dissenting:
The majority holds that the Arapahoe County Airport Authority’s (Authority) ban on scheduled passenger service is not preempted by 49 U.S.C. § 41713(b)(1) (1994) because the ban does not relate to rates, routes, or services. See maj. op. at 595. The majority also determines that the ban is not preempted because it falls within the proprietary powers exception to preemption set forth in 49 U.S.C. § 41713(b)(3) (1994), and that the ban is valid because it does not violate federal funding regulations. See id. at 595, 596. The majority reasons that the district court’s exercise of jurisdiction in this ease is appropriate because the state court system need not defer to the Federal Aviation Administration (FAA) of the Department of Transportation (DOT) regarding the applicability of the proprietary powers exception and the validity of this state regulation under federal funding requirements. See id. at 592.
I agree with the court of appeals’ decision that the Authority’s ban on scheduled passenger service is preempted by federal law, and that the applicability of the proprietary powers exception to the preemption statute should be determined by the FAA in keeping with the doctrine of primary jurisdiction. I would additionally hold that the state court system should defer to the FAA on the allegations of federal funding violations. Therefore, I believe the court of appeals was correct to reverse the injunction entered by the district court. While I agree with the majority that state courts and the FAA possess concurrent jurisdiction over the applicability of the proprietary powers exception and the question of whether the Authority’s ban violates federal grant assurances, I would not address either issue and would defer to the FAA because both issues present important policy considerations properly resolved by a federal administrative agency. In addition, the exercise of jurisdiction by our state court system involves a high risk of inconsistent results between our state system and the federal administrative forum. Thus, I would *600affirm the decision of the court of appeals, and I respectfully dissent from the majority opinion.
I.
Centennial Airport was founded in 1967. Construction of the airport was made possible by $30.1 million in federal grants given in exchange for the Authority's assurances that “the airport will be available for public use on reasonable conditions and without unjust discrimination,” 49 U.S.C. § 47107(a)(1) (1994), and that the airport would be “open to all types, kinds, and classes of aeronautical use on fair and reasonable terms without discrimination between such types, kinds, and classes ... [unless] such action is necessary for the safe operation of the Airport or necessary to serve the civil aviation needs of the public.” 14 C.F.R. § 152, app. D, ¶ 18 (1997). Use of the airport is governed by state and federal law and by regulations promulgated by the Authority. Because the Authority is a political subdivision of the state, these regulations, entitled “Minimum Standards for Commercial Aeronautical Activities” (“Minimum Standards”), have the force and effect of state law. See § 41-3-102, 11 C.R.S. (1997) (the Authority is a political subdivision of the state); cf. § 41-3-106(l)(h), 11 C.R.S. (1997) (conferring power to regulate certain airport activities).
The airport was designed as a general aviation airport and therefore lacks the facilities associated with commercial passenger air transport, such as a terminal or baggage system. Nonetheless, the Authority historically has allowed certain types of passenger services — unscheduled passenger services— at the airport. Unscheduled passenger services are those in which the flight times and destinations are not offered to the public in advance. Cf. 14 C.F.R. § 119.3 (1997) (“defining scheduled passenger service”).1 Instead, unscheduled passenger services allow an individual to contact the airline and arrange for private transportation, but at a high price. Examples of unscheduled passenger services include air taxis and charter flights. Many of the companies offering unscheduled passenger services at Centennial Airport operate pursuant to a “Part 135” air carrier certificate2 issued by the FAA. A Part 135 air carrier certificate authorizes the use of airplanes that have up to thirty seats and weigh no more than 75,000 pounds when fully loaded. See id. A Part 135 certificate allows an operator to conduct unlimited unscheduled passenger services but limits an operator to conduct no more than four scheduled round trips per week on at least one route between two or more points. See id. The Authority permits many other commercial activities, including air cargo, commercial flying clubs, flight training, and sightseeing tours.
