant's attorney. 

Exhibit P Complainant's business records for the Cleveland area from 1998 and 

2008. 

Item 3 April 22, 2009 FAA Notice of Docketed Complaint 16-09-02 

Item 4 May 13, 2009 joint request for additional time for Respondent to file its answer 

Item 5 May 15, 2009 letter from the FAA's Office of Chief Counsel to Attorneys for the 

Complainant and Respondent granting the Respondent's extension to May 26, 2009. 

Item 6 May 26, 2009 Notice of Appearance for Respondent. 

Item 7 May 26, 2009 Answer filed by Edward W. Sauer and Charles F. Donley, II, Attorneys for 

the Respondent. 

Exhibit A Map of Burke Lakefront Airport indicating proposed area for banner tow 

operations. 

Item 8 June 8, 2009 Reply filed by Rebecca E. Dupuis and Nathan A. Hall, Attorneys for the 

Complainant. 

Exhibit A Affidavit of James R. Miller dated June 8, 2009. 
Exhibit B Maps of Burke Lakefront Airport indicating proposed areas for banner tow 

operations. 

Item 9 June 22, 2009 Rebuttal filed by Edward W. Sauer and Charles F. Donley, II, Attorneys 

for the Respondent. 

Exhibit A Letter from Lieutenant A. Chonko of the Cleveland Department of Public 

Safety to the Airport Operations Manager dated June 18, 2009. 

Item 10 Airport Improvement Program Grant History of Burke Lakefront Airport. 

Item 11 Request for Additional Information from the Respondent dated August 27, 2009. 

Item 12 September 8, 2009 Reply to Request for Additional Information from Respondent. 

Item 13 Notice of Extension of Time, dated October 19, 2009. 

Item 14 October 14, 2009 letter from T. Leahy, FAA Aviation Safety and Principal Operations 

Inspector, to T. Schauer, FAA Regional Compliance Officer. 

Item 15 Notice of Extension of Time, dated December 23, 2009. 

Item 16 Notice of Extension of Time, dated January 15, 2010. 

Item 17 Notice of Extension of Time, dated February 2, 2010. 
OrteM 11-

O 

,, r. r-. ^ X J^'ightStandards 

U.S. Department Qr^at Northern Tech Park II. 

of Transportation 25249 Country Club Blvd. 

Federar AviaHon North Olmsted, Ohio 44070 

Administration 

October 14, 2009 

Thomas T. Schauer 

FAAAGL-622.1 

2301 University Drive, Bldg. 23B 

Bismarck, ND 58504 

Ph: 701-323-7383 Cell 701-471-0979 

Thomas: 

On October 5'*" the Cleveland FSDO Coordinated a Banner Towing Demonstration at The 

Cleveland Burke Lalcefront Airport (KBKL). 

City of Cleveland Airport Officials in attendance for this Event were as follows; Khalid Bahhur 

Cleveland Burke Airport Commissioner, Daniel Psimer Cleveland Burke Operations 

Superintendent, Cleveland Burke Assistant Director of Law Jack M Arnold. 

Cleveland FSDO Officials in attendance were Kris A. Palcho Operations Supervisor, Thomas J. 

Leahy Aviation Safety and Principal Operations Inspector, and tiie Cleveland FSDO's Subject 

Matter Expert (SME), banner tow Pilot Konrad Balunek, and ground crew Ingrid Balunek. 

After a short Briefing, all in attendance observed the set up of two banners, one at the approach end 

of Runway 24L, and one south of taxiway 'G' and adjacent to taxiway 'B'. Both of these areas are 

outside of the airport ATC ground control movement area and visible from the ATC tower. In order 

to determine suitability, an inspection of the proposed sites was accomplished by me, Dan Psimre, 

Konrad and Ingrid Balunek during the week preceding this event. 

The banner pick up and drop demonstration was observed from different locations on the Burke' 

airport. Kris Palcho, and Raymond J. Baca Jr. the Burke Air Traffic Manager observed from the 

Air Traffic Control Tower. Khalid Bahhur, Dan Psimer, Jack Arnold, and Thomas Leahy observed 

near the respective pick up and drop areas. Konrad had not towed from these areas recently. 

Therefore each circuit was accomplished first by an over flight, to determine if each tow could be 

accomplished safely prior to the actual pick up. 

Weather conditions for the Demo were high broken to overcast clouds with brisk west winds from 

270 degrees at 14 mph gusting to 20 mph. 

In addition to the banner tow demo a total of 9 additional aircraft operations were accommodated 

during the flight portion of the demo one aircraft doing touch and go landings was asked to extend 

it's down wind leg once. No other airborne aircraft were impacted. Two taxing aircraft were 

affected and experienced short delays of about 2 minutes. One had to delay the start of its taxi and 

another needed to be routed a bit differently than expected. These taxi delays were for the second 
pickup, in the area south of taxiway 'G' adjacent to taxiway 'B'. No delays were encountered for 

any aircraft during the set up or teardown of the ground based equipment. All ground operations 

were conducted well clear of ATC movement areas. Each barmer ground set up was less than 20 

minutes in duration. Traffic Operations and flow during the period was about normal for this 

Airport. 

Each tow was conducted using the normal track to be expected for this type and direction of 

operation, and included a circuit of the Downtown area of Cleveland prior to the drop. 

The banner tow aircraft departed BKL just after 13:00 EDT, the fly by was complete at 13:09 and 

returned at 13:15 for a successfiil hook of 27 letters on the first attempt. After the circuit this banner 

was dropped and recovered on target, A flyby of the second banner was accomplished and after two 

attempts a successful hook of this banner containing 17 letters was accomplished, followed again 

by an uneventful drop and recovery. The second banner was dropped and the demo over at 13:48 

EDT. 

(Note set up and recovery of this event was accomplished using one ground based person by this 

operator). 

The aircraft used for this banner tow was a standard category F21 Taylorcraft modified with a 

larger engine and installation of a tow hook. This aircraft is typical of the type expected for an 

operation of this sort. 

Following the Demonstration an informational discussion and short debrief was accomplished. 

All involved were invited to submit their observations of this event. Only Kris Palcho and 

Raymond Baca chose to comment. 

Kris Palcho comments; "/ observed the set up from the field and the in-flight operations from the 

tower -

Set up - appeared to have no impact on airport operations. The crew remained well outside the 

movement areas of the airfield. 

Pick up - site 1 (north of the approach end of24L) 

-27 letter banner, because there were missed attempts, there was a small impact on other 

operations at the field. 

-the tower controllers had no difficulty making changes to the traffic flow on this day 

-there was some question as to the communications with the aircraft - use of the phrase 

"proceed as requested" was chosen over the words "cleared" or "operations approved". ATC 

prompted for a request when needed. 

-the operation in line with the runway proved to be simple and in no way a threat from the 

view that I had. 

-the drop/recovery appeared to be a non-event from the tower view 

Pick up - site 2 (south ofRW24L) 

-17 letter banner 

-again some delay in pick up. The location caused more delay/reroute of traffic because the 

pick up aircraft was crossing centerlines of runways AND taxiways. 
-one re-route was on taxi for departure (back taxi of the active) and one on turn to final for 

landing 

-Again, ATC did a great job at making changes on the fly. " 

-Pick up appeared risky from the tower view - turn to final, dive for pick up outside normal 

movement area, crossing the taxiway again on climb 

-phraseology has same concerns as first pick up. 

-the drop was uneventful from the tower view. 

-the tower controller was not expecting the cool down time but again handled it easily 

-This spot may be more conducive to east bound departures but you still have to cross a 

taxiway. 

