I am struggling to find the proper category for this one. I almost put it under "Intergovernmental Relations." Then, I thought, no, it’s really an attempt to generate revenue – "Concessions"? Endgame: I chickened out and chose "Airport Law – Generally." Love those catchalls.

So, it seems Allegheny County Council Member Ed Kress has an idea to generate some additional revenue for Pittsburgh Airport: sell the naming rights. Kress proposed his idea at his Council’s meeting this past Tuesday. The idea has generated much discussion, debate, criticism, and genuine musing … and I wonder: Can he really do that? I mean – legally?

Now, obviously, the FAA is the Keeper of the Code List – the list of three-letter abbreviations for commercial airports in the US. That most likely won’t change, and Kress admits as much. But if the Council, as the governing body of the owner of the airport, wants to change the name of the airport, what’s to prevent them from auctioning it off to the highest bidder? As long as the playing field is equal and all comers welcome – ah, well, there’s a potential glitch, isn’t there? Is the Midwest, for instance, ready for, say, Anytown-Jack Daniels Airport? (Nothing against Jack Daniels, at all. I mean – argh. Moving on.)

Interesting, as Peter Kirsch would say. I’ll keep my eye on this one.

Advertisements

What Happens in Tucson ….

October 29, 2005

… does not stay there. Here’s a brief overview of the workshop and its speakers, for those who weren’t able to attend.

As Tucson VP and counsel Marjorie Perry pointed out, not many people go to law school with the express purpose of becoming an airport attorney. It does seem that the vast majority (there are, apparently, two exceptions, both of whom were present at the workshop) sort of falls into this field. I was certainly no exception, coming to it from a strictly municipal/county law background. Therefore, the nature of the business can be overwhelming and at times frustrating for newcomers. As Stephen Kaplan of KKR pointed out, what the business of airport law really is, at times, is a "constant multi-dimensional chess game" – rather like that 3D chess they used to play on Star Trek. KKR and AAAE staff are to be commended for putting together an incredible program that eased folks into this field, and still managed to teach us "old dogs" some new tricks – no mean feat!

The first day of the workshop in Tucson began with an excellent overview of the "basics" – some terminology, and Dan Reimer’s "Top Ten" airport concepts. Number one ("Airport proprietors are in the driver’s seat") and number five ("The forum in which disputes are litigated often is critical to the outcome") were especially timely, I thought. Dan and Frank San Martin also spoke on "Airport Operations" generally, addressing such diverse topics as the FAA structure and functions, airport operating certificates and requirements, and airport rules and regulations and Minimum Standards.

We also heard from Peter Kirsch and Roger Johnson (who, as a former LAX operations director, claimed rights as "the only one in the room Heather Locklear has ever played"), who talked about Airport Development Issues. Any new capital project can implicate a wide variety of laws, and Roger and Peter pretty much hit them all – FAA approvals, NEPA and other environmental review processes, noise evaluation and mitigation, land acquisition programs, zoning and other local land use laws, and height restrictions.

We rounded out the first day with a very interesting roundtable, in which many of the speakers (including myself) participated. The hypotheticals that were presented, during a Peter Kirsch-moderated discussion, were terrifyingly true-to-life, all centering around the essential and eternal conflict – "Who’s really the client?" Is it your mayor in a strong mayoral form of municipal government? The rogue city council person who has some Top Secret plan for airport development he’s enlisted you, the hapless airport attorney, to implement behind the director’s back? The commission as a whole? I’m still not sure how many answers we came up with, but I hope we at least gave some guidance and "food for thought" – I also hope we didn’t completely scare off the new kids.

On the second day, Francine Kerner, Chief Counsel of TSA, spoke about the interplay between TSA personnel and local LEOs and airport officials, and the need to recognize the overlapping jurisdictional issues that arise in the airport security context. Scott Dalton, a TSA attorney in DC, and some of his colleagues followed up, and gave us all some helpful tips on working with TSA in the areas of checkpoint reimbursement agreements, LEO agreements, letters of intent and the screening partnership program.

Allow me a brief digression here: Those of us from airports universally agreed that it was great to see so many TSA attorneys at this conference. Other attorneys I know who work in other fields that relate with and to federal attorneys claim their federal counterparts are not nearly so accessible and even seem a little isolated. Not so with TSA and FAA, and that’s a credit to their GCs and staff attorneys. It would seem to indicate a culture of cooperation that’s very helpful.

As a further illustration of this point, Jonathan Cross and Frank San Martin from FAA taught us about "PGLs" (Program Guidance Letters, pronounced "piggles" which – well, all I can see now is Porky Pig’s face on the FAA letterhead, so thanks for that), illuminated the byzantine maze that is collectively the sponsor assurances, and gave us a new website that the FAA is working on which should give us all free access to Part 16 decisions: http://agc.crownci.com/index.cfm – which is now going up in the "Useful Links" typelist on this page. Especially helpful was a breakout session in which real-life grant documents were passed around for the new AAs to take a look at. Jonathan and Stephen Kaplan teamed up also to present a very thorough and frank look at airport financial issues – including great perspectives on the "granddaddy" issue where the FAA is concerned – revenue diversion.