Various parties sought the Authority’s permission to initiate scheduled passenger service at Centennial Airport and were denied. On July 21, 1993, the Authority sent a letter to the DOT requesting the DOT’s opinion on whether the Authority could deny applications for scheduled passenger service without violating federal law. In September of 1994, the Authority amended the Minimum Standards to prohibit scheduled passenger service.3
*601Shortly thereafter, the DOT mailed a letter to the Authority in response to the Authority’s inquiries. In this letter, the FAA stated that although the information provided by the Authority was not sufficient to allow the FAA to reach a conclusive determination, the exclusion of a particular class of service, such as the Authority’s ban on scheduled passenger service, is generally arbitrary and invalid. The FAA then stated that the Authority’s ban on scheduled passenger service raised important policy questions regarding harmonizing regional planning with national aviation requirements, and that the FAA would commence a proceeding to “obtain a full range of views on this issue.”
Centennial Express operates charter services out of Centennial Airport under an agreement with the Authority in which Centennial Express agreed to use the airfield in accordance with state and federal law and in conformity with the Minimum Standards. On December 20, 1994, Centennial Express obtained a Part 135 air carrier certificate from the FAA. The air carrier certificate authorized Centennial Express to provide scheduled passenger services in the contiguous United States, Alaska, Canada, and Mexico. The certificate further authorized Centennial Express to carry up to thirty passengers for four scheduled round trips per week, per destination. The same day, Centennial Express, acting unilaterally, began its FAA-approved scheduled passenger service on its King Air aircraft,4 with routes including service to Centennial Airport.
Upon learning that Centennial Express was conducting scheduled passenger service in violation of the Minimum Standards, the Authority filed suit against Centennial Express in district court. The Authority sought a permanent injunction prohibiting Centennial Express from providing scheduled passenger service at Centennial Airport.
Centennial Express raised several affirmative defenses. It argued that the Authority’s prohibition on scheduled passenger service was not valid because the ban violated the Authority’s grant agreements with the federal government by discriminating unjustly between classes of airport users. In its view the Authority’s ban discriminated against scheduled passenger service because the Authority permitted unscheduled passenger services in the form of
charter service, air cargo service, corporate jet service, private aircraft of all sizes and kinds, planes noisier than Centennial Express planes, or planes identical to or larger than Centennial Express planes. [The Authority] does not seek to exclude all holders of Part 135 air carrier certificates, the certificate held by Centennial Express. [The Authority] does not seek to prohibit the frequency of any kind of flight in and out of the Airport, but merely seeks to discriminate against scheduled passenger service.
Additionally, Centennial Express argued that the ban was unenforceable because it was preempted by 49 U.S.C. § 41713(b)(1), which provides in pertinent part:
Preemption. (1) Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.
The Authority countered that the prohibition on scheduled passenger service was not preempted by 49 U.S.C. § 41713(b)(1) because subsection (3) of the same statute contains an exception that allows airport proprietors to promulgate regulations necessary to protect their rights as proprietors.- Subsection (3) provides:
*602This subsection does not limit a State, political subdivision of a State, or political authority of at least 2 States that owns or operates an airport served by an air carrier holding a certificate issued by the Secretary of Transportation from carrying out its proprietary powers and rights.
49 U.S.C. § 41713(b)(3). Centennial Express argued that the proprietary powers exception did not apply because this exception is narrow and does not permit a proprietor to enact discriminatory regulations in direct conflict with federal anti-discrimination requirements.
The district court determined that Centennial Express’s operation of scheduled passenger service violated the Minimum Standards. The district court rejected the affirmative defenses raised by Centennial Express, stating that the ban did not constitute unjust discrimination under the federal grant agreements and that the ban was not preempted because it was within the scope of the Authority’s proprietary powers.
Centennial Express filed a formal complaint against the Authority with the FAA, alleging that the Authority’s ban on scheduled passenger service is invalid because it is discriminatory, in violation of federal funding regulations.5 Centennial Express also appealed to the court of appeals. The court of appeals reversed, holding that the prohibition was preempted by 49 U.S.C. § 41713(b)(1) and that the applicability of the proprietor’s rights exception contained in 49 U.S.C. § 41713(b)(3) was a matter that must be determined by the FAA rather than the state courts. The court of appeals did not address the issue of federal funding. The Authority then petitioned this court for certiorari review.
II. Preemption
The majority holds that the Authority’s ban on scheduled passenger service is enforceable because the ban does not fall within the scope of the express preemption statute, 49 U.S.C. § 41713(b)(1). See maj. op. at 594. I disagree.
