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 SEPARATE  STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN 
 Re:  Effects  of  Communication  Towers  on  Migratory  Birds;  WT  Docket  No.  03-  187;  Notice  of  Proposed  Rulemaking 
 I  am  pleased  to  support  this  Notice  of  Proposed  Rulemaking  because  it  provides  a  thorough  and  thoughtful  review  into  the  potential  effects  of  communications  towers  on  migratory 
 birds.  In  addition,  the  Notice  specifically  responds  to  my  request  earlier  this  year,  during  our  consideration  of  the  “gulf  coast”  petition,  to  reengage  the  larger  migratory  bird  proceeding.  This 
 important  proceeding  unfortunately  had  languished  for  some  time,  and  I  am  pleased  to  be  able  to  push  that  review  forward  now. 


 The  item  before  us  represents  a  balanced  look  on  a  challenging  issue.  Migratory  birds  are  a  prized  natural  resource.  Conservation  of  the  migratory  bird  population  and  their  habitats  for 
 future  generations  is  an  important  goal  for  our  society.  At  the  same  time,  communication  towers  represent  a  critical  component  in  the  continued  deployment  of  basic  and  advanced 
 telecommunications  services  throughout  the  country.  Towers  not  only  will  form  the  backbone  of  the  transition  to  digital  television,  they  also  are  used  everyday  by  our  nation’s  public  safety 
 community  to  effectively  and  timely  respond  to  those  who  need  our  help  the  most.  So  I  am  pleased  that  our  Notice  asks  tough  questions  and  equally  explores  both  sides  of  the  issue  so  that 
 we  may  best  develop  a  strategic  approach  for  dealing  with  the  impact  that  communication  towers  have  on  migratory  birds. 


 While  I  generally  support  the  Notice,  I  did  want  to  highlight  one  aspect  of  the  item  that  gives  me  pause.  The  Notice  suggests  that  there  may  be  an  open  question  about  our  legal 
 authority  under  the  National  Environmental  Policy  Act  (NEPA)  and  the  Communications  Act  to  make  the  requisite  public  interest  determination  to  support  rules  specifically  for  the  protection  of 
 migratory  birds.  I,  for  one,  am  confident  in  our  legal  authority  under  the  NEPA  and  the  Communications  Act  to  take  action,  if  appropriate,  and  do  not  think  our  conclusion  on  this  issue 
 should  be  a  tentative  one.  I  took  a  similarly  firm  position  on  the  legal  effect  of  the  National  Historic  Preservation  Act  in  our  consideration  of  the  Nationwide  Programmatic  Agreement  –  a 
 determination  that  was  recently  upheld  in  the  U.  S.  Court  of  Appeals  for  the  D.  C.  Circuit. 
 Finally,  I  understand  that  there  is  a  renewed  effort  by  members  of  the  communications  industry  along  with  leading  environmental  and  conservation  groups  to  discuss  what  can 
 collectively  be  done  to  minimize  the  impact  of  communications  towers  on  migratory  birds.  I  am  very  encouraged  by  this  news  and  want  to  extend  my  strong  support  for  this  cooperative  effort.  I 
 hope  that  this  group  will  function  as  an  important  incubator  to  develop  and  hatch  consensus  positions  that  will  equally  serve  conservation  and  communications  objectives  going  forward. 
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