While these calls can take many forms, the question we typically get at the end of the conversation is: “Well, what is my recourse?” Unfortunately, the answer we give—summarized below—is seldom satisfying to our members.
The first thing we talk about is FAA grant assurances. There are 40 grant assurances airports must generally comply with if they have received federal funding. Some of these grant assurances benefit airport tenants. For instance, Grant Assurance 22 requires airport sponsors “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.” But grant assurances that protect tenants at the airport are far from robust.
Second, there is state contract law. To the extent you are in an existing lease, there may be limits on what the airport can do to modify or cancel that lease. While contract law is generally a creature of state law, the general rule is that modifications of contracts cannot be unilaterally imposed. And while the airport kicking you out of the hangar may be a breach of the lease, it is just as possible that your lease contains a no-fault termination clause that allows the airport to terminate your lease on short notice. So again, the law may not provide much meaningful protection.
Lastly, there may be state or federal laws such as Consumer Protection laws, Unfair Trade Practices laws, or antitrust laws. But as these are state laws, there could be 50 different versions of them, each providing different remedies and examples of prohibited conduct. Further, the remedies may not be very impactful, especially considering the fees a member would incur in suing under them, if they even allow for private rights of action. Some may require a state attorney general to file suit.
Perhaps all of this brings us to the central point, which is that, unfortunately, airports have virtually all the bargaining power in these relationships. The airport can offer unfavorable terms on a take-it-or-leave-it basis. And if you “leave it,” your only other option is to try to find another airport to base your plane at. That airport could be very far and inconvenient. And even if you can find one, there is no guarantee that the lease terms offered will be any better than the terms you walked away from.
Our economic system presumes some competition to work. If a grocery store is charging too much for a bottle of soda, the grocery store the next block over will keep the first honest by charging less for soda and encouraging the first to be more reasonable in its pricing. But it does not work like that for airport hangar rentals. Unlike grocery stores, airports are not on every block. And the relative scarcity of airports means that they simply don’t have to compete like other businesses do. Not to mention that airports are typically owned and operated by state or local governments.
What should be done? At least with respect to federally obligated airports, the FAA could consider putting some teeth behind grant assurances. When an airport is to be available for “public use on reasonable terms,” the term “reasonableness” should have some substance to it. What the FAA should do or can do is beyond the scope of this one-page article. But states have long-established doctrines surrounding contractual unconscionability and contracts of adhesion. While these doctrines may not fit perfectly, if general aviation is worth preserving, the FAA should consider whether it is feasible to import some of these considerations into its interpretation of its grant assurances. Otherwise, the backbone of general aviation may be crushed by airports seizing their bargaining power to impose terms that pilots simply cannot meet.
