Page 26 - 70843_NSAA_SummerJournal2016

FAA regulations—like the rule restricting drones and pay-
loads to under 55 pounds, or using drones to carry hazard-
ous materials, to name a few—are not eligible for waivers
from the FAA at this time.
And given our remote, rural locations—far from
manned aircraft flight paths, airports, dense population cen-
ters—ski areas are likely good candidates for such waiv-
ers. The FAA specifically noted that the waiver process was
designed to “accommodate new technologies and unique
operational circumstances.”
There are a number of considerations for ski areas to
keep in mind for purposes of a waiver: embracing techno-
logical safety requirements for your drone fleet (including
geo-fencing, loss-of-control link functionality, anti-collision
lighting, collision avoidance technology); proximity parame-
ters for drone operations over people (laterally or vertically);
signage and guest education releases or waivers of consent;
designated drone routes; use of lighter drones (to minimize
injury concerns); and other performance-based standards.
QDOES THE FAA REQUIRE DRONE
INSURANCE?
ANo. There are no insurance requirements in the FAA’s new
commercial drone regulations. The FAA specifically declined
to impose insurance coverage requirements for commercial
operators, stating that the agency does not have jurisdiction
to impose insurance mandates. However, simply because the
FAA declined to mandate insurance coverage for commercial
drone operators, this does not mean a ski area cannot indi-
vidually require drone contractors (wedding videographers,
for example) from having separate insurance requirements.
Furthermore, it is important to understand that your
resort’s general liability policy likely does not provide insur-
ance coverage for claims related to the resort’s use of drones
as part of its business operations. Most insurance policies
(including your own home owner’s policy) contain aviation
exclusions, and these typically extend to the use of drones.
With these new FAA rules, and as insurance companies
develop claims and risk data involving drones, the insurance
industry is likely to respond quickly with separate riders to
provide coverage for the commercial use of drones.
One important wrinkle: While your existing insur-
ance policy may not provide coverage for your resort’s use
of drones absent a specific rider, your insurance may pro-
vide coverage if an outside operator of a drone (e.g., a guest),
causes damage or injury at a ski area using their own drone.
Consult with your insurer to understand these limitations.
24 | NSAA JOURNAL | SUMMER 2016
DO THE FAA REGULATIONS
QADDRESS PRIVACY CONCERNS?
ASimply put, they don’t. The FAA stated in its rules that the
agency does not regulate privacy safeguards, and issues of
privacy are not within the agency’s jurisdiction. Instead, the
FAA noted that local and state trespass laws will likely gov-
ern issues of privacy and the use of drones, and with the
advent of drone technology, there will likely be efforts by
states and municipalities to address privacy concerns, partic-
ularly as camera-enabled drones grow in popularity.
This is an important reminder that each area should
post on its website—or with signage in the base area—the
ski area’s rules about restrictions on drone use by guests and
the outside public. NSAA has a proposed drone policy (ski
areas can download the draft policy at www.nsaa.org under
the Government Affairs tab), and you can customize the
policy to fit your resort’s needs. For example, there may be
limited situations where a ski area would allow a guest to use
a drone (weddings, race events, special “drone zones,” etc).
NSAA has repeatedly emphasized with the FAA and
with the USFS that ski areas would be restricting, if not pro-
hibiting, drone use by their guests and the public for very
legitimate safety and privacy concerns. Both federal agencies
have conceded the right of ski areas to restrict or prohibit
drones, even on public land, and the new FAA regulations
reinforce our ability to restrict drone use.
Having a clearly posted policy restricting drones is crit-
ical for other reasons as well, including plaintiffs’ attor-
neys trying to obtain video evidence or surveillance, or news
media organizations chasing celebrities or during crisis situ-
ations, such as a catastrophic chairlift malfunction, an ava-
lanche incident, or mass shootings. (Don’t let the local news
station fool you: The First Amendment’s right to freedom of
the press only restricts the government, not private businesses
like ski areas.) Hundreds of news media organizations sub-
mitted comments to the FAA, so the media believes drones
will dramatically expand their capacity for news coverage—
all the more reason ski areas need to develop a clear policy
and communicate it directly with the media.
QHOW WILL THE FAA ENFORCE
THESE NEW RULES?
APerhaps one of the biggest criticisms against the FAA about
commercial drone operations is the agency’s seemingly lax
enforcement efforts. The FAA has legal authority to enforce
its rules through a regulatory compliance and fine process;