My preferred location was site 1. less maneuvering for pick up and drop off, less impact on airport 

operations, fewer changes to the normal traffic flow " 

Raymond Baca comments; "7 really don't have too much to add from the brief conversation that we 

had following the demonstration, but I will give you a quick recap of my thoughts. From a 

controller standpoint, we would prefer the first demo area be used if and when this operation 

comes to fruition. While both areas impact air traffic movement, I believe that the area east of 

taxiway "F" at the approach end of Runway 24L impedes progress the least. The area south of 

taxiway "G" (2nd demo area) would essentially shutdown our Runup Pad, Taxiway "G", and 

Runway 6R/24L, while the 1st demo area would minimally impact taxiway "F" arid runway 6R/24L. 

Unfortunately, I believe Conrad preferred the second area but, as I said, I am looking at it from an 

air traffic standpoint where it will have the least impact on airport operations. 

As for the controllers here, the only comments that I heard were in regards to the number of banner 

towers that would be permitted to operate at any given time. With that being said, I don't want to 

put the "cart before the horse" in terms of that concern, phraseology, etc...It is my understanding 

that there will be many more meetings prior to this operation which is where these concerns will be 

voiced." 

There are three possible sites to conduct Banner towing at KBKL. The two that were used for this 

demonstration were suitable without any improvements. The third site which is north and east the 

approach end of Runway 24L would have required some mowing prior to use and additionally is 

not visible in its entirety from the ATC control tower, but again outside of the ATC movement 

area. 

The Cleveland Flight Standards Office is of the opinion that it is reasonable to expect that banner 

towing could be conducted safely from the Cleveland Burke Lakefront Airport (KBKL). 

Sincerely 

THom^ J. Leahy 

Aviation Safety and Principal Operations Inspector 
-W 

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FAfV G^W^hi^ ^ X-teM IZ 

. ^ ^ U.S: DEPARTMENT OF TRANSPORTATION 

••FEDERAL AVIATION ADMINISTRATION AIRPORT MASTER RECORD 

^ ^ 

> 1 ASSOC CITY: MILWAUKEE 4 STATE; Wl LOC ID: MKE 

PRINT DATE; 10/22/2009 

AFD EFF 10/22/2009 

Form Approved 0MB 2120-0015 

F/VASITENR: 27388,*A 

> 2 AIRPORT NAME: GENERAL MITCHELL INTL 5 COUNTY: MILWAUKEE Wl 

3 CBD TO AIRPORT (NM): 05 3 6 REGION/ADO: AGL/MSP 7 SECT AERO CHT: CHICAGO 

GENERAL SERVICES 

10 OWNERSHIP: PU > 70 FUEL: 100LLA 

> 11 OWNER: MILWAUKEE COUNTY 

> 12 ADDRESS: 907 N 10TH ST > 71 AIRFRAME RPRS: MAJOR 

MILWAUKEE, Wl 53233 =• 72 PWR PLANT RPRS; MAJOR 

»13 PHONE NR; 414-747-5300 > 73 BOTTLE OXYGEN: NONE 

> 14 MANAGER: C.B. BATEMAN > 74 BULK OXYGEN: HIGH 

> 15 ADDRESS: 5300 S HOWELL AVE 75 TSNT STORAGE; HGR 

MILWAUKEE, Wl 53207 76 OTHER SERVICES: 

> 16 PHONE NR: 414-747-5300 AMB, AVNCS, CARGO, CHTR, INSTR, RNTL, SALES 

> 17 ATTENDANCE SCHEDULE: 

ALL ALL ALL ^^^,,,^^ 3 

'80ARPTBCN: CG 

> 81 ARPT LGT SKED: DUSK-DAWN 

> 82 UNICOM- 122 950 

18 AIRPORT USE; PUBLIC > 83 Z D INDICATOR- YES-L 

19 ARPT LAT: 42-56-50.0000N ESTIMATED " 'p"r,' " 'p" ' ,"_, p. J,nMp 

087-53-47.7000W SOL'^ - ' YES 

21ARPTELEV; 723 SURVEYED " „ „ ' rpEEN BAY 

' 88 FSS PHONE NR; 

> 24 NON-COMM LANDING: NO 89 TOLL FREE NR; 1-800-WX-8RIEF 

25 NPIAS/FED AGREEMENTS;NGY3 

> 26 FAR 139 INDEX; 1 C S 05/1973 

RUNWAY DATA 

^30 RUNWAY IDENT: 

^31 LENGTH; 

-32 WIDTH: 

^ 33 SURF TYPE-COND: 

'• 34 SURF TREATMENT: 

35 GROSS WT; SW 

36 (IN THSDS) DW 

37 DTW 

38 DDTW 

•' 39 PCN: 

LIGHTING/APCH AIDS 

=• 40 EDGE INTENSITY: 

> 42 RWY MARK TYPE-COND: 

>43VGSI: 

44 THR CROSSING HGT; 

45 VISUAL GLIDE ANGLE; 

>46CNTRLN-TDZ: 

> 47 RVR-RW: 

M8REIL 

> 49 APCH LIGHTS: 

OBSTRUCTION DATA 

50 FAR 77 CATEGORY; 

>51 DISPLACED THR: 

> 52 CTLG OBSTN; 

> 53 OBSTN MARKED/LGTD: 

> 54 HGT ABOVE RWY END: 

> 55 DIST FROM RWY END: 

> 56 CNTRLN OFFSET: 

57 OBSTN CLNC SLOPE; 

58 CLOSE-IN OBSTN; 

DECLARED DISTANCES 

> 60 TAKE OFF RUN AVBL (TORA); 

> 61 TAKE OFF DIST AVBL (TODA)-

> 62 ACLT STOP DIST AVBL (ASDA): 

> 63 LNDG DIST AVBL (LDA): 

01U19R 01R/19L 07U25R 

9,690 4,183 4,800 

200 150 100 

ASPH-CONC-F ASPH-CONC-F ASPH-CONC-F 

GRVD 

100.0 85.0 30.0 

185.0 115.0 35.0 

350.0 180.0 55,0 

HIGH MED MED 

PIR-G/PIR- G NPI-G/NPI- G BSC-G/BSC -

P4R / P4R / V4L / P4R 

65/6 8 / 37 / 40 

3,00 / 3.00 / 3.10 / 3,00 

Y-Y / Y- N N-N / N-N N-N / N-N 

TMR - N / TMR -N -N/- N -N/- N 

N / N Y / N Y / Y 

ALSF2 / MALSR ' / 

PIR / PIR C / C A(V) / A(V) 

/ 785 / / 

TREE / FENCE ' TREE TREE / POLE 

/ / / L 

82/ 6 / 125 44/7 7 

3,758 /249 / 4,336 1,298 / 1,727 

985L / 404R ' 463L 187R / 195R 

44:1 / 8;i S0;1 / 33:1 24:1 / 19:1 

N / Y N / N N / N 

/ / / 

/ / / 

/ / / 

/ / / 

BASED AIRCRAFT 

90 SINGLE ENG; 

91 MULTI ENG; 

92 JET; 

TOTAL: 

93 HELICOPTERS; 

94 GLIDERS; 

95 MILITARY; 

96 ULTRA-LIGHT; 

OPERATIONS 

100 AIR CARRIER; 

102AIRT/Wei; 

103 G A LOCAL; 

104GAITNRNT; 

105 MILITARY: 

TOTAL; 

OPERATIONS FOR 12 

23 

19 

68 

110 

0 

0 

9 

0 

68,567 

107,775 

28 

17,619 

2,056 

196,045 

MONTHS ENDING 09/01/2008 | 

07R/25L 

8,012 

150 

ASPH-CONC-F 

GRVD 

100.0 

185,0 

350,0 

HIGH 

G PIR-G/PIR- G 

P4L / P4L 

56 /50 

3.00 / 3,00 

N-N /N- N 

T - N / -N 

N / Y 

MALSR / 

PIR / C 

/683 

TREE / POLE 

/ L 

80 /41 

3,220 / 456 

305L / 464L 

37:1 /8;1 

N / N 

/ 

/ 

/ 

/ 

(>) ARPT MGR PLEASE ADVISE FSS IN ITEM 86 WHEN CHANGES OCCUR TO ITEMS PRECEDED BY > I 

> 110 REMARKS; 

A 026 ARFF INDEX D EQUIP AVBL UPON REQUEST. 