The Supremacy Clause of the United States Constitution authorizes Congress to enact legislation that preempts state law. See U.S. Const. art. VI, cl. 2. Preemption occurs in one of three ways: by express terms, by implication when Congress regulates an area in a comprehensive fashion, or by a conflict between federal and state law. See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 1676, 131 L.Ed.2d 695 (1995).
In 1978, Congress enacted the Airline Deregulation Act (“ADA”) which largely deregulated domestic air transport. “To ensure that the States would not undo federal deregulation with regulation of their own, the ADA included a pre-emption provision, prohibiting the States from enforcing any law ‘relating to rates, routes, or services’ of any air carrier.’ ” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-79, 112 S.Ct. 2031, 2033, 119 L.Ed.2d 157 (1992).
In Morales, the United States Supreme Court explained that the phrase “relating to” should be interpreted broadly and that “[sjtate enforcement actions having a connection with or reference to airline ‘rates, routes, or services’” are preempted. Id. at 384, 112 S.Ct. at 2037. For example, in Morales, the court held that state requirements on the airlines’ advertisement of fares was preempted. The Court determined that the restrictions would have a significant impact on the airlines’ ability to market their product, which in turn would have a significant impact on the fares the airlines charged. Thus, the restrictions “related to” rates and were preempted.
Similarly, the Authority’s ban on scheduled passenger service at Centennial Airport significantly impacts the service that Centennial Express provides at the airport and the services available at Centennial Airport to the citizens of our state who wish to travel to the destinations that Centennial Express seeks to serve — Dalhart and Amarillo, Texas; Colorado Springs; and Grand Junction.
The policy underlying the ADA supports the view that the Authority’s ban on sched*603uled passenger service is preempted. The ban is inconsistent with the ADA’s goals of furthering “the availability of a variety of adequate, economic, efficient, and low-priced services,” 49 U.S.C. § 40101(4) (1994), and “encouraging entry into air transportation markets by new and existing air carriers and the continued strengthening of small air carriers to ensure a more effective and competitive airline industry.” 49 U.S.C. § 40101(13) (1994).
The majority relies upon Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995), for the proposition that the ban does not relate to “services” because the definition of “services” provided by an airline does not include the transportation itself. See maj. op. at 594-595. I agree with the majority that Hodges is instructive in this case; however, I read Hodges to compel the opposite conclusion — that the transportation provided by an airline is a “service”:
Elements of the air carrier service ... include items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself.
Hodges, 44 F.3d at 336 (emphasis added); see also Butcher v. City of Houston, 813 F.Supp. 515, 517-18 (S.D.Tex.1993).6 Thus, I disagree with the majority’s determination that transportation is not a “service” for purposes of 49 U.S.C. § 41713(b)(1).
The majority holds that the ban affects services in “ ‘too tenuous, remote, or peripheral a manner’ to have pre-emptive effect.” Morales, 504 U.S. at 390, 112 S.Ct. at 2040 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100, 103 S.Ct. 2890, 2901, 77 L.Ed.2d 490 (1983)). It is true that the phrase “relate to” has its limits. For example, in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995), the Supreme Court held the words “relate to” in the ERISA preemption provision did not displace a state regulation that required hospitals to assess a surcharge on certain patients. Id. at 661, 115 S.Ct. at 1679. The Court determined that the connection between the surcharge and ERISA benefit plans was too remote.
In my view, Travelers is not similar to the Authority’s ban on scheduled passenger service at Centennial Airport because the ban on scheduled service substantially relates to the services offered by Centennial Express. This connection is significantly greater than the tenuous connection presented in Travelers. The Authority’s ban is more analogous to the prohibition in Morales, which “ ‘plainly does not present a borderline question.’” Morales, 504 U.S. at 390, 112 S.Ct. at 2040 (quoting Shaw, 463 U.S. at 100, 103 S.Ct. at 2901); see also American Airlines, Inc. v. Wolens, 513 U.S. 219, 226,115 S.Ct. 817, 823, 130 L.Ed.2d 715 (1995) (stating that frequent flier programs unquestionably “related to” rates for purposes of 49 U.S.C. § 41713(b)(1)).
The Supreme Court instructs us to interpret the words “relate to” in 49 U.S.C. § 41713(b)(1) broadly. See Morales, 504 U.S. at 383-84, 112 S.Ct. at 2036-37 (citing numerous cases in which the court emphasized the broad scope of the phrase “relate to”). The majority’s determination that the Authority’s ban does not “relate to” services is inconsistent with this mandate. For the above reasons, I would hold that the Authority’s ban on scheduled passenger service “relates to” services and is explicitly preempted by 49 U.S.C. § 41713(b)(1).