Helen Raabe from Denver earned the title of "Hardest Working Woman in the Airport Law Business" by leading three sessions consecutively on ground transportation, bankruptcy, and our joint session on "the business of airports" from the commercial airport perspective. With regards to the impact of airline bankruptcies on airports’ bottom lines, Helen counseled us to consider the importance of the carrier to the overall traffic at our airports, the amount of prepetition debt owed, and whether the case had any special complexities (i.e., whether the airport had entered into an agreement with the carrier that could be construed as a financing agreement as opposed to a "true lease" – more on that issue in a subsequent post) when we’re trying to decide whether to hire outside counsel.

In the business of airports presentation, Helen and I focused on airline use and lease agreements, concession agreements, and First Amendment issues. We discussed the recently decided Rendon case and some hypothetical issues concerning statues, fountains, and intranets-as-public-fora. I gave some practice tips concerning concession agreements (which I’ll recap in a subsequent post), and Helen talked about residual vs. compensatory and hybrid rate-setting models in the AULA context.

Other breakout sessions on the second day that I wasn’t able to attend included discussions on GA security issues, the business of GA airports (including through-the-fence agreements and procurement issues), aircraft operating restrictions, and airport’s obligations to users.

John Putnam and I wrapped things up on the last day with an extended discussion of compliance and enforcement issues. We had decided to approach this by way of a (hopefully entertaining) hypothetical airport – Mosquito Beach, the airport only a lawyer could love. (Not to be confused with any other airport that starts with an "M" and ends with a "beach" – just wanted to make that clear!) Through a convoluted fact pattern involving waste dumps, whistleblowing, seagulls being sucked into aircraft engines, and abandoned barrels of solvents, we talked about RCRA, DBE rules, employment discrimination and Title VII, the Part 16 process, and the importance of environmental management programs in your overall compliance efforts.

Before the conference and during breaks on the first day, I spoke with quite a few newly minted airport attorneys (you know, I’m just going to call us "AAs" from here on out) who, to a one, confessed to feeling overwhelmed at their new responsibilities and especially making sense of a convoluted, complex, multi-layered regulatory scheme involving multiple agencies and stakeholders, and all in the context of municipal/county/state government or public law functions. I can only say what I said to them: "Everyone feels the same way. Even now, at times."

A Rousing Success

October 28, 2005

Congratulations to Kaplan Kirsch Rockwell, its partners involved in the seminar this past weekend (Stephen Kaplan, Peter Kirsch, John Putnam, and Dan Reimer), AAAE (especially Tom Zoeller), and all of my fellow speakers – I think this was the "best yet" Basics of Airport Law Seminar.  A very special thank you to Kristen McLellan who performed countless "thankless" tasks graciously and (seemingly) effortlessly!

For those who didn’t make it, or for those who did and would like a brief recap, I’ll be posting summaries of the speakers and topics over the next few days. One comment I heard repeatedly was how wonderful the materials and outlines prepared by KKR were – I agree completely. One of the comments made during the last day concerned a possible "Airport Reporter" – some publication that could collate all these difficult diverse topics into one bound offering. Tom Zoeller remarked that it was incredibly expensive and time-consuming not only to collate such materials but to offer them in updated fashion in perpetuity; but others suggested to me privately, later, that these outlines could serve as the first incarnation of such a publication. There may be something to that.

Other upcoming topics are "inspired by" discussions held at the conference, and include:

  • The application of the "secondary containment" rule to airport fueling vehicles by the EPA;
  • Comparison of the DBE rules in Part 26 and the "new" rule for airport concessions, Part 23;
  • When to hire bankruptcy counsel;
  • How to "manage" relationships with elected and appointed officials;
  • And more – I’m open to suggestions, folks!

Good question.  In one sense, at least, it’s not so much one thing, as it is dozens of things, all in the airport context, such as …

  • Commercial lease of real property;
  • Contracts – negotiation, drafting, interpreting, and litigating;
  • Employment law (FLSA, USERRA, FMLA, ADA – just to name a few);
  • Ethics and professional responsibility law;
  • Construction law (itself an amalgamation of contracts, litigation, tort);
  • Administrative law (with respect to its various obligations to federal agencies and with respect to its role as a public body or the arm/agent of a public body);
  • Environmental law (as owner of property on which potentially hazardous materials are frequently utilized);
  • Insurance defense law (tort claims against the airport – slips on the escalator, falls on an icy sidewalk, an abusive passenger escorted off a plane by a law enforcement officer, etc.)
  • Collections litigation (tenants and permittees who don’t pay their bills or Minimum Annual Guarantees);
  • Civil rights law (both in the treatment of individuals and the access to business opportunities at the airport);
  • Even constitutional issues (including First Amendment law).

That being said, of course, there are certainly unique aspects to airport law:

  • Sponsor assurances from the receipt of U.S. Department of Transportation grant funds (primarily through the FAA);
  • Deed restrictions on the use and disposal of airport property (same source);
  • Limitations and requirements of rate-setting for airport users (both aeronautical and non-aeronautical, such as concessions, etc.);
  • Compliance issues with respect to FAA certification; and
  • Relationship with and obligations to the Transportation Security Administration (TSA).

Then there are the issues that pertain to any local public body:

  • Public procurement and contracts; 
  • Public/government ethics;
  • Limitations on the use of public funds;
  • Issues pertaining to representative government, boards/commissions, parliamentary procedure, etc.;
  • And much more.

All these functions and issues can arise daily in a commercial airport (somewhat less frequently at a GA airport), and in each case, it is the airport attorney’s job to render competent legal counsel to the technical and professional staff – to enable them to do their jobs, maintain high safety/security standards, comply with all applicable legal requirements, and render excellent service to the flying public (and their governing body).