A 057 RWY 13 APCH RATIO 27:1 TO DSPLCD THLD; 87 FT TREE 2375 FT TO DSPLCD THLD; 490 FT LEFT. 

A 057 RWY 19R APCH RATIO 36:1 TO DSPLCD THLD; 100 FT TREE 3641 FT TO DSPLCD THLD; 901 FT RIGHT. 

A 057 RWY 25L RWY 25L APCH RATIO 29:1 TO DSPLCD THLD; 39 FT POLE, 1140 FT TO DSPLCD THLD; 544 FT LtF 1. 

A 057 RWY 31 APCH RATIO 27;1 TO DSPLCD THLD; 42 FT RR 1160 FT TO DSPLCD THLD; 290 FT R. 

A 058 RWY 13 FENCE POST 197 FT FM RY END; 2442 L OF CNTRLN. 

A 058 RWY 19R FENCE 148 FT FM THLD; 391 FT R OF CNTRLN. 

111 INSPECTOR; ( F ) 112 LAST INSP; 10/24/2008 113 LAST INFO REQ; 

FAA Form 5010-1 (5-91) SUPERSEDES PREVIOUS EDITION 
, W.S. BEPARTMENT OF TRANSPORTATION 

I FEDERAL AVIATION ADMINISTRATION AIRPORT MASTER RECORD 

PRINT DATE; 10/22/2009 

AFD EFF 10/22/2009 

Fomi Approved OMB 2120-0015 

> 1 ASSOC CITY: 

> 2 AIRPORT NAME: 

3 CBD TO AIRPORT (NM): 

'CONTINUED""* 4 STATE: Wl 

6 REGION/ADO: AGL/MSP 

LOC ID; MKE 

5 COUNTY; 

7 SECT AERO CHT; 

FAA SITE NR; 27388,*A 

GENERAL SERVICES BASED AIRCRAFT 

10 OWNERSHIP; 

>11 OWNER; 

> 12 ADDRESS: 

> 13 PHONE NR: 

> 14 MANAGER: 

> 15 ADDRESS: 

> 16 PHONE NR; 

' 17 ATTENDANCE SCHEDULE; 

18 AIRPORT USE; 

19ARPTL^T; 

20 ARPT LONG; 

21 ARPT ELEV; 

22 ACREAGE; 

> 23 RIGHT TRAFFIC: 

> 24 NON-COMM LANDING: 

25 NPIAS/FED AGREEMENTS; 

> 26 FAR 139 INDEX: 

>30 

>31 

>32 

>33 

>34 

35 

36 

37 

38 

>39 

>40 

>42 

>43 

44 

45 

>46 

>47 

>48 

>49 

50 

>51 

>52 

>53 

>54 

>55 

>56 

57 

58 

>60 

>61 

>62 

>63 

RUNWAY DATA 

RUNWAY IDENT: 

LENGTH: 

WIDTH: 

SURF TYPE-COND: 

SURF TREATMENT: 

GROSS WT; SW 

(IN THSDS) DW 

DTW 

DDTW 

PCN; 

LIGHTING/APCH AIDS 

EDGE INTENSITY; 

RWY MARK TYPE-COND: 

VGSI: 

THR CROSSING HGT: 

VISUAL GLIDE ANGLE; 

CNTRLN-TDZ: 

RVR-RW; 

REIL 

APCH LIGHTS: 

OBSTRUCTION DATA 

FAR 77 CATEGORY; 

DISPLACED THR: 

CTLG OBSTN: 

OBSTN MARKED/LGTD: 

HGT ABOVE RWY END: 

DIST FROM RWY END; 

CNTRLN OFFSET: 

OBSTN CLNC SLOPE: 

CLOSE-IN OBSTN; 

DECLARED DISTANCES 

TAKE OFF RUN AVBL (TORA): 

TAKE OFF DIST AVBL (TODA): 

ACLT STOP DIST AVBL (ASDA): 

LNDG DIST AVBL (LDA): 

> 70 FUEL: 

>71 AIRFRAME RPRS: 

>72 PWR PLANT RPRS: 

> 73 BOTTLE OXYGEN; 

> 74 BULK OXYGEN; 

75 TSNT STORAGE; 

76 OTHER SERVICES; 

90 SINGLE ENG; 

91 MULTI ENG; 

92 JET; 

TOTAL; 

93 HELICOPTERS; 

94 GLIDERS; 

95 MILITARY; 

96 ULTRA-LIGHT; 

FACILITIES 

>80ARPTBCN; 

> 81 ARPT LGT SKED: 

> 82 UNICOM: 

> 83 WIND INDICATOR: 

84 SEGMENTED CIRCLE; 

85 CONTROL TWR; 

86 FSS; 

87 FSS ON ARPT; 

88 FSS PHONE NR; 

89 TOLL FREE NR; 

OPERATIONS 

100 AIR CARRIER; 

102 AIR TAXI; 

103 G A LOCAL 

104GAITNRNT: 

105 MILITARY; 

TOTAL; 

OPERATIONS FOR 12 

MONTHS ENDING 

13/31 

5,868 

150 

ASPH-CONC-F 

80,0 

110,0 

170,0 

MED 

NPI-G / NPI-G 

P4L / P4R 

54 / 55 

3,00 / 3,00 

N-N /N- N 

-N / -N 

Y / Y 

B(V) / B(V) 

741 / 534 

POLE / RR 

L / L 

33 /42 

486 / 626 

69L / 295R 

8:1 / 10:1 

Y / N 

/ 

/ 

/ 

I 

(>) ARPT MGR PLEASE ADVISE FSS IN ITEM 86 WHEN CHANGES OCCUR TO ITHMS PRECEDED BY > 

> 110 REMARKS: 

A 110 THIS AIRPORT HAS BEEN SURVEYED BY THE NATIONAL GEODETIC SURVEY, 

A 110-1 RY 07L/25R CLSD TO ALL JET ACFT & ACFT DESIGN GROUP Bill 8. LARGER, 

A 110-2 TWY 'A' CLSD FM TWY 'R' TO 'E' & TWY 'E' CLSD FM TWY T TO 'M' AND TWY T CLSD FM RY 07R/25L TO TWY 'E' TO DC10 B747 C-5 & MD11 DURING 

CAT II i. Ill OPNS. 

A110-3 RY 13/31 CLSD TURBOJET ACFT W/OPPRAMGR-CALL 414-747-5325. 

A 110-4 RWY 1R CLSD TURBOJET TKOFS. 