III. Doctrine of Primary Jurisdiction
The majority chooses to address the scope of the proprietary powers exception and Centennial Express’s assertion that the Authority’s ban is unenforceable because it conflicts with the Authority’s federal funding assurances. The majority chooses not to defer to the FAA on these issues, in part because of the failure of the FAA to act promptly in this *604matter and Centennial Express’s unilateral action of conducting scheduled passenger service in direct conflict with the Authority’s Minimum Standards. I agree that the delay in the administrative forum and Centennial Express’s violation of the Minimum Standards are regrettable and unfortunate. However, on balance, I believe this court should defer to the FAA’s jurisdiction on both the proprietary powers question and the federal funding issue in keeping with the doctrine of primary jurisdiction.
The doctrine of primary jurisdiction, also known as the deference doctrine, is “a means of coordinating administrative and judicial machinery” to promote consistent decisions that reflect agency expertise. Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 580 (1st Cir.1979). The doctrine does not determine the existence of jurisdiction. Instead, it “comes into play only when both the court and the agency have jurisdiction over at least portions of the dispute.” Id. at 581 n. 1. The issue “is one of harmony, efficiency, and prudence.” Id.
In determining whether to defer to an agency, courts should examine three factors: “(1) whether the agency determination lay at the heart of the task assigned the agency by Congress; (2) whether agency expertise was required to unravel intricate, technical facts; and (3) whether, though perhaps not determinative, the agency determination would materially aid the court.” Id. at 580-81. Another consideration may be whether the agency has an established procedure designed to resolve particular kinds of disputes. See id. at 581.
Here, Centennial Express has filed a formal complaint with the FAA alleging that the Authority’s ban on scheduled passenger services is discriminatory and therefore invalid under federal funding regulations. The state court system is confronted with the same question: whether the Authority’s ban is non-discriminatory. This is because both the applicability of the proprietary powers exception and Centennial Express’s federal funding argument depend on the determination of that question. See Midway Airlines, Inc. v. County of Westchester, 584 F.Supp. 436, 440-41 (S.D.N.Y.1984) (airport regulations imposed pursuant to proprietary powers must be reasonable, non-arbitrary, and non-discriminatory); City of Dallas v. Southwest Airlines Co., 371 F.Supp. 1015, 1028-29 (N.D.Tex.1973) (an airport regulation that conflicts with federal non-discrimination requirements will not be upheld and is in violation of the federal funding assurances).7 I agree with the majority that we possess concurrent jurisdiction with the FAA on whether the Authority’s ban is non-discriminatory. See County of Broome v. Commuter Airlines, Inc., 83 A.D.2d 742, 442 N.Y.S.2d 652, 654-55 (1981) (stating that state courts have jurisdiction to determine the applicability of the proprietary powers exception); City of Dallas, 371 F.Supp. at 1028-29 (finding an airport proprietor in violation of federal funding requirements).
As I read the sparse precedent in this area, discrimination may occur not only within a class of aeronautical users, but also between classes of aeronautical users. See City of Dallas, 371 F.Supp. at 1031. In City of Dallas, the court held that prohibition of scheduled passenger service at an airport that permitted passenger charter flights im-permissibly discriminated between classes of airport users. See id. In reaching this conclusion, the court stated:
[Cjharter flights carrying passengers for hire on an unscheduled basis will continue *605to operate out of Love Field.... [S]ome of the operations to remain at Love Field will use planes larger than Southwest’s; some will use planes noisier than Southwest’s; some will use planes identical to Southwest’s....
... In place of the preference accorded mass transportation ... Plaintiffs herein, in determining who shall have access to Love Field, have preferred private aircraft, corporate jets, unscheduled cargo flights, maintenance flights, and ferry flights over Southwest’s commercial service. ...
... Plaintiffs’ unsystematic classification discriminates ... between uses within the same general class.... Charter flights, which may use larger or smaller aircraft than Southwest Airlines, may remain at Love Field, while Southwest Airlines must go.
