[Federal Register Volume 66, Number 24 (Monday, February 5, 2001)]
[Rules and Regulations]
[Pages 8899-8903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-2870]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[PR Docket No. 92-235; FCC 00-439]


Replacement of Part 90 by Part 88 To Revise the Private Land 
Mobile Radio Services and Modify the Policies Governing Them and 
Examination of Exclusivity and Frequency Assignment Policies of the 
Private Land Mobile Services

AGENCY: Federal Communications Commission.

ACTION: Final rule; petitions for reconsideration.

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SUMMARY: This document disposes of seven petitions for reconsideration 
or clarification and one comment submitted in response to the 
Commission's Final rule. The Commission accepts a compromise frequency 
coordination plan, thus disposing of two petitions and facilitating the 
frequency coordination process. Petitions seeking other relief are 
granted, granted in part, dismissed or denied, thereby to provide 
further protection to safety related communications of Private Land 
Mobile Radio (PLMR) licensees while still maintaining the spectrum 
efficiency achieved through the sharing of PLMR frequencies among 
multiple users.

DATES: Effective March 7, 2001 except for Secs. 90.35(b)(2)(iii) and 
90.175(b)(1) which contain information collection that has not been 
approved by the Office of Management and Budget (OMB). The Commission 
will publish a document in the Federal Register announcing the 
effective date of those sections and that paragraph. Written comments 
by the public on new and/or modified information collections are due 
April 6,

[[Page 8900]]

2001. OMB must submit written comments on the information collection on 
or before June 5, 2001.

ADDRESSES: In addition to filing comments with the Secretary, a copy of 
any comments on the information collection(s) contained herein should 
be submitted to Judy Boley, Federal Communications Commission, Room 1--
C804, 445 12th Street, SW., Washington, DC 20554, email fcc.gov">jboley@fcc.gov.

FOR FURTHER INFORMATION, CONTACT: Michael J. Wilhelm, 445 12th Street, 
SW., Room 4C305, Washington, DC 20554; telephone 202.418.0680; email 
mwilhelm @ fcc.gov. For further information on the information 
collection(s) contact Judy Boley, Federal Communications Commission, 
Room 1-C804, 445 12th Street, SW., Washington, DC 20554, email 
fcc.gov">jboley@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fifth 
Memorandum Opinion and Order (Fifth MO&O) in WT Docket 92-225 released 
December 29, 2000. The complete text of this Fifth MO&O is available 
for inspection and copying during normal business hours in the FCC 
Reference Information Center, Courtyard Level, 445 12th Street, SW., 
Washington, DC 20554; and also is available from the Commission's 
copying contractor, International Transcription Services (ITS, Inc.) 
Courtyard Level, 445 12th Street, SW., Washington, DC 20554. The Fifth 
MO&O addressed seven petitions for reconsideration and one comment, all 
directed to the rules established by the Commission's Second Report and 
Order (Second R&O) 62 FR 18834       4/17/97 in this proceeding.
    1. In petitions for reconsideration, the Forest Industries 
Telecommunications (FIT) and the Manufacturers Radio Frequency Advisory 
Council (MRFAC) opposed earlier-adopted rules that gave licensees and 
applicants for former Power, Petroleum, and Railroad frequencies 
special treatment in the frequency coordination process whereby 
licensees are assigned particular radio channels. After the FIT and 
MRFAC petitions had been filed, the Land Mobile Communications Council 
(LMCC) filed a comment containing a compromise frequency coordination 
plan that was satisfactory to LMCC members, including FIT and MRFAC. 
Accordingly, the Commission adopted the substance of the LMCC plan and 
devised implementing rule provisions. Additionally, the Commission 
directed frequency coordinators to reach consensus on the standards to 
be used to assess co-channel and adjacent channel interference and to 
report the results of their consensus findings to the Commission.
    2. Although the Commission favors narrowband radio equipment 
because it conserves valuable spectrum, there are instances in which 
wideband equipment of particular designs may also be spectrum 
efficient. In the Second R&O, the Commission said that it would 
consider waiver requests from potential licensees who wanted to use 
spectrum-efficient wideband equipment. In its petition for 
reconsideration, MRFAC suggested that evaluation of such waiver 
requests should be done by frequency coordinators. The Commission 
disagreed, pointing out that there were public interest considerations 
inherent in such waiver requests and that the Commission is best 
equipped to evaluate matters related to the public interest.
    3. In its petition for reconsideration, Dataradio claimed that a 
low power channel plan submitted by the LMCC allowed secondary voice 
transmissions on data channels. It argued that such voice transmissions 
would result in harmful interference to data transmissions. The 
Commission dismissed Dataradio's claim as premature because the LMCC 
plan dealing with reserved data channels had not been accepted by the 
Commission and thus was not ripe for reconsideration.
    4. The Alarm Industry Communications Committee and a law firm filed 
petitions for clarification asking the Commission to confirm that the 
Second R&O rule that deleted the requirement that low power stations be 
licensed as mobiles, did not mean that the applications for such 
stations had to contain geographical coordinates and other information 
typically required of fixed stations. The Commission confirmed that was 
the case and reiterated that licensees of such stations can place 
transmitters anywhere within a defined service area by specifying a 
central location and a radius extending therefrom.
    5. In its petition for reconsideration, UTC claimed that the 
Commission had failed to provide frequency coordination protection from 
adjacent channel interference. The Commission stated that UTC was 
mistaken and that it had been clear in the Second R&O that frequency 
coordinators should take adjacent channel interference into account in 
the frequency coordination process.
    6. The Hewlett Packard Corporation petition for reconsideration 
requested a negotiated rulemaking or other process to adopt rules that 
would protect medical telemetry operations. The Commission denied the 
petition because, since submission of the petition for reconsideration, 
other measures to protect medical telemetry had been adopted.
    7. In its petition for reconsideration, Com Net Ericsson requested 
certain modifications or deletions to the Commission's rules regulating 
trunked operation of radio facilities. The Com Net Ericsson request was 
dismissed because the Commission had already made the requested changes 
in connection with a related proceeding.