A 110-5 TRNG FLGTS INVOLVING SUCCESSIVE USE OF ANY RY PROHIBITED 2200-0600, 

A 110-6 RYS 13/31 & 01R/19L & 07L/25R CLSD EXCP LGT WT SINGLE ENG ACFT 2200-0600 DLY, 

111 INSPECTOR: { F ) 112 LAST INSP; 10/24/2008 113 LAST INFO REQ; 

F/VA Form 5010-1 (5-91) SUPERSEDES PREVIOUS EDITION 
# 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION AIRPORT MASTER RECORD PRINT DATE; 10/22/2009 

AFD EFF 10/22/2009 

Form Approved OMB 2120-0015 

> 1 ASSOC CITY: 

> 2 AIRPORT NAME: 

3 CBD TO AIRPORT (NM); 

"CONTINUED" 4 STATE; Wl 

6 REGION/ADO; AGL/MSP 

LOC ID; MKE 

5 COUNTY; 

7 SECT AERO CHT; 

FAA SITE NR: 27388.*A 

GENERAL SERVICES 

10 OWNERSHIP; 

>11 OWNER: 

> 12 ADDRESS: 

> 13 PHONE NR: 

> 14 MANAGER: 

> 15 ADDRESS; 

> 16 PHONE NR: 

> 17 ATTENDANCE SCHEDULE; 

18 AIRPORT USE; 

19 ARPT LAT: 

20 ARPT LONG; 

21 ARPT ELEV; 

22 ACREAGE; 

> 23 RIGHT TRAFFIC; 

>24 NON-COMM LANDING: 

25 NPIAS/FED AGREEMENTS; 

>26 FAR 139 INDEX: 

BASED AIRCRAFT 

>70 FUEL: 

>30 

>31 

>32 

>33 

>34 

35 

36 

37 

38 

>39 

>40 

>42 

>43 

44 

45 

>46 

>47 

>48 

>49 

50 

>51 

>52 

>53 

>54 

>55 

>56 

57 

58 

>60 

>61 

>62 

>63 

RUNWAY DATA 

RUNWAY IDENT; 

LENGTH; 

WIDTH: 

SURF TYPE-COND: 

SURF TREATMENT; 

GROSS WT; SW 

(IN THSDS) DW 

DTW 

DDTW 

PCN: 

LIGHTING/APCH AIDS 

EDGE INTENSITY: 

RWY MARK TYPE-COND: 

VGSI: 

THR CROSSING HGT; 

VISUAL GLIDE ANGLE; 

CNTRLN-TDZ: 

RVR-RW: 

REIL 

APCH LIGHTS: 

OBSTRUCTION DATA 

FAR 77 CATEGORY: 

DISPLACED THR: 

CTLG OBSTN: 

OBSTN MARKED/LGTD: 

HGTABOVERWYEND; 

DIST FROM RWY END; 

CNTRLN OFFSET; 

OBSTN CLNC SLOPE; 

CLOSE-IN OBSTN; 

DECLARED DISTANCES 

TAKE OFF RUN AVBL (TORA); 

TAKE OFF DIST AVBL (TODA); 

ACLT STOP DIST AVBL (ASDA); 

LNDG DIST AVBL (LDA): 

> 71 AIRFRAME RPRS: 

> 72 PWR PLANT RPRS; 

> 73 BOTTLE OXYGEN; 

> 74 BULK OXYGEN; 

75 TSNT STORAGE; 

76 OTHER SERVICES; 

90 SINGLE ENG; 

91 MULTI ENG; 

92 JET; 

TOTAL; 

93 HELICOPTERS: 

94 GLIDERS; 

95 MILITARY; 

96 ULTRA-LIGHT; 

FACILITIES 

>80ARPTBCN; 

>81 ARPT LGT SKED: 

> 82 UNICOM: 

> 83 WIND INDICATOR; 

84 SEGMENTED CIRCLE; 

85 CONTROL TWR; 

86 FSS; 

87 FSS ON ARPT; 

88 FSS PHONE NR; 

89 TOLL FREE NR; 

OPERATIONS 

100 AIR CARRIER: 

102 AIR TAXI; 

103 G A LOCAL 

104GA1TNRNT; 

105 MILITARY; 

TOTAL; 

OPERATIONS FOR 12 

MONTHS ENDING 

(>) ARPT MGR PLEASE ADVISE FSS IN ITEM 86 WHEN CHANGES CJCCUR TO ITEMS PRECEDED BY > 

> 110 REMARKS; 

A 110-8 BIRDS ON & INVOF ARPT, 

A 110-9 PREFERRED USAGE BY ACFT BTN 2200-0600 IS TKOF RY 19R & LNDG RY OIL, 

A 110-10 ALL APCHS ARE OVER NOISE SENSITIVE AREAS; ALL TURBOJET ACFT SHOULD REFRAIN FM CONDUCTING MULTI VFR TFC PATTERN APCHS & 

DEPS WO PRIOR APVL FM AMGR CALL C414-747-5325, 

A 110-11 TWY B CLSD BTN TWYS 'G' & 'D'.'R' & Al ' TO B747 AND LARGER TYPE ACFT WITHOUT PRIOR PERMISSION FM AMGR AT 414-747-5235, 

A 110-14 RYS 07L/25R & 01R/19L 8i TWYS H/J/P NOT AUTHORIZED UNDER FAR PART 139 FOR SCHED OPNS INVOLV ACR ACFT DESIGNED FOR 10 OR 

MORE PASSENGER SEATS AND SCHED/UNSCHED ACR OPNS INVOLV ACFT DESIGNED 31 OR MORE PASSENGER SEATS. 

A 110-23 ANG; PPR ALL ACFT. 48HR PN, CTC AFLD OPS DSN 580-8241, C414-944-8241. 128ARW IS A FULLY OPERATIONAL KC-135R BASE WITH HRS OF 

OPERATION MON-FRI 1200Z-1930Z, CLOSED HOLIDAYS, SAT-SUN (EXCEPT UTA'S), CALL FOR AVAILABILITY. 

A 110-24 ANG; ANY MDS'S (OTHER THAN KC-135) IS LIMITED TO STANDARD TRANSIENT MARSHALLING AND PARKING, NO TECHNICAL DATA AVAILABLE 

FOR TRANSIENT MAINTENANCE. FUEL AND AGE EQUIPMENT SUPPORT AVAILABLE FOR SELF-SERVICE, THERE ARE NO ADDITIONAL 

111 INSPECT3SWFIGHRA-ntON)ITEMS SlltPBSWrBteSUCH A^MH/WOi PODS, EDM PQB5ABTQNF0 REQ; 

FAA Form 5010-1 (5-91) SUPERSEDES PREVIOUS EDITION 
, U.& DEPARTMENT OF TRANSPORTATION 

I FEDERAL AVIATION ADMINISTRATION AIRPORT MASTER RECORD 

PRINT DATE; 10/22/2009 

AFD EFF 10/22/2009 

Form Approved OMB 2120-0015 

' 1 ASSOC CITY: 

•2 AIRPORT NAME; 

3 CBD TO AIRPORT (NM); 

•CONTINUED*' 4 STATE; Wl 

6 REGION/ADO; AGL/MSP 

LOC ID: MKE 

5 COUNTY; 

7 SECT AERO CHT; 

FAA SITE NR; 27388.*A 

GENERAL SERVICES 

10 OWNERSHIP; 

>11 OWNER: 

> 12 ADDRESS: 

M3 PHONE NR: 

> 14 MANAGER: 

> 15 ADDRESS; 

> 16 PHONE NR; 

> 17 ATTENDANCE SCHEDULE: 

18 AIRPORT USE; 

19 ARPT LAT; 

20 ARPT LONG; 

21 ARPT ELEV; 

22 ACREAGE; 

=•23 RIGHT TRAFFIC: 

> 24 NON-COMM LANDING: 

25 NPIAS/FED AGREEMENTS; 

> 26 FAR 139 INDEX; 

RUNWAY DATA 

> 30 RUNWAY IDENT: 

> 31 LENGTH: 

> 32 WIDTH; 

> 33 SURF TYPE-COND: 

> 34 SURF TREATMENT; 

35 GROSS WT: SW 

36 (IN THSDS) DW 

37 DTW 

38 DDTW 

> 39 PCN: 

