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Project No. 4024-0001, et ~. -7- B. uncompahgre argues that the September 21 order "harshly and arbitrarily punishes petitioners by retroactively applying to an innocent action taken long ago when hybrid applications were common and apparently permitted under law." .!1/ ?ur action is not retroactive nor does it create any undue hardshIp. The Fayetteville decision was decided September 16, 1981. The action that was the subject of our september 21 order, the surrender of Montrose's permit and ~filing of the license applications by Uncompahgre, took place some nine months later in June of 1982. The fact that we have, after the fact, fashioned a remedy for this abuse of municipal preEerence is only logical and, in light of our previous admonitions, can hardly be deemed improper. We also reject Uncompahgre's claim that our action was unjustified because it frustrates the primary purpose of the Act. Uncompahgre argues that the the sanction we intend to apply would, by reopening the sites for competition, frustrate the Commission's mandate under Sections 7(a) and 10(a) of the Act to dete'rmine which licensed project II is best adapted to a compre- hensive plan for beneficial public uses of waterways." There will be no such result. No application for license filed during the one year suspension period can be approved unless it is found to be best adapted to comprehensive development pursuant to Sec- tion 10(a). Uncompahgre also maintains that our action undermines the Congressional objective of expeditious hydropower development. We acknowledge that some delay in development of the sites here at issue will inevitably follOW from dismissing Uncompahgre's license applications and the reopening of these sites for competition. However, by ensuring that competition for develop- ment will proceed in an orderly and fair fashion and that municipal preference under Section 7(a) is employed only in the manner intended under the Act, we are fostering a predictable regulatory environment that will encourage potential developers to compete for permits and licenses; confident that their proposals will not be preempted unfairly by others abusing municipal preference. C. As a corollary to its argument that our action was arbitrary and capricious, Uncompahgre claims that our selection of the 90-day waiting periOd/one-year suspension is unduly harsh, lacking any legal or factual basis. l2I Uncompahgre's petition at p. 35. ~. Project No. 4024-001, et ~. -8- Our decision to establish the 90-day period was premised upon what we believed would be a reasonable periOd to discourage attempts to misuse municipal preference. li/ Our decision to impose a one year suspension was similarly based on our judgment as to what would sufficiently deter future abuses as well as what time period would provide unsuccessful competitors or prospective applicants sufficient time to reassess the situation and prepare acceptable permit or license applications. ~ny time less than one year would not safeguard the interests of those who were disadvantaged or dissuaded by the City of Montrose's assertion of municipal preference. Indeed, if this one-year period were not establiShed, and the abusing applicant merely deprived of its first-to-file status, such non-municipal applicants would still have a competitive advantage over other competitors because of the information gained during its relationship with the municipality. Mindful of our responsibility to promote the development of additional generating capacity, we have pro- vided that after one year from the date of this order the oon- municipal applicant would be free to file an application for any of the sites involved. 19/ This will ensure development in the event that no competitor-comes forward and files an acceptable application for any site within the one year. In so fashioning this sanction, we have balanced the need for both fair competition and prompt development. D. Finally, Uncompahgre argues that the Commission lacks the authority to dismiss license applications on the basis of abuse, because such an action is not specifically prescribed by statute or regulation. Uncompahgre's argument is without merit. Congress, in enacting the Federal Power Act, authorized the Commission: . .!.il Furthermore, we did not intend that the rebuttable presumption established would function as some artifical cut-off date whereby remedial action would not be instituted if the 90- day periOd lapsed before the non-municipal applicant filed its license application. Such is not the case. Should a similar factual pattern in the future be identified which, but for the passing of the 90-day periOd, would appear to in- volve an abuse of municipal preference, we will not hesitate to take appropriate action. . 191 In order to represent any legitmate interests it may have, Uncompahgre is not precluded from seeking intervention in any proceedings with respect to these sites during the one- year period. We will not, however, tolerate any obstruction or abuse of our procedures that might unnecessarily delay these proceedings. . , ..1 '~_..'''::::::IIl6.