Airport Business - 35

LEGAL MATTERS
Commissioners of Jefferson County,
Colorado, FAA Docket No. 16-0110 (Director's Determination, April 2,
2002.)). Accordingly, if the amended
Minimum Standards create a violation of
the Federal Grant Assurances, the tenant
has a remedy in the form of a Part 13 or
Part 16 Complaint to the FAA.
"Under 14 CFR § 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 as
a "report of violation.'"( FAA Order
5190.6B, Chapter 5, Section 5.2). These
are commonly referred to as Part 13
Complaints or Informal Complaints. A
Part 13 Complaint may be made either
in writing or orally to the local FAA
Airports District Office or to the regional
Airports Division. (Id. at Section 5.4(a)).
Upon receipt of a Part 13 Complaint, the
FAA will:
1. Evaluate the facts surrounding
the filing and identify possible sponsor
violations.
2. Clarify the rights and responsibilities of the airport sponsor and the
complaining party.
3. Offer assistance to resolve the
dispute in a manner consistent with the
sponsor's federal obligations.
4. Provide the sponsor the opportunity to comply with its federal obligations
voluntarily when a violation is identified.
(Id. at Section .4(a)).
"The Part 16 process is the formal
administrative process by which the
FAA may make a formal agency finding
regarding an airport sponsor's status of
compliance with its federal obligations."
(Id. at Section 5.16). 14 CFR Part 16
contains the agency procedures for filing,
investigating, and adjudicating formal
complaints against airport operators.
This process is far more onerous and
requires that the Complainant have
engaged in good faith efforts to resolve
the matter before filing the Complaint
and further requires that Complainant
adhere to specific requirements for
filing and service. Additionally, Part 16
Complaints take significant periods of
time for the FAA to render a decision.
It is not unheard of for the FAA to
take more than four years to render a
decision on a single Complaint. Thus,
an aggrieved tenant should only resort

to a Part 16 Complaint in extreme cases
and only where the Part 13 Complaint
has failed to resolve the dispute.
WHAT SHOULD A TENANT
DO IF THE MINIMUM
STANDARDS ARE AMENDED
AND IT IS IMPOSSIBLE OR
IMPRACTICABLE FOR THEM
TO COMPLY?
Examples of updated Minimum
Standards that may be impossible for
a tenant to comply with include (1)
increasing or setting minimum space
requirements for operations when
there is no additional space available
on the airport; and (2) increasing
insurance coverages beyond what is
commercially available. Compliance
with the Minimum Standards would be
impracticable if the changes required to
comply with are overly burdensome or
cost prohibitive. For example, it would
be impracticable for (1) an existing tenant
to expend significant sums on capital
improvements on the tail end of a longterm lease; or (2) a tenant to comply to
a change to the Minimum Standards
designed to give a competitor an unfair
advantage.
If the Minimum Standards are
updated in a way that renders it
impossible or impracticable for a tenant
to comply, the tenant should carefully
evaluate whether it is possible or more
practicable for any other similarly situated
tenants to comply with the updated
Minimum Standards or whether the
updated Minimum Standards only
impact a single tenant. If other tenants are
similarly situated and it is also impossible
or impracticable for them to comply,
they are more likely to be successful in
achieving a satisfactory result by joining
together in seeking a resolution.
The tenant(s) must gather all the
evidence they can showing that it is
impossible or impracticable for them
to comply with the updated Minimum
Standards. This evidence showing the
impossibility and/or impracticability can
include, but is not limited to, contracts
or leases, minutes of meetings, letters,
Airport Layout Plan (ALP), grant
documents, financial statements, invoices,
receipts, visual inspection, photographs,
policy documents, procedures manuals,
independent analysis, records of

conversation, sworn testimony, or
corroborating statements.(See FAA Order
5190.6B, Chapter 5, Section 5.8(c)).
Once the evidence is gathered, the
tenant(s) should inform the Airport
Sponsor/Landlord and express concern
that it is impossible or impracticable
for them to comply with the updated
Minimum Standards. The goal of that
communication should be to engage the
Airport Sponsor/Landlord in a dialogue
aimed at reaching a mutually agreeable
resolution. The communication should
include a mix of calls, meetings and
importantly, written communications.
During this dialogue, the tenant
should present the Airport Manager/
Sponsor with the evidence documenting
why it is impossible or impracticable to
comply with the Minimum Standards
and offer reasonable and realistic options.
However, if an appeal to the Airport
Sponsor/Landlord is unsuccessful and
the Tenant remains in a situation where
it cannot reasonably comply with the
updated Minimum Standards within
the time required, the Tenant should
consider whether it is appropriate to raise
the issue with the FAA in the form of a
Part 13 Complaint. The Tenant should
provide the Airports District Office with
(1) a brief summary of the issue; (2) the
evidence it provided to the Airport
Sponsor/Landlord; and (3) describe
and/or provide evidence showing that
the tenant attempted to resolve the matter
with the Airport Sponsor/Landlord and
offered reasonable solutions which the
Airport Sponsor/Landlord rejected.
The FAA will (1) review the evidence
provided by the Tenant; (2) seek the
Airport Manager/Sponsor's position; (3)
try to reach an amicable resolution; and
(4) if a resolution is not possible, issue
its findings. In the event that the FAA
finds that the Airport Sponsor's amended
Minimum Standards conf lict with the
Airport Sponsor's obligations under the
Federal Grant Assurances, the FAA will
require that the Airport Sponsor provide
a plan for bringing the Airport back into
compliance within 30 days.
In closing, Tenants have both
informal and formal remedies when
Minimum Standards are updated midlease and it is impossible or impractical
for a tenant to comply. 

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Airport Business

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