LIGHTING/APCH AIDS 

>40 EDGE INTENSITY; 

> 42 RWY MARK TYPE-COND; 

> 43 VGSI: 

44 THR CROSSING HGT; 

45 VISUAL GLIDE ANGLE; 

> 46 CNTRLN-TDZ; 

> 47 RVR-RW: 

> 48 REIL 

> 49 APCH LIGHTS: 

OBSTRUCTION DATA 

50 FAR 77 CATEGORY: 

>51 DISPLACED THR; 

> 52 CTLG OBSTN: 

> 53 OBSTN MARKED/LGTD: 

> 54 HGT ABOVE RWY END: 

> 55 DIST FROM RWY END: 

' 56 CNTRLN OFFSET: 

57 OBSTN CLNC SLOPE; 

58 CLOSE-IN OBSTN; 

DECLARED DISTANCES 

> 60 TAKE OFF RUN AVBL (TORA); 

> 61 TAKE OFF DIST AVBL (TODA): 

> 62 ACLT STOP DIST AVBL (ASDA); 

> 63 LNDG DIST AVBL (LDA); 

•70 FUEL 

BASED AIRCRAFT 

>71 AIRFRAME RPRS: 

' 72 PWR PLANT RPRS: 

> 73 BOTTLE OXYGEN; 

> 74 BULK OXYGEN; 

75 TSNT STORAGE; 

76 OTHER SERVICES; 

FACILITIES 

>80ARPTBCN: 

>81 ARPT LGT SKED: 

> 82 UNICOM: 

> 83 WIND INDICATOR; 

84 SEGMENTED CIRCLE; 

85 CONTROL TWR: 

86 FSS; 

87 FSS ON ARPT; 

88 FSS PHONE NR; 

89 TOLL FREE NR; 

90 SINGLE ENG; 

91 MULTI ENG; 

92 JET; 

TOTAL; 

93 HELICOPTERS; 

94 GLIDERS; 

95 MILITARY; 

96 ULTRA-LIGHT; 

OPERATIONS 

100 AIR CARRIER; 

102 AIR TAXI; 

103 G A LOCAL 

104GAITNRNT; 

105 MILITARY; 

TOTAL; 

OPERATIONS FOR 12 

MONTHS ENDING 

(>) ARPT MGR PLEASE ADVISE FSS IN ITEM 86 WHEN CHANGES CXiCUR TO ITEMS PRECEDED BY > 

> 110 REMARKS: 

A 110-25 ANG; END OF RUNWAY FACILITIES, AIRCRAFT SHELTERS/REVETMENTS, AND ALERT FACILITIES ARE NOT AVAILABLE. AFLD/ACFT PARKING 

CONCERNS INCLUDE; LIMITED STATIC GROUNDING POINTS AND NO AIRCRAFT TIE DOWN POINTS. 

A 110-26 ANG; NO FLEET SVC/HOT CARGO PARKING AVAILABLE, CTC UPSET CTRL 20 MIN PRIOR TO ARR TO RCV CURRENT BIRD WATCH COND AND 

PARKING INFO. 

A 110-27 ASDE-X SURVEILLANCE SYSTEM IN USE; PILOTS SHOULD OPERATE TRANSPONDERS WITH MODE 'C ON ALL TWYS & RYS. 

A 110-28 TWY 'D', 'D1', 'H', 'J', 'F (WOF TWY 'Z' & E OF RY 01Lyi9R) CLSD TO DC-9 ACFT 8, LARGER WITHOUT PPR CALL ARPT MANAGER 414-747-5325, 

A 110-42 RY HOLD SIGN LCTD ON TWY D FOR NBND TFC TO HOLD RETROREFLECTIVE ONLY, HOLD SHORT SIGN WTWY G FOR RY 13/31 

RETROREFLECTIVE ONLY, 

A 110-46 ACFT TAXIING FOR DEP ON RY25L VIA EITHER TWY M OR RY 13/31 SHOULD REMAIN VIGILANT FOR THE LOCATION OF HOLDING POSITION 

SIGNS/MARKINGS FOR RY 25L, 

A 110-47 TWYS H/J/P NOT AUTHORIZED UNDER FAR PART 139 FOR SCHED OPNS INVOLV ACR ACFT DESIGNED FOR 10 OR MORE PASSENGER SEATS 

111 INSPEC'M!ieSCHfD/UNSpHEOA3fe(I[raSINS0LVACPIDiQCfiBHED3OOR MOnteFU«S3SNeeRR6Q<VTS, 

FAA Form 5010-1 (5-91) SUPERSEDES PREVIOUS EDITION 
• 

u s . BEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION AIRPORT MASTER RECORD 

> 1 ASSOC CITY; 

> 2 AIRPORT NAME: 

3 CBD TO AIRPORT (NM); 

•CONTINUED" 4 STATE; Wl 

6 REGION/ADO; AGUMSP 

LOC ID: MKE 

5 COUNTY; 

7 SECT AERO CHT; 

PRINT DATE; 10/22/2009 

AFD EFF 10/22/2009 

Form Approved OMB 2120-0015 

FAA SITE NR; 27388.*A 

GENERAL SERVICES 

10 OWNERSHIP; 

•11 OWNER: 

•12 ADDRESS; 

•13 PHONE NR: 

• 14 MANAGER: 

•15 ADDRESS; 

•16 PHONE NR: 

• 17 ATTENDANCE SCHEDULE; 

18 AIRPORT USE; 

19 ARPT LAT; 

20 ARPT LONG; 

21 ARPT ELEV: 

22 ACREAGE; 

> 23 RIGHT TRAFFIC; 

> 24 NON-COMM LA,NDING: 

25 NPIAS/FED AGREEMENTS: 

> 26 FAR 139 INDEX; 

> 70 FUEL 

>30 

>31 

>32 

>33 

>34 

35 

36 

37 

38 

>39 

MO 

>42 

>43 

44 

45 

M6 

M7 

>48 

>49 

50 

>51 

>52 

>53 

>54 

>55 

>56 

57 

58 

>60 

>61 

>62 

>63 

RUNWAY DATA 

RUNWAY IDENT; 

LENGTH: 

WIDTH; 

SURF TYPE-COND; 

SURF TREATMENT; 

GROSS WT: SW 

(IN THSDS) DW 

DTW 

DDTW 

PCN; 

LIGHTING/APCH AIDS 

EDGE INTENSITY: 

RWY MARK TYPE-COND; 

VGSI; 

THR CROSSING HGT; 

VISUAL GLIDE ANGLE; 

CNTRLN-TDZ: 

RVR-RW; 

REIL 

APCH LIGHTS; 

OBSTRUCTKDN DATA 

FAR 77 CATEGORY: 

DISPLACED THR: 

CTLG OBSTN: 

OBSTN MARKED/LGTD: 

HGT ABOVE RWY END: 

DIST FROM RWY END: 

CNTRLN OFFSET: 

OBSTN CLNC SLOPE; 

CLOSE-IN OBSTN; 

DECLARED DISTANCES 

TAKE OFF RUN AVBL (TORA); 

TAKE OFF DIST AVBL (TODA): 

ACLT STOP DIST AVBL (ASDA); 

LNDG DIST AVBL (LDA): 

> 71 AIRFRAME RPRS; 

> 72 PWR PLANT RPRS; 

> 73 BOTTLE OXYGEN; 

> 74 BULK OXYGEN; 

75 TSNT STORAGE; 

76 OTHER SERVICES; 

FACILITIES 

> 80 ARPT BCN: 

>81 ARPT LGT SKED; 

> 82 UNICOM: 

> 83 WIND INDICATOR: 

84 SEGMENTED CIRCLE; 

85 CONTROL TWR: 

86 FSS; 

87 FSS ON ARPT: 

88 FSS PHONE NR; 

89 TOLL FREE NR; 

BASED AIRCRAFT 

90 SINGLE ENG; 

91 MULTI ENG; 

92 JET; 

TOTAL; 

93 HELICOPTERS: 

94 GLIDERS; 

95 MILITARY; 

96 ULTRA-LIGHT; 

OPERATIONS 

100 AIR CARRIER; 

102 AIR TAXI: 

103 G A LOCAL 

104GAITNRNT: 

105 MILITARY; 

TOTAL; 

OPERATIONS FOR 12 

MONTHS ENDING 

(>) ARPT MGR PLEASE ADVISE FSS IN ITEM 86 WHEN CHANGES CXICUR TO ITEMS PRECEDED BY > 

•110 REMARKS: 

A 110-48 RY 07L/25R NO ACFT 65,000 POUNDS OR GREATER TAXI BTN TWY C & TWTi' E. 