Final Regulatory Flexibility Analysis

    8. As required by the Regulatory Flexibility Act, 5 U.S.C. 603 
(RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated into the Notice of Proposed Rule Making and the Further 
Notice of Proposed Rule Making in PR Docket 92-235.\1\ The Commission 
sought written public comment on the rule making proposals in the 
Refarming Notice and Further Notice, including on the respective IRFAs. 
This present Final Regulatory Flexibility Analysis (Final FRFA) in this 
Fifth MO&O conforms to the RFA.\2\
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    \1\ Replacement of Part 90 by Part 88 to Revise the Private Land 
Mobile Radio Services and Modify the Policies Governing Them, PR 
Docket 92-235, Notice of Proposed Rule Making, 57 FR 54034 11/16/92, 
7 FCC Rcd 8105, 8133 (1992) (Refarming Notice). Replacement of Part 
90 by Part 88 to Revise the Private Land Mobile Radio Services and 
Modify the Policies Governing Them and Examination of Exclusivity 
and Frequency Assignments Policies of the Private Land Mobile Radio 
Services, PR Docket No. 92-235, Report and Order and Further Notice 
of Proposed Rule Making, 60 FR 37152 7/19/95, 10 FCC Rcd 10076, 
10177 (1995) (Report and Order or Further Notice). A Final 
Regulatory Flexibility Analysis was provided in the first Memorandum 
Opinion and Order, Replacement of Part 90 by Part 88 to Revise the 
Private Land Mobile Radio Services and Modify the Policies Governing 
Them, PR Docket 92-235, Memorandum Opinion and Order, 62 FR 2027 1/
15/97, 11 FCC Rcd. 17676, 17718 (1996). An additional Final 
Regulatory Flexibility Analysis was furnished in connection with the 
Second Report and Order, Replacement of Part 90 by Part 88 to Revise 
the Private Land Mobile Radio Services and Modify the Policies 
Governing Them, PR Docket 92-235, Second Report and Order, 62 FR 
18834 4/17/97, 12 FCC Rcd 14307, 14353 (1997). A Supplemental Final 
Regulatory Flexibility was provided in the Second Memorandum Opinion 
and Order, Replacement of Part 90 by Part 88 to Revise the Private 
Land Mobile Radio Services and Modify the Policies Governing Them, 
PR Docket 92-235, Second Memorandum Opinion and Order, 64 FR 36258 
7/6/99 14 FCC Rcd. 8642, 8673 (1999).
    \2\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has 
been amended by the Contract With America Advancement Act of 1996, 
Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the 
CWAAA is The Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA).
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(1) Need For, and Objectives of This Action
    9. Our objective is to increase spectrum efficiency and facilitate 
the introduction of advanced technologies

