If enacted, proposed legislation would change the landscape for “through-the-fence” operations at public use airports that receive Federal funding. Through-the-fence [TTF] operations occur when an airport sponsor enters into an agreement that permits access to airport taxiways, runways and facilities by aircraft based on land adjacent to, but not part of, airport property. TTF operations range from off-airport fixed base operators [FBOs] who provide aeronautical support and services, and often compete with on-airport FBOs to provide the same support and services, to residential TTF agreements that grant airport access from hangars and homes located on private property adjacent to an airport [also known as “fly-in communities” or “residential airparks”]. Historically, the Federal Aviation Administration [FAA] has “discouraged” TTF operations at Federally funded airports, especially by FBOs that would compete with on-airport FBOs. The FAA has approved some residential TTF agreements on a case-by-case basis.

Supporters of residential TTF operations contend that they provide several significant advantages, in that they tend to: (1) attract “airport friendly” neighbors who are not adverse to airport noise; (2) improve the economic viability of an airport by: (a) generating increased airport revenue through access fees and increased purchases of fuel and on-airport aeronautical services; (b) increasing airport activity without the need for additional capital investments such as hangar and tie-down construction; and (c) reducing the airport operator’s reliance on Federal and state funding, thereby making the airport more self-sustaining; and (3) engender public support for the continued operation of the adjacent general aviation airport at a time when many general aviation airports are being threatened with closure. Opponents, including the FAA, argue that residential TTF operations create incompatible land uses, adversely impact airport safety and compromise airport security.

In September, 2009, the FAA revised its Airport Compliance Manual [FAA Order 5190.6B], and now effectively prohibits all TTF operations at Federally funded public use airports. Under Section 12.7 of the new Order, the FAA will not, as a general principle, support TTF agreements that grant airport access by aircraft stored or serviced on off-airport property. According to the FAA, such agreements could lead airport sponsors to violate their obligations under their Federal grant assurances. [Airport sponsors incur certain express obligations in exchange for receipt of Federal funds for airport development and improvements.] The FAA takes an even firmer stance with regard to residential TTF agreements. “Under no circumstances is the FAA to support any ‘through-the-fence’ agreement associated with residential use since that action will be inconsistent with the federal obligation to ensure compatible land use adjacent to the airport.” FAA Order 5190.6B, Sec. 12.7. In a subsequent Compliance Guidance Letter 2009-1, the FAA reemphasized that “[t]here are no acceptable forms of residential TTF agreements,” and “[n]o exception will be made to permit TTF access . . . for residential airpark purposes.” If enacted, two bills recently introduced in Congress would preempt the FAA’s prohibition of residential TTF agreements.

H.R. 4815, introduced by Representatives Graves (R MO) and Boswell (R IA) [H.R. 4815], and Senate Amendment 3544 to H.R. 1586, introduced by Senator Inhofe (R OK), would amend Title 49 of the U.S. Code to create the “Community Airport Access and Protection Act of 2010.” Under the two bills, which are virtually identical, a sponsor of a general aviation airport would not be considered in violation of its grant assurances solely because the sponsor entered into a TTF agreement, so long as the agreement is in writing and prescribes the rights, responsibilities, charges, duration and other terms necessary to establish and manage the airport sponsor’s relationship with the property owner. Further, the agreement must require, at a minimum, that the property owner: (1) pay airport access charges that are not less than those charged to on-airport tenants and operators making similar use of the airport; (2) bear the cost of building and maintaining the infrastructure necessary to provide access to the airport; and (3) conduct construction on, and operate and maintain the property in a manner that: (a) does not alter airport facilities; (b) does not adversely affect the safety, utility, or efficiency of the airport: (c) is compatible with the normal operation of the airport; and (d) is consistent with the airport’s role in the National Plan of Integrated Airport Systems [NPIAS]. The Senate Bill also provides that the property owner must maintain the property for residential, noncommercial use for the duration of the agreement and prohibit access to the airport from other properties through the property owner’s property. If enacted, the Community Airport Access and Protection Act could preempt Section 12.7 of the FAA Airport Compliance Manual under the Federal Preemption Doctrine.