A 110-49 TWY V AVBL FOR ALL TYPE ACFT WITH 8450 FT AVBL. 

A 110-50 ACFT WITH WINGSPAN GREATER THAN 158 FT CANNOT PASS SIMULTANEOUSLY ON TWY A AND TWY B BTWTWY R AND TWY A3 

A 110-51 TWY R3 CLSD WEST OF TWY R 

111 INSPECTOR: ( F ) 112 LAST INSP; 10/24/2008 113 LAST INFO REQ; 

FAA Form 5010-1 (5-91) SUPERSEDES PREVIOUS EDITION 
FM_:£>chibH i^ieiMi A DocLr^ 

Jackson ® Wade, L.L.C, 

£.4 . 4 Wj.-'t.-iC-a-y:'''' 

^-.^V l .1 '**»*•••• * 

• , <».'yirf.'ff: 

A ' j ?^?^iV-" 

JETLAW.CO M 

Via Federal Express 

March 30, 2009 

Mr. Randall Fiertz 

Director, Office of Airport Compliance 

And Field Operations 

Federal Aviation Administration 

Orville Wright Bldg. (FOBIOA) 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

Re: Request for Compliance Advice 

Dear Mr. Fiertz: 

Kent S. Jackson 

Admitted in District of Columbia, 

Kansas, Missouri and New York 

Michelle M. Wade 

Admitted in District of Columbia, 

Kansas and Missouri 

Lori N. Edwards 

Admitted in Kansas and Missouri 

Dillon L. Strohm 

Admitted in Kansas 

Phil Crowther 

Of Counsel 

Admitted in Kansas 

We represent Sterling Aviation ("Sterling"), a tenant of General Mitchell International Airport 

("GMIA") in Milwaukee, Wisconsin. Sterling and GMIA have been in dispute regarding 

Sterling's fueling rights relative to similarly situated airport tenants. 

On August 12, 2008 counsel for GMIA, Anderson & Kreiger LLP submitted a letter (hereafter 

the "Letter") purporting to seek guidance to help facilitate the local resolution of the dispute. 

Anderson & Krieger LLP did not speak with Sterling and was clearly unaware of several 

pertinent facts. Unfortunately, the Letter contained various material omissions and misstatements 

that we believe would have resulted in a different response from the FAA if the fiill facts were 

disclosed. We wish to clarify the misstatements and omissions and seek guidance on a proposed 

solution. 

Cessna Aircraft Company ("Cessna") is a tenant at GMIA and provides various specialized 

aircraft repair services under their Part 145 Repair Station. GMIA has granted Cessna the right to 

dispense fiiel to serve the needs of its customers, business invitees, and guests. Sterling does not 

contest Cessna's rights under their lease, nor do they contest GMIA's ability to grant such rights. 

Sterling only seeks to be granted the same or similar rights as a similarly situated airport tenant. 

Sterling meets the same GMIA Minimum Standard that Cessna meets. Specialized Aircraft 

Repair Services. Just like Cessna, Sterling provides various specialized aircraft repair services 

under Sterling's Part 145 Repair Station certificate in addition to serving as a Part 135 charter 

operator. Like Cessna, Sterling does not fiiel transient aircraft. Allowing Sterling to continue 

fueling aircraft that it performs maintenance on would not violate GMIA's AIP grant assurances, 

but to deny Sterling such rights would violate GMIA's AIP grant assurances by granting an 

EMAIL COUNSEL@JETLAW.COM 

TEL (913) 338-1700 | FAX (913) 338-1755 

21628 MIDLAN D DRIVE, SHAWNEE , KANSAS 65218 
Mr. Randall Fiertz 

March 30, 2009 

Page 2 of 5 

exclusive use and preventing the airport facility from being available on fair and reasonable 

terms without unjust discrimination. 

Sterling presents the following questions in hopes of resolving this issue with GMIA: 

1) Does Sterling meet the GMIA Minimum Standards of a Specialized Aircraft Repair 

Services provider? 

2) Is Sterling similarly situated to Cessna? 

3) Would it be unjust discrimination to deny Sterling the same or similar fueling rights as 

Cessna? 

Sterling has proposed that the parties seek FAA-approved mediation as provided in 14 

C.F.R. 16.21(a) to reach an informal resolution, but GMIA has refiised. We understand that the 

FAA carmot prejudge a potential fiature Part 16 complaint, but we seek the FAA's guidance with 

respect to the current dispute. It is our goal to provide a workable solution that allows Sterling to 

continue to have similar rights as Cessna while providing GMIA with assurance that such a 

course of action would not violate their AIP grant assurances 

Factual Background 

Sterling Lease 

Tom Scott founded Scott Air Charter ("Scott Air") in July of 1983 and subsequently moved on to 

the airport grounds of GMIA on or about June 1,1984. Scott Air Charter received its Part 145 

Repair Station Certificate from the FAA on September 1, 1993. From 1984 until 2004, Scott Air 

had always fueled all the aircraft in its hangar, whether they were operated as Part 135 or Part 91 

flights. 

In April 1997, Scott Air entered into a lease 'with Milwaukee County for property at GMIA 

("Lease"). In March of 2004, Sterling Aviation Holdings acquired the stock of Scott Air and 

changed the name to Sterling Aviation. Thus, Sterling is the same exact entity that has been 

operating at GMIA for nearly 25 years. The Lease permits Sterling to "operate and maintain for 

its use an aircraft hangar, together with necessary appurtenant facilities, for the purpose of 

storage, repair, fueling, maintenance, and operation of Lessee's owned or leased aircraft." Lease, 

II3.A. The Lease gives Sterling the right to use the existing or install its own aviation ftiel and oil 

storage facilities in its leasehold areas. See Lease, ^ 8. The Lease limits Sterling fueling rights "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 the storage of said 

products for use in airplanes owned, leased, rented, or operated exclusively by or for Lessee." 

Lease ]f 8.E. 

Cessna Lease 

In August 1989, Cessna entered into a lease with Milwaukee County for property at GMIA 

("Cessna Lease"). The Cessna Lease permits and Cessna has installed "[ajviation fixel storage 

and dispensing facilities to serve the requirements of Lessee and its customers, business invitees. 
Mr. Randall Fiertz 

March 30, 2009 

Page 3 of 5 

and guests...." Cessna Lease, Tj 11. In fact, Cessna is allowed to engage in any activity so long as 

it agrees "that it will not engage in any other practices normally considered those of a fixed base 

operator." Cessna Lease, ^ 3. A. GMIA does not view the fixeling of "customers, business 

invitees, and guests" as a "practice normally considered [that] of a fixed base operator" or such 

language would not have been included in the Cessna Lease. 