[[Page 8901]]

into the 150-174 MHz, 421-430 MHz, 450-470 MHz, and 470-512 MHz private 
land mobile radio (PLMR) bands. The Report and Order in this proceeding 
modified the Commission's rules to resolve many of the technical issues 
which inhibited the use of spectrally efficient technologies in these 
frequency bands. It also stated the Commission's intent to consolidate 
the twenty existing radio service pools. The Further Notice in this 
proceeding proposed several methods of introducing market based 
incentives into the PLMR bands, including exclusivity. In the Second 
R&O, the Commission consolidated the radio service frequency pools and 
addressed related issues such as frequency coordination, trunking, and 
low power frequencies. The Second MO&O addressed petitions for 
reconsideration and clarification received in response to the Second 
R&O. The Third MO&O established rules for trunking and terminated the 
exclusivity portion of the proceeding. The Fourth MO&O stayed the 
effect of the new coordination rules. This Fifth MO&O addresses 
petitions for reconsideration or clarification of the Second MO&O and 
establishes new frequency coordination rules.
    10. The Commission finds that the potential benefits to the Private 
Land Mobile Radio (PLMR) community from the promulgation of rules for 
this purpose exceed any negative effects that may result. Thus, the 
Commission concludes that the public interest is served by modifying 
our rules.
(2) Summary of Significant Issues Raised by the Public in Response to 
the Previous Final Regulatory Flexibility Analyses
    11. No reconsideration petitions were submitted in direct response 
to the previous FRFAs. The Commission has, however, reviewed general 
comments that may impact small businesses. Much of the impact on small 
businesses arises from the central decision in this proceeding--
determining the number of frequency pools and the eligibility criteria 
for each pool. This affects small businesses in the following way. A 
smaller number of pools provides a greater number of frequencies 
available for small businesses that use PLMR systems to meet their 
coordination needs. Additionally, by creating fewer pools, frequency 
coordinators will now be subject to competition. Thus, small businesses 
that use PLMR systems can expect to pay lower prices for frequency 
coordination while receiving equivalent or better service. An 
additional impact on small business may result from the new frequency 
coordination rules which may marginally increase the cost of frequency 
coordination.
(3) Description and Estimate of the Number of Small Entities Subject to 
Which the Rules Apply
    12. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the rules adopted. The RFA generally defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' \3\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act.\4\ A small business concern is one which: (1) is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
Small Business Administration (SBA).\5\ A small organization is 
generally ``any not-for-profit enterprise which is independently owned 
and operated and is not dominant in its field.'' \6\ Nationwide, as of 
1992, there were approximately 275,801 small organizations.\7\ ``Small 
governmental jurisdiction'' generally means ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than 50,000.'' \8\ As of 1992, 
there were approximately 85,006 such jurisdictions in the United 
States.\9\ This number includes 38,978 counties, cities and towns; of 
these, 37,566, or 96 percent, have populations of fewer than 
50,000.\10\ The Census Bureau estimates that this ratio is 
approximately accurate for all governmental entities. Thus, of the 
85,006 governmental entities, the Commission estimates that 81,600 (91 
percent) are small entities.
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    \3\ See 5 U.S.C. 601(6).
    \4\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632). Pursuant to the 
RFA, the statutory definition of a small business applies ``unless 
an agency, after consultation with the Office of Advocacy of the 
Small Business Administration and after opportunity for public 
comment, establishes one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such 
definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
    \5\ Small Business Act, 5 U.S.C. 632 (1996).
    \6\ 5 U.S.C. 601(4).
    \7\ 1992 Economic Census, U.S. Bureau of the Census, Table 6 
(special tabulation of data under contract to the Office of Advocacy 
of the Small Business Administration).
    \8\ 5 U.S.C. 601(5).
    \9\ U.S. Dept. of Commerce, Bureau of the Census, ``1992 Census 
of Governments.''
    \10\ Id.
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    13. Estimates for PLMR Licensees: Private land mobile radio systems 
serve an essential role in a vast range of industrial, business, land 
transportation, and public safety activities. These radios are used by 
companies of all sizes operating in all U.S. business categories. 
Because of the vast array of PLMR users, the Commission has not 
developed, nor would it be possible to develop, a definition of small 
entities specifically applicable to PLMR users. For the purpose of 
determining whether a licensee is a small business as defined by the 
Small Business Administration (SBA), each licensee would need to be 
evaluated within its own business area. The Commission's fiscal year 
1994 annual report indicates that, at the end of fiscal year 1994, 
there were 1,101,711 licensees operating 12,882,623 transmitters in the 
PLMR bands below 512 MHz.\11\ Further, because any entity engaged in a 
commercial activity is eligible to hold a PLMR license, these rules 
could potentially impact every small business in the U.S.
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    \11\ See Federal Communications Commission, 60th Annual Report, 
Fiscal Year 1994 at 120-121.
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    14. Estimates for Frequency Coordinators: Neither the Commission 
nor the SBA have developed a definition of small entities specifically 
applicable to frequency coordinators. Therefore, the Commission 
concluded that the closest applicable definition under SBA rules is 
Business Associations (SIC 8611).\12\ The SBA defines a small business 
association as an entity with $5.0 million or less in annual receipts. 
There are 19 entities certified to perform frequency coordination 
functions under Part 90 of our Rules. However, the Commission is unable 
to ascertain how many of these frequency coordinators are classified as 
small entities under the SBA definition. The Census Bureau indicates 
that 97% of business associations have annual receipts of $4.999 
million or less and would be classified as small entities. The Census 
Bureau category is very broad, and does not include specific figures 
for firms that are engaged in frequency coordination. Therefore, for 
the purposes of this Final FRFA, the Commission estimates that almost 
all of the 18 spectrum frequency coordinators are small as defined by 
the SBA.
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    \12\ See Second R&O at 14355.
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(4) Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rules.
    15. This Fifth MO&O requires frequency coordinators to arrive at 
consensus standards for co-channel and adjacent channel interference 
and to report these standards to the Commission. This represents a one-
time