Id. at 1028, 1029, 1031; see also Midway, 584 F.Supp. at 440-41 (holding application for access to airport in abeyance was a valid exercise of proprietary powers because airport board was not banning a particular user from the airport, only asking for adequate time to formulate plans to allocate scarce resources).
The majority’s discussion of proprietary powers fails to address the non-diserimination requirement of the proprietary powers doctrine. In a separate discussion dealing with the issue of whether the Authority is in violation of its grant assurances of non-discrimination, the majority states that “the Authority is not discriminating against a particular operator because the ban on scheduled passenger service applies to all airport users equally.” Maj. op. at 596. In other words, the majority holds that the ban is not discriminatory because the Authority has never allowed scheduled passenger service at Centennial Airport. See id. at 596 n. 12. The majority attempts to distinguish City of Dallas on the basis that the ban on scheduled passenger services in that case prohibited operations previously allowed at the airport, while the Authority has never permitted unscheduled passenger services at Centennial Airport. See id. (discussing City of Dallas).
However, the rationale of the opinion in City of Dallas did not turn on the airport’s previous consent to the operations they subsequently sought to prohibit. Rather, the critical holding of City of Dallas is that discrimination occurs not only within a class, but also between classes. See City of Dallas, 371 F.Supp. at 1031. Although it is accurate to say that the Authority’s ban on scheduled passenger services applies equally to all airport users, this fact does not cure the discrimination occurring in this ease when the Authority permits other carriers to provide unscheduled passenger services using similar planes, similar flight patterns, making the same or more noise, and carrying the same or greater number of passengers as Centennial Express would in providing scheduled passenger service, as our record here shows. Hence, even assuming that the Authority’s ban on scheduled passenger service falls within the scope of the proprietary powers exception, 49 U.S.C. § 41713(b)(3), the Authority’s ban on scheduled passenger service may be unenforceable because it impermissi-bly discriminates between classes of airport users.
Our record reflects that there are numerous other Part 135 air carriers — air carriers conducting similar flight operations using the similar aircraft and carrying the same number of passengers — at Centennial Airport. Some of these carriers are operating under an air carrier certificate identical to the one that the FAA issued to Centennial Express. With respect to noise, the King Air aircraft operated by Centennial Express is quieter than a number of other aircraft currently in use at the airport, and there are at least twenty planes operating out of the airport similar to those used by Centennial Express. The only difference between these services and those offered by Centennial Express is that Centennial Express makes its rates and destinations known to the public in advance.
Complicating matters further, the Authority’s ban appears to be contrary to the purpose of a public airport — operation “for the use and benefit of the public ... open to all types, kinds, and classes of aeronautical use *606on fair and reasonable terms without discrimination between such types, kinds, and classes.” 14 C.F.R. § 152, app. D, ¶ 18 (1997). Absent extraordinary circumstances, a public airport, such as Centennial Airport, should not be permitted to cater to special private interests, i.e., those individuals and corporations possessing the financial resources to either own aircraft or pay the high cost of charter flights. In addition, the Authority’s ban may run afoul of the FAA’s long-standing policy in favor of mass-transportation over private aircraft. See City of Dallas, 371 F.Supp. at 1029 (“Since commercial aviation represents the right of a greater number of people to use the navigable airspace of the United States, implementation of the Congressional policy requires a preference for commercial aircraft over private aircraft (and by implication over air cargo).”).
Although other courts have discussed the definition of “discrimination” in the context of aeronautical operations,8 whether this ban constitutes impermissible discrimination presents a complex and troublesome question because the FAA indicated in its informal letter to the Authority that it may change its policies to allow the proprietor of a single airport to discriminate against classes of users so long as the proprietor adheres to a regional plan which, as a whole, satisfies . federal anti-discrimination requirements.
Turning to the three-part test articulated in Mashpee Tribe, I would hold that the question of whether the ban is non-discriminatory lays at the heart of the task assigned to the FAA by Congress. The determination of this question requires statutory interpretation of the ADA, particularly with respect to the proprietary powers issue because the facts present a matter of first impression regarding the scope of 49 U.S.C. § 41713(b)(3). Interpretation of the AJDA is a task assigned to the FAA by Congress. See Tivolino Teller House, Inc. v. Fagan, 926 P.2d 1208, 1215 (Colo.1996) (stating that an agency is charged with the administration and enforcement of its statutory scheme, and courts must give deference to administrative interpretations of statutes); Ross v. Denver Dep’t of Health & Hosps., 883 P.2d 516, 519 (Colo.App.1994) (stating that interpretation of a rule or regulation by the agency charged with its enforcement is generally entitled to great deference).
The issue of whether the Authority’s ban is non-discriminatory also presents policy considerations properly left to the FAA. The FAA indicated in its informal letter that it currently permits multiple airports under joint ownership to allocate the operations of different classes of aircraft, but that such allocation is not permitted among airports under separate ownership. The FAA then stated:
[Yjour letter raises a policy issue relating to how to harmonize several important goals — allowing the citizens of a region to plan and manage their aviation resources on a regional basis, while at the same time preserving and enhancing the performance of the national aviation system and ensuring that statutory and regulatory requirements associated with use of Federal grant funds are not violated- We firmly support regional planning and decision-making and strongly believe that local governments should, wherever possible, plan, develop and operate their transportation systems in an integrated and regional context, consistent with applicable Federal law....
[This case presents the question of] whether the Department should initiate a change to present policy to permit two or more Federally-aided airports in an area to allocate among themselves the operations of different types of classes of aircraft, through an enforceable regional planning agreement. Because this would be a significant policy change, full consideration by the public and the aviation community is warranted. Therefore, we will be initiating, early next year, a process to obtain a full range of views on this issue. Currently, existing policy on airport access must be complied with.
(Emphasis added.) By holding that the Authority is permitted to ban certain classes of service in the name of regional planning, the majority intrudes upon the FAA’s authority *607to implement and enforce its policies as mandated by Congress.
Although the PAA’s letter is not binding, we have said that courts should take particular notice of the persuasive authority provided by such guidance. See Banner Adver., Inc. v. City of Boulder, 868 P.2d 1077, 1083 (Colo.1994). The FAA’s letter persuades me that this ease raises important policy matters that should not be resolved by this court, but rather by that agency.
The second prong of Mashpee Tribe is whether agency expertise is required to unravel intricate, technical facts. A determination of the policy issues presented in this case requires consideration on a regional and national level of facts not developed in this record but known to the FAA Examples of the factual issues that must be addressed are the passenger service needs of airports located in Colorado, such as Denver International Airport and Centennial Airport, and the airports located in Broomfield, Jefferson County, Greeley, and Colorado Springs, and how these services relate to the public aviation needs on a local, regional, and national level. The third prong of Mashpee Tribe is whether an agency determination would materially aid the court. In my view, the state court system would benefit greatly from the expertise of the FAA in interpreting federal law, particularly on the first impression issue of proprietary powers.
Finally, I note that the FAA’s informal letter to the Authority stated that the exclusion of a particular class of service is generally arbitrary and invalid. This suggests a high probability of inconsistency between the majority’s decision and the FAA’s decision. “[Hjarmony, efficiency, and prudence” dictate deference in this case. Mashpee Tribe, 592 F.2d at 581 n. I.9
IV.
I agree with the majority that local, regional, and national planning is a priority. However, I believe the Authority’s ban on scheduled passenger service must be considered in the context of the public’s aviation needs on the broadest possible basis by a forum designated by Congress to determine aviation policy and to decide conflicting needs among a local area, a state, and the nation. Thus, the question of whether the Authority’s ban should be considered discriminatory or arbitrary is best determined by the federal agency charged with the responsibility for such policy decisions. The FAA possesses the expertise to consider the arguments advanced by the majority in light of the aviation needs of the public for the area near Centennial and to coordinate this public need with the services offered by other airports located in Colorado. Irrespective of the precipitous action by Centennial Express and the inaction of the FAA, the FAA and not the state court system is better equipped to resolve these policy matters. We should de.fer to the FAA regarding the scope of the proprietary powers exception and the issue concerning federal funding violations. Hence, I respectfully dissent.
*608I am authorized to say that Justice MARTINEZ joins in this dissent.
.Although the Code of Federal Regulations does not define "unscheduled operations,” a "scheduled operation” is defined as follows:
[A]ny common carriage passenger-carrying operation for compensation or hire conducted by an air carrier or commercial operator for which the certificate holder or its representative offers in advance the departure location, departure time, and arrival location.
14 C.F.R. § 119.3 (1997). Hence, an unscheduled service is a similar operation that does not offer flight information in advance. "Common carriage” is a service using aircraft with 30 or fewer seats that weighs no more than 75,000 pounds. See id. A “passenger-carrying operation” is a service that provides less than five round trips per week on at least one route between two or more points. See id.
. 14 C.F.R. pt. 135 (1997) is commonly known as Part 135. An operation conducted pursuant to a . Part 135 air carrier certificate is restricted to certain types of aircraft as set forth in Part 119. There are numerous other Part 135 air carriers at Centennial Airport. Some of these carriers are operating under an air carrier certificate identical to the one the FAA issued to Centennial Express.
. The amended version of the Minimum Standards provides, in pertinent part:
An Air Carrier operator is an entity that provides scheduled passenger services and oper*601ates under the appropriate [federal aviation regulations] ... with aircraft that provide no more than 30 passenger seats and are within the weight limitations established for the Airport in its Rules and Regulations. (This category is not consistent with the Airport Purpose and will not be allowed to operate at the Airport unless required by final court order.)
(Emphasis in original.)
. The King Air aircraft is quieter than a number of other aircraft currently in use at the airport. There are at least twenty planes operating out of the airport similar to those used by Centennial Express.
. To date, the formal complaint is still pending before the FAA.
. The Butcher court stated:
[0]ne can imagine the effect of different states requiring a certain frequency of airline service to certain of their cities, or mandating that airline service be nonstop between certain cit-ies_ These kinds of “services” ... are distinctively incident to the provision of airline service to the public and, just like rates and routes, are beyond the power of states to regulate or otherwise affect by local law.
Butcher, 813 F.Supp. at 517-18.
. I question the majority’s interpretation of the scope of the proprietary powers exception. The proprietary powers exception allows a publicly owned airport to take certain actions in its capacity as a proprietor that it could not take as a regulator under its police power. See City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 635 n. 14, 93 S.Ct. 1854, 1861 n. 14, 36 L.Ed.2d 547 (1973). However, airport regulations imposed pursuant to proprietary powers must be reasonable, non-arbitrary, and non-discriminatory. See Midway, 584 F.Supp. at 440-41. The precise scope of the proprietary powers exception is unsettled. See Western Air Lines, Inc. v. Port Auth., 658 F.Supp. 952, 956 (S.D.N.Y. 1986). However, proprietary powers are extremely limited, see City of Houston v. Federal Aviation Admin., 679 F.2d 1184, 1194 (5th Cir. 1982), and "have never been deemed broad enough to authorize a municipality to adopt regulations which are in direct conflict with FAA regulations.” Skydiving Ctr. of Greater Washington, D.C., Inc. v. St. Mary’s County Airport Comm'n, 823 F.Supp. 1273, 1283 (D.Md.1993).
. See, e.g., City of Dallas, 371 F.Supp. at 1029; Western, 658 F.Supp. at 958-59.
. Although I would hold that we should defer to the FAA on the proprietary powers and funding issues, I possess additional reservations regarding the majority’s determination that the Authority's ban is non-discriminatory.
The majority states that the Authority’s ban is necessary for the safe operation of the airport because Centennial Airport lacks a terminal, security, and baggage systems. See maj. op. at 596. However, this argument might serve to reinforce the discriminatory nature of the ban. If safe passenger service requires such facilities, then charter flights and other unscheduled passenger services available to the more affluent would also be prohibited at Centennial Airport. I question whether the Authority’s han can be characterized as a safely regulation.
The majority states that the .Authority's ban is necessary to service the civil aviation needs of the public because scheduled passenger services would create congestion, disrupting the services currently available at Centennial Airport by diverting scheduled passenger services to Denver International Airport. The district court found that the airport was approaching capacity but made no findings that Centennial Express’s proposed scheduled passenger service "would disrupt" current services. Cf. Midway, 584 F.Supp. at 439 (extensive facts supporting the determination that the airport was congested). Under accepted federal aviation principles, it appears that a proprietor of a single airport may not circumvent the federal discrimination requirements simply because another airport in the vicinity under separate ownership is in compliance with federal anti-discrimination regulations. See Western, 658 F.Supp. at 957-58; FAA Order 5190.6A § 4—8(d) (Oct. 2, 1989).