Unlike the narrow fiaeling restrictions in the Lease with Sterling (which limits fiieling to 

"airplanes owned, leased, rented or operated exclusively by or for [Sterling]" Lease ^ 8.E), 

Milwaukee County allows broad fiieling rights "to customers, business invitees, and guests." 

Cessna Lease, f 11. We do not believe Cessna's fueling rights are unreasonable as specified 

above, rather we refer to them only as an example of Milwaukee County's discriminatory 

practice granting disparate fueling rights to similarly situated Commercial Operators at GMIA. 

GMIA's Minimum Standards 

Milwaukee County (the "County"), as the owner, operator and sponsor of GMIA, has established 

the Minimum Standards applicable to the airport. The Minimum Standards set forth "the 

minimum requirement for a person, firm, or corporation based upon and engaging in one or more 

selected commercial aeronautical operations..." Minimum Standards, Introductory. 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 SterUng 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. 

The Letter on page 3, paragraph states that "FBO's providing 'line services' are the only 

aeronautical service providers that are authorized by the Minimum Standards to engage in the 

'sale and into-plane delivery of recognized brands of aviation fiiel.' Minimum Standards, 1| A.l." 

The Letter then states that Sterling is not an FBO or a "line services" provider under the 

Minimum Standards. Sterling agrees that they are not an FBO and fiirther notes that Cessna is 

also not an FBO. In fact the Cessna Lease at 1|3.A prohibits the lessee from engaging "in any 

other practices normally considered those of a fixed base operator." Thus the permission granted 

to Cessna by GMIA in *|11 with regard to right to dispense fiiel "to serve the requirements of 

Lessee and its customers, business invitees, and guests only" cannot be deemed to be engaging in 

FBO type activity. 

Discussion 

Sterling's Specialized Aircraft Repair Services 

Sterling meets the Minimum Standards for Specialized Aircraft Repair Services. 

A provider of specialized aircraft repair services must be a Part 145 repair station certificate 

holder for the operation or operations contemplated. Minimum Standards, Tj C.2(b) The operator 

may provide one or more of the listed services, but is only required to provide the services for 

which their Part 145 repair station certificate allows. Sterling's Part 145 certificate is for a 
Mr. Randall Fiertz 

March 30, 2009 

Page 4 of 5 

limited rating, which limits their maintenance capabilities to specific makes and models. A Part 

145 repair certificate with a limited rating meets the minimum standards of GMIA. 

Similarly Situated 

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

Part 145 Limited Rating, both Sterling and Cessna meet the GMIA Minimum Standards for 

Specialized Aircraft Repair Services. 

FAA Order 5190.6A describes the responsibilities under Grant Assurance 22 assumed by the 

owners 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 5190.6A, Sees. 3-1 and 4-14(a)(2)] 

Cessna is not fueling transient traffic, only those with whom they have a business relationship. 

Similarly, Sterling does not wish to attract and fuel transient traffic, rather they simply seek to 

provide fiael to their customers, business invitees, and guests in the same manner as Cessna. 

Unjust Discrimination to Prevent a Similarly Situated Tenant From Engaging in Similar 

Activities 

We believe that GMIA would be violating their grant assurances by denying Sterling the right to 

engage in similar activities as Cessna. Subsection (a) of Federal Grant Assurance 22, Economic 

Discrimination requires that the sponsor of a federally obligated airport "will make its airport 

available as an airport for public use on fair and reasonable terms, and without unjust 

discrimination, to all types, kinds, and classes of aeronautical uses." 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 arrangement."' Cessna is a FAA 

approved Part 145 Repair Station specializing in repair of Cessna Citation aircraft. Milwaukee 

County granted Cessna the right to fiiel aircraft of its customers, business invitee, and guests. 

Sterling holds a Part 145 repair station certificate and as discussed above is similarly situated to 

Cessna. Both Sterling and Cessna meet the requirements of a Specialized Aircraft Repair 

Services as defined by the Minimum Standards and thus should be granted the same fiaeling 

rights. 

Subsection (i)^ of grant Assurance 22 does represent an exception to subsection (a) to permit the 

sponsor to exercise control of the airport and prohibit and/or limit aeronautical activity only if 

such action is necessary to prevent unsafe operation. There is no legitimate basis to find 

' Kent J. Ashton v. City of Concord, Docket No. 16-99-09, 2000 WL 1387887, * 16 (Final Decision and Order)(July 

3, 2000); See FAA Order 5190.6A, Sees. 4-14(a)(2) and 3-1 (describing the responsibilities under Assurance 22 to 

include an 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 service available on reasonable terms without unjust discrimination.). 

^ Assurance 22(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"). 
Mr. Randall Fiertz 

March 30, 2009 

Page 5 of 5 

Sterling's exercise of the same fueling rights granted to Cessna would be unsafe, and neither the 

County nor anyone else has ever alleged that safety is an issue. Sterling is required by the 

Federal Aviation Regulations to maintain all aircraft on their Part 135 certificate at all times. 

Even if an aircraft wishes to fly under Part 91, Sterling must release the aircraft to the owner in 

order to ensure that Sterling complies with its ongoing maintenance responsibilities under Part 

135. While both Sterling and Cessna perform maintenance to the high standards imposed under 

Part 145, only Sterling is required to meet the maintenance standards of Part 135 for all of its 

customers. To claim the operation is unsafe, (which no one has and we only mention for the 

purpose of completeness of this letter) would be clearly unfounded and misguided as Cessna has 

been allowed to provide fuel services to customers, business invites, zind guests for almost 

twenty years. 

The disparity in fueling rights to similarly situated aeronautical service providers violates Federal 

Grant Assurance 22, Economic Discrimination. The sponsor has an obligation to make the 

airport available for aeronautical use on reasonable and not unjustly discriminatory terms to 

similarly situated aeronautical service providers. 

Sterling respectfully requests the FAA's guidance whether, assuming the facts that we have 

presented in this letter: 

1) Does Sterling meet the GMIA Minimum Standards of a Specialized Aircraft Repair 

Services provider? 

2) Is Sterling similarly situated to Cessna? 

3) Would it be unjust discrimination to deny Sterling the same or similar fiieling rights as 

Cessna? 

We greatly appreciate your assistance in resolving this matter. Please let us know if you would 

like any additional information. Thank you. 

Sincerely, 

JACKSON & WADE, L.L.C 

Attachments 

Sterling Lease 

Cessna Lease 

GMIA Minimum Standards 
FAP^ -E^lnibZ-^ \ X+eM IS" \jx.te\ -Ifirt ^ 

APR 3 0 2009 

Mr. Kent S. Jackson 

Jackson & Wade. LLC 

21628 Midland Drive 

Shawnee, Kansas 66218 

Dear Mr. Jackson: 

Randall Fiertz has asked me to respond to your letter of March 30 about self-fueling issues at 

General Mitchell International Airport (MKE) in Milwaukee, Wisconsin. 

In your letter, you state that you would like to provide information relative to the fueling rights 

of Steriing Aviatbn. You also note that a previous letter from Anderson & Kreiger. L.L.P., 

counsel for MKE (dated August 12, 2008), contained various material omissions and 

misstatements on this same Issue and you wish to clarify certain infomiatbn. 

As you may know, the Federal Aviation Administration (FAA) has an infomial and a formal 

complaint process available to someone directly and substantially affected by the actions or 

inactions of a Federally obligated airport sponsor. You state in your letter that you are asking 

for compliance advice, however, it appears from your letter and attachments that you are 

seeking a finding from the FAA. You should know the FAA cannot prejudge a future formal or 

informal complaint. 