[[Page 8902]]

effort on the part of the frequency coordinators. The Commission 
believes that participation in the consensus process will be highly 
variable from one coordinator to another. However, on the average, the 
Commission anticipates that activities associated with reaching 
consensus and the preparation of the requisite report will occupy 40 
hours of time per coordinator, of which there are 19.
(5) Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered
    16. The Commission, in this Fifth MO&O, has considered petitions 
for reconsideration and clarification regarding its Second R&O in PR 
Docket No. 92-235, which consolidated the PLMR radio services below 512 
MHz and, inter alia, made provisions regarding frequency coordination 
in the Industrial/Business Pool. In doing so, the Commission has 
adopted a proposal which minimizes the burdens placed on small 
businesses. The new frequency coordination procedure, grounded, in part 
on comments representative of industry consensus, allows the applicants 
some choice in selecting a frequency coordinator, thereby introducing 
competition and reducing costs; but, in order to minimize potential 
interference, concurrence of another coordinator may be required in 
some instances. This Fifth MO&O also requires frequency coordinators to 
provide a consensus report to the Commission concerning standards for 
co-channel and adjacent channel interference. Although some initial 
burden thus rests on the coordinators in preparation of the report, the 
net effect will be to reduce the overall burden associated with the 
frequency coordination process inasmuch as there will likely be no 
significant further disputes among coordinators, with associated 
workload, concerning the appropriate standard to use when conducting an 
interference analysis.

Report to Congress

    17. The Commission will send a copy of this Fifth MO&O including 
this Final FRFA, in a report to be sent to Congress pursuant to the 
Small Business Regulatory Enforcement Fairness Act of 1996, see 5 
U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of 
the Fifth MO&O, including Final FRFA, to the Chief Counsel for Advocacy 
of the Small Business Administration. A copy of the Fifth MO&O and 
Final FRFA (or summaries thereof) will also be published in the Federal 
Register. See 5 U.S.C. 604(b).

Paperwork Reduction Act Analysis

    18. This Memorandum Opinion and Order contains a new information 
collection(s). The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public to comment on the 
information collection(s) contained in this Memorandum Opinion and 
Order as required by the Paperwork Reduction Act of 1995, Public Law 
104-13. Public and agency comments are due April 6, 2001. Comments 
should address: (a) whether the new collection of information is 
necessary for the proper performance of the functions of the 
Commission, including whether the information shall have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility and clarity of the information 
collected; and (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology.
    OMB Control Number: 3060-XXXX.
    Title: Section 90.35 Industrial/Business Pool & 90.175 Frequency 
Coordination Requirements.
    Type of Review: New collection.
    Respondents: Business or other for-profit, not-for-profit 
institutions, State, Local, or Tribal Governments.
    Number of Respondents: 3800 respondents.
    Estimated Time per Response: 1 hour per response.
    Total Annual Burden: 3800 hours.
    Cost to Respondents: No annual cost burden on respondents from 
either capital or start-up costs.
    Needs and Uses: The information collected from proposed and 
existing licensees will be used to facilitate the frequency 
coordination process and to protect existing stations against harmful 
interference. The requested information is needed to improve the 
frequency coordination process with a resultant improvement in 
efficient use of the spectrum.

    OMB Control Number: 3060-XXXX.
    Title: Report on Co-Channel and Adjacent Channel Interference 
Report.
    Type of Review: New collection.
    Respondents: Business or other for-profit, not-for-profit 
institutions.
    Number of Respondents: 19 respondents.
    Estimated Time per Response: 40 hours.
    Total Annual Burden: 760 hours.
    Cost to Respondents: No annual cost burden on respondents from 
either capital or start-up costs.
    Needs and Uses: The information collected from frequency 
coordinators will be used to establish a uniform calculus for 
estimation of co-channel and adjacent channel interference from 
proposed stations to existing Public Land Mobile Radio Service 
stations. The requested information is needed to improve the frequency 
coordination process with a resultant improvement in efficient use of 
the spectrum.

