AFTER ALL
FAA’s Revised Airport
Compliance Manual:
A Good Resource
for Consultants
By Jack Corbett, Law Firm of Spiegel & McDiarmid LLP
On September 30th FAA’s Office of Airport ing whether a private for-profit company could
Programs released the long-awaited revision operate all or certain functions of an airlineof its FAA Airport Compliance Manual, served airport more cost-effectively than public
designated FAA Order 5190.6B. This version, a employees.
massive 691 pages containing some 23 chapters
and 28 appendices, replaces the original 83-page The revised Manual also describes many traditional FAA requirements that are mandated by
document issued exactly twenty years ago.
those 39 grant assurances: What does keeping
Technically, the Manual is a guidance document an airport “open and available” mean? How are
to help FAA personnel monitor compliance defensible “minimum standards” for commercial
by airport sponsors with the contractual aeronautical users set? How and why does
commitments (i.e. grant assurances) those FAA currently review airport agreements with
public agencies have made in accepting federal airlines and other aeronautical leases?
airport development, noise abatement or
planning grants, or in receiving federal real or Airline Incentive Program
personal property.
Guidance Omitted
The new Manual does have two noteworthy
More practically, the Manual is a clear, omissions. The revised version has only a few
accessible, comprehensive compendium of most sentences of guidance about the incentive
of the various FAA airport program requirements programs for new airline service that more
that airport staffs have to fulfill. As such, it’s a airport sponsors are now adopting. FAA plans
valuable source of basic, descriptive information to issue a separate booklet on this topic, Air
to familiarize airport managers — and their Carrier Incentive Program Guidebook — A
airport consultants — with the limitations Reference for Airport Sponsors, by the end
Congress has imposed through the years on of 2009. The requirements for airline-served
airports that are receiving federal grants or airport certification (FAR Part 139 Regulation)
surplus property.
are excluded because FAA’s primary leverage
lies in threatening to lift the certificate, not
Helpful Overview of FAA Rules withholding eligibility for further airport grants.
Many new topics are explained corresponding
to the many new FAA airport programs and When An Airport’s Compliance
policies that have been added over the past two is Challenged
decades: details of Airport Revenue Diversion Lastly, the new document describes how
law and policy (1999 & 2008); current inter- FAA’s compliance program operates when an
pretations of Airport Rates and Charges Policy airport sponsor’s action is challenged. Airport
(1996); rules and regulations under the Airport managers — and some airport consultants —
Noise and Capacity Act (1990), describing what should know the basic protocol. Under the FAR
airport operators can (and mostly can’t) do to Part 13 Regulations, almost any person can
regulate aircraft operations for noise abate- file an informal complaint with FAA alleging
ment; and opportunities for Airport Privatization that an airport sponsor is violating its written
(1996). Given the current weak budgets at many federal commitments, and FAA’s regional
airports, some airport commissioners are ask- staff must investigate. Since 1996, FAA has
20
Consulting, Winter 2009/10
also had a formal administrative complaint
process solely for airport compliance issues
(FAR Part 16 Regulation). As described in the
Manual, an affected complainant (generally
an FBO) can require FAA to make findings,
reviewable by Federal Circuit Courts, as to
whether, for example, an airport is guilty of
“unjust economic discrimination” against the
complainant or has given an “exclusive right” to
another aeronautical user at the airport.
FAA can rule on the reasonableness of airport rates and charges imposed on airlines
under Part 16 or, alternatively, an airline or
airport can have the parent U.S. Department
of Transportation make a judicially-reviewable
formal determination in 120 days under the
so-called DOT “rocket docket” (DOT Part 302
Regulation). While these formal processes
require lawyers to prepare briefs, airport consultants often provide the factual materials that
are the real “evidence” in those proceedings.
Suggestions for Airport
Consultants
Most airport consulting firms would be wise to
print out a hard copy of the 300 pages of the
new Manual, skipping the appendices, and
letting relevant staff know where that looseleaf binder will be kept. Employees who advise
airport sponsors on matters at all connected to
those federal contractual obligations ought to
be encouraged to browse through its chapters,
just for general familiarity with the content.
Even though the Manual is in effect now, FAA
will accept comments (for corrections and
clarifications, not policy changes) until March
31, 2010.
The new FAA Airport Compliance Manual can
be found at http://faa.gov/airports//publications/
orders/compliance_5190_6/pdf.