The Federal Aviation Administration (FAA) has subpoenaed Brown Harris Stevens, a brokerage with offices in New York City, the Hamptons and Palm Beach, Florida, for information about how the company uses drones for marketing purposes.

A spokeswoman for the brokerage said the FAA had requested information through a subpoena on SkyPan International, a vendor it uses for aerial photography. The brokerage complied with the request, the spokeswoman said.

“The vendor was hired for one project under our new development division,” she said.

online poll by Opinion Stage

A report from the New York Post suggests that the request could be part of a wider investigation into real estate brokerages that are employing unmanned aircraft to take photos of properties located in the New York area.

A source with Halstead Property, a brokerage with offices in New York, New Jersey and Connecticut that is owned by the same parent company as BHS, purportedly told the Post, “We’re getting [subpoenas] all over the city and the Hamptons, and they’re just going to general counsel.” A spokeswoman at Halstead Property disputed that purported claim, saying, “I have no knowledge of Halstead being served” subpoenas.

Asked about the probe, an FAA spokesperson said that the agency cannot comment on an active investigation.

Word of the FAA’s inquiry comes about a week after the agency said that agents who fly drones to take pictures or videos of listings are not engaged in a “hobby or recreation,” meaning that the FAA could attempt to take enforcement actions against them if they and their aircraft have not been certified as experimental or commercial operators.

Some real estate agents who fly drones to photograph listings have claimed that they qualify as hobbyists because they do not charge for the service. Companies that shoot drone photography or video for real estate brokers and agents have sometimes said that they are charging for photo or video editing, not drone flights.

The Bethesda, Maryland-based Wydler Brothers of Long & Foster produced a neighborhood tour of Westmoreland Hills that features footage captured by a drone.

But the FAA made it clear in a notice it issued last week that a rule that limits the FAA’s ability to restrict the use of small drones by hobbyists does not apply to “a Realtor using a model aircraft to photograph a property that he is trying to sell and using the photos in the property’s real estate listing.” Nor does the rule apply to “a person photographing a property or event and selling the photos to someone else.”

As such, Realtors, like other commercial drone operators, “are subject to all existing FAA regulations, as well as future rule-making action,” the FAA said.

The FAA has indicated that it thinks it currently has the authority to fine commercial drone operators if they and their aircraft have not been certified as experimental or commercial operators.

The FAA has authorized only two commercial drone operations so far, and both of them are limited to the Arctic, a spokesman said.

“We have not approved any commercial operations by any Realtors,” he said.

But whether or not the FAA may penalize commercial drone operators remains a matter of dispute.

In March, National Transportation Safety Board Administrative Law Judge Patrick Geraghty dismissed the FAA’s case against the only person the FAA has attempted to fine for drone use so far, ruling that FAA policy notices governing commercial operation of drones were not produced through a formal rule-making process.

But the FAA immediately appealed the ruling, which it says has the effect of staying Geraghty’s decision as it undertakes a formal rule-making process to develop rules that will govern commercial drone operators.

“Legally, that means all rules are still enforced and the FAA is still enforcing them,” an FAA spokesperson said.

The spokesperson added that when the agency learns about unauthorized commercial drone operations, it typically asks the pilot to cease operations through a call or visit. If the operator doesn’t comply with the request, then the agency might send a warning letter.

Finally, “if all else fails, we might pursue a cease and desist order,” he said.

Highlight reel of drone footage captured by 3Sixty Strategies.

The FAA has sent cease and desist letters to a number of drone operators, but the spokesperson said he couldn’t easily determine if any of them used drones for real estate marketing purposes.

The spokesperson also noted that the only time the FAA sought to fine a commercial drone operator, it did so because the operator was piloting the drone in a reckless manner, not because the operator was using the drone for commercial purposes.

“There’s some light” for businesses that are eager to adopt drones, he added.

The FAA plans to introduce proposed rules for small drones later this year, and the rules may provide a more accessible legal means for pilots to use them for commercial ends, according to the spokesman.

“In general, it’s going to offer the policies and regulation and standards for a wide spectrum of users,” he said.

Once the FAA issues those rules, the agency must allow for an extended period of public comment before finalizing them. According to The Washington Post, a recent government audit estimated that those rules won’t become finalized until next year at the earliest.

A spokeswoman at the National Association of Realtors said it was just learning about the Post’s report, but that NAR “continues to advise Realtors against the commercial use of drones for marketing real estate until the FAA issues further guidance or regulations.”

Some brokers welcome the FAA’s scrutiny of drone operators.

“As a lifelong New Yorker, I would hate to think that there’s anything flying over my head that I don’t know about,” said Steven O. Goldschmidt, co-chair of the New York City listing service RLS.

Editor’s note: This story has been updated to include comments from spokeswomen for Halstead Property and Brown Harris Stevens, and a spokesman for the FAA. 

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