The questions in your letter are the types of questions that generally can only be answered 

with an investigation of the issues through the complaint process; either an informal complaint 

through the FAA Regional office, or a formal complaint under 14 CFR Part 16 through the 

Washington D.C. office. We are unable to give you a definitive answer to your specific inquiry 

without additional Information that would be available through the complaint process. With that 

in mind and with the recognition that it Is the specific facts presented by both parties that will 

ultimately be evaluated if a complaint is received, I am responding to your questions with 

general guidance on self-fueling. 

A dispute regarding the right to self-fuel falls under two separate Federal grant obligations: 

grant assurance 22(d) and grant assurance 22(f}. Assurance 22(d) covers the right for an air 

carrier to service itself and assurance 22(f) covers the right of an aircraft owner to service its 

own aircraft with its own equipment and its own emptoyees. 

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. 

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

its ow/7 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. 
If a tenant is expanding its self-fueling activity to include fueling aircraft that it does not own, 

lease, rent or operate for its exclusive use, it is outside the definition and protection of 

Assurance 22. 

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. 

An airport sponsor may establish reasonable minimum standards and rules and regulations to 

be followed when conducting self-service operatk>ns. Assurance 22 was never intended to 

provide an absolute right for aeronautical users to engage in fueling operations without 

meeting reasonable minimum standards and oiles and regulations. 

As an example, I have enclosed a copy of a letter that addressed a Part 135 operator's 

concern regarding self-fueling. In this letter, it was determined that aircraft management 

leases and joint venture arrangements did not constitute an "ownership interest" for the 

purposes of self-fueling. 

If you wish to pursue an informal complaint, submit the details of your complaint to my office, 

care of Mr. Thomas Schauer, Compliance Officer. If you wish to file a fontial complaint, 

please submit your complaint in accordance with 14 CFR Part 16. I hope this infomnatlon has 

been helpful to you. 

Sincerely, 

X^iGINAL SIGNED BV 

JERI ALLES 

Jeri Alles 

Manager, Airports Division 

Enclosure 

AGL-620;TSchauer:701-323-7383:4/29/2009 

cc: AGL-600/AGL-601/AGL-620 

File: Jack5on(MKE) 
F AA ^^W.y-i ^ 1 X4eH 1 ^ 1^ )a:^(^-' 

Cessna Aircraft Company operates 10 company-owned service centers aaoss the United States and Europe. Open 24 hoij 

seven days a week, 365 days a year, each service center is fully equipped to meet the needs of its Citation customers. 

Greensboro Citation Service Center 

The facility is an FAA-certified Part 145 Repair Station and is ISO 9001 certified as well. The Greenstwro Citation Service Center has 

complete line of airframe and engine maintenance, as well as inspection and repair capability. The facility also has full avionics 

troubleshooting, repair and modification capability. 

Date opened: 1993 

Facilities: 45,000 square feet 

Received the FAA Diamond Award for the fifth consecutive year 

Greensboro Citation Service Center 

Piedmont Triad International Airport 

615 Service Center Drive 

Greensboro, NC 27410 

Greensboro Citation Service Center 

Milvyraukee Citation Service Center 

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. The facility was opened for business in the fall of 1990 and is proud of the years of experience its staff 

workforce possess on Citation aircraft. 

Date opened; 1990 

Facilities: 45,715 square feet 

Milwaukee Citation Service Center 

General Mitchell International Airport 

210 E. Citation Way 

Milwaukee. Wl 53207 

Milwaukee Citation Service Center 

New York Citation Service Center 

The New York Citation Service Center (NYCSC) is a full-service Part 145 repair station. Owned and operated by Cessna Aircraft 

Company, its sole purpose is to support the owners and operators of the Cessna Citation fleet of aircraft. The fedlity offers a comple 

line of airframe maintenance, inspection and repair capability. 

Date opened: 1972 

Facilities: 41,660 square feet 

New York Citation Service Center 

Stewart International Airport 

3 Express Drive 

Newburgh, NY 12550 

http://www.cessna.com/about/citation-service-centers.html 11/24/2009 
New York Citation Service Center 

Orlando Citation Service Center 

The Orlando Citation Service Center is the largest Citation Service Center outside of Wichita. The fadlity was established in 1978 in 

Palm Beach and then moved to Orlando in 1983. In 2004, the Service Center expanded fi-om a previous facility at the Orlando 

International Airpwrt into a new, larger state-of-the-art tajilding. 

Date opened: 1983 

Facilities: 187,000 square feet 

Received the FAA Diamond Award for 2007 

Oriando Citation Service Center 

Orlando International Airport 

4134 Bear Rd 

Oriando, FL 32827 

Oriando Citation Service Center 

European Citation Service Center 

The Cessna Cifation European Service Center is the only Cessna-owned service center outside of the United States. Our facility is 

located at Le Bourget airport, one of the most visited airports in Europe, and is only 20 minutes from downtown Paris. The facility offt 

Citation owners the convenience of an "international business CTOSsroads." 

Date opened: 1997 

Facilities: 44,900 square feet 

European Citation Service Center 

Aeroport de Paris, Le Bourget 

Zone d'Aviation d'Affaires 

93352 Le Bourget Cedex, France 

European Cifation Service Center 

Sacramento Cifation Service Center 

The service center is capable of, and experienced in, airframe inspections and maintenance. With an avionics shop on-site, the fadli 

offers avionics troubleshooting and modifications. Also, it is capable of performing inspections and coordinating overhauls for all Cifa 

aircraft engines. 

http://www.cessna.com/about/citation-service-centers.html 11/24/2009 
Date opened: 1972 

Facilities: 62,576 square feet 

Received the FAA Diamond Award for 2007 

Sacramento Cifation Service Center 

Sacramento International Airport 

5850 Cifation Way 

SaCTamento, CA 95837 

Sacramento Cifation Service Center 

San Antonio Cifation Service Center 

The San Antonio Cifation Service Center was the first of the next generation Cifation Service Centers Cessna designed to facilifate ti 

computer-t)ased needs that the newer aircraft require. Seven computers strategically positioned on shop floor allow our technidans t 

access the Illustrated Parts Manuals, Maintenance Manuals, and the Cifation Expert Troubleshooting System near the aircraft in wor 

Date opened: 1997 

Fadlities: 60,680 square feet 

San Antonio Cifation Service Center 

San Antonio International Airport 

One Cessna Drive 

San Antonio, TX 78216 

San Antonio Cifation Service Center 

Wichifa Cifation Service Center 

The Wichifa Citation Service Center is located on a 124-acre site at Wichifa's Mid-Continent Airport. The facility can service over 100 

Cifatlons simulfaneously. 

The building has numerous customer lounges and offices, flight planning areas, a resfaurant, and a gift shop. The exterior of the facii 

equipped with a dedicated run-up area, two compass roses, and four fuel farms. 

Date opened: 1971 

Facilities: 477,000 square feet 

Received the FAA Employer Diamond Award for tiBining in 2007 

Wichifa Cifation Service Center 

2121 S. Hoover 

Wichifa, KS 67209 

http://www.cessna.com/about/citation-service-centers.html 11 /24/2009 
Wichifa Citation Service Center 

Mesa Citation Service Center 

Cessna opened its Mesa Cifation Service Center adjacent to the Williams Gateway Airport in Mesa, Ariz., on Monday, Jan. 5. The 

company constiucted a new 101,000-square foot fadlity that indudes 62,400 square feet of hangar space along with office and back 

areas. Cessna has devetoped 12 acres of its tract flanking three 10,000-foot runways and a 124,800-square foot aircraft ramp, leavir 

room for expansion as needed. 

Date opened: 2009 

Facilities: 101,000 square feet 

Mesa Citation Service Center 

5533 South Sossaman Road 

Mesa, AZ 85212 

Mesa Citation Service Center 

http://www.cessna.com/about/citation-service-centers.html 11/24/2009 
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