Square Peg in a Round Hole: The Misguided Effort by Airports to Use the “Market Participant Exception” to Regulate Airlines and Aviation Service Providers

Recent initiatives by labor unions to persuade airports to use the so-called “market power exception” – also known as the “market participant doctrine” – to impose minimum wage levels, labor peace agreements, and other labor requirements on private companies doing business at or near airports is a bad idea that eventually will need to be addressed, and set right, by the courts. This paper argues that airports are in essence regulators, and to deny that reality and rebrand them as commercial market participants in order to allow unions to achieve social legislation by bypassing legislative bodies is poor policy and contrary to the purpose, intent, and judicial precedent of the market participant exception. The fact that governments own and operate airports, and airports are the site of commercial transactions, does not thereby mean that all airport transactions are commercial undertakings. Neither logic nor law allows for that outcome. If an airport operator enters the commercial market to purchase goods or services, it may act like a true market participant. However, the mere fact that commercial transactions take place at the airport does not render the airport a participant or party in those transactions. The paper urges an end to the pretense that the airports are parties to these commercial relationships, concluding that the market participant exception should not be stretched beyond situations in which the airport is truly a participant in the actual market at issue.


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Filing Info

  • Accession Number: 01724990
  • Record Type: Publication
  • Files: TRIS
  • Created Date: Dec 13 2019 9:29AM