HOME BOX OFFICE, INC. v. F. C. C.

No. 75-1280.

567 F.2d 9 (1977)

HOME BOX OFFICE, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Professional Baseball et al., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided March 25, 1977.

Special Concurring Opinion filed May 20, 1977.


Attorney(s) appearing for the Case

Simon H. Rifkind, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Stuart Robinowitz and Bruce S. Kaplan, New York City, Harry M. Plotkin, George H. Shapiro, Linda A. Cinciotta and Ronald A. Cass, Washington, D.C., and Susan P. Carr and Moses Silverman, New York City, were on the brief, for petitioner in Nos. 75-1280, 75-1342, and 75-1358.

Robert W. Coll, Washington, D.C., with whom James A. McKenna, Jr. and Steven A. Lerman, Washington, D.C., were on the brief, for petitioner in Nos. 75-1788 and 75-2130 and for intervenor American Broadcasting Companies, Inc. in Nos. 75-1280, 75-1284, 75-1342, 75-1430, 75-1496, 75-1555, and 75-1358; also argued for all broadcasters.

Arthur Scheiner, Washington, D.C., with whom Richard A. Solomon, Robert D. Hadl, and Richard A. Moore, Washington, D.C., were on the brief, for petitioners in No. 75-1430.

Gerald Meyer, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Lawrence S. Lesser, Arlington, Va., was on the brief, for petitioners in No. 75-1496.

Barry Grossman, Atty., Dept. of Justice, Washington, D.C., with whom Samuel R. Simon, Atty., Dept. of Justice, Washington, D.C., was on the brief, for respondent United States of America. Robert B. Nicholson, Atty., Dept. of Justice, Washington, D.C., entered an