Originally published in 2000
By Jim Cummins
This installation of airport compliance deals with exclusive rights, which are defined as any power, privilege, or right excluding or preventing another from enjoying or exercising a similar power, privilege, or right. Questions of exclusive rights are normally associated with suppliers of various airport services or products such as fixed base operators or fuel providers and not so much with the airport users. Exclusive rights may become established intentionally by contractual agreements or unintentionally by the imposing of unreasonable standards or requirements. Either way, the establishment of exclusive rights for any aeronautical activity at an obligated airport is normally not permitted under the sponsor assurances.
If public money is used to build, maintain, or improve an airport, the public must have equal access to that airport both as user and service provider. The presence of only one provider of aeronautical services or products on an airport would not be considered an exclusive right unless there is evidence that the sponsor has made an effort, either intentionally or unintentionally, to exclude or prevent other qualified applicants from being able to provide similar services or products.
Like most things dealing with compliance, there are exceptions. For example, it would not be considered an exclusive rights violation for the owner of an airport to be the sole provider of any aeronautical service or product to the public. If this option is taken, the sponsor may deny other requests to provide that same service to the public and not be considered as being in noncompliance with its sponsor assurances. The sponsor has this ability as long as the necessary equipment to provide that service or product is owned or controlled by the sponsor and operated by the sponsor’s employees.
The sponsor could not claim this exclusive right if the equipment is operated by a third person. That would be considered to be a service or product provided by that third party and not by the sponsor. The sponsor is required by its grant assurances to reasonably accommodate any “need” for aeronautical services or products. Need would be established whenever someone is “willing and able” to set up an operation and makes a request. No other justification for need is required. The “willing” part would be met when a request is made, but the definition also includes the word “able.” It is certainly within the rights, as well as the responsibility, of the airport sponsor to assure persons requesting to open a business on the airport have sufficient funding, equipment, and expertise to open that business; meaning they are “able.” It would be too subjective on the part of the sponsor to deny such a request based on an opinion that the business would not succeed.
All the sponsor should consider is whether the business is able to open. Suppose someone wants to set up a second public fuel operation at an obligated airport. The incumbent fuel provider argues there is not need for a second operation because there is not sufficient business to support both. However, if there is “need” for additional fuel providers as established by the “willing and able” test, the sponsor must take steps to reasonably accommodate that need. According to the sponsor assurances, public money demands equal public access both as user and service provider.