List of Subjects in 47 CFR Part 90

    Communications, Private Land Mobile Radio Services.

Federal Communications Commission.
William F. Caton,
Deputy, Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR Part 90 as follows:

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

    1. The authority citation for Part 90 continues to read as follows:


    Authority: Secs. 4(i), 11, 303(g), 303(r) and 332(c)(7) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 
303(g), 303(r), 332(c)(7).


    2. Section 90.35 is amended by redesignating paragraph (b)(2)(iii) 
as paragraph (b)(2)(iv) and adding a new paragraph (b)(2)(iii) and 
revising paragraph (b)(2)(ii) to read as follows:


Sec. 90.35  Industrial/business pool.

* * * * *
    (b) * * *
    (2) * * *
    (i) * * *
    (ii) A letter symbol in the Coordinator column of the frequency 
table in paragraph (b)(3) of this section designates the mandatory 
certified frequency coordinator for the associated frequency in the 
table. However, any coordinator certified in the Industrial/Business 
Pool may coordinate applications on such frequencies provided the prior 
written consent of the designated coordinator is obtained. Frequencies 
for which two coordinators are listed may be coordinated by either of 
the listed coordinators.
    (iii) Applications for new or modified facilities on frequencies 
shared prior to radio service consolidation by the former Manufacturers 
Radio Service, the Forest Products Radio Service, the Power Radio 
Service, the Petroleum Radio Service, the Motor Carrier Radio Service, 
the Railroad Radio Service and the Automobile Emergency Radio Service 
may be coordinated by any certified Industrial/Business Pool

[[Page 8903]]

coordinator. However, in the event that the interference contour of a 
proposed station would overlap the service contour of an existing 
station licensed on one of these previously shared frequencies, the 
written concurrence of the coordinator associated with the industry for 
which the existing station license was issued, or the written 
concurrence of the licensee of the existing station, shall be obtained. 
For the purposes of this Sec. 90.35, the service contour for UHF 
stations is the 39 dBu contour; and the interference contour for UHF 
stations is the 21 dBu contour; the service contour for VHF stations is 
the 37 dBu contour; and the interference contour for VHF stations is 
the 19 dBu contour.
* * * * *

    3. Section 90.175 is amended by revising paragraphs (b)(1), (b)(2), 
and (b)(3) to read as follows:


Sec. 90.175  Frequency coordination requirements.

* * * * *
    (b) * * *
    (1) A statement is required from the applicable frequency 
coordinator as specified in Secs. 90.20(c)(2) and 90.35(b) recommending 
the most appropriate frequency. In addition, if the interference 
contour of a proposed station would overlap the service contour of a 
station on a frequency formerly shared prior to radio service 
consolidation by licensees in the Manufacturers Radio Service, the 
Forest Products Radio Service, the Power Radio Service, the Petroleum 
Radio Service, the Motor Carrier Radio Service, the Railroad Radio 
Service or the Automobile Emergency Radio Service, the written 
concurrence of the coordinator for the industry-specific service, or 
the written concurrence of the licensee itself, must be obtained. 
Requests for concurrence must be responded to within 20 days of receipt 
of the request. The written request for concurrence shall advise the 
receiving party of the maximum 20 day response period. The 
coordinator's recommendation may include comments on technical factors 
such as power, antenna height and gain, terrain and other factors which 
may serve to minimize potential interference. In addition:
    (2) On frequencies designated for coordination or concurrence by a 
specific frequency coordinator as specified in Secs. 90.20(c)(3) and 
90.35(b), the applicable frequency coordinator shall provide a written 
supporting statement in instances in which coordination or concurrence 
is denied. The supporting statement shall contain sufficient detail to 
permit discernment of the technical basis for the denial of 
concurrence. Concurrence may be denied only when a grant of the 
underlying application would have a demonstrable, material, adverse 
effect on safety.
    (3) In instances in which a frequency coordinator determines that 
an applicant's requested frequency or the most appropriate frequency is 
one designated for coordination or concurrence by a specific frequency 
coordinator as specified in Secs. 90.20(c)(3) or 90.35(b), that 
frequency coordinator may forward the application directly to the 
appropriate frequency coordinator. A frequency coordinator may only 
forward an application as specified above if consent is received from 
the applicant.

[FR Doc. 01-2870 Filed 2-2-01; 8:45 am]
BILLING CODE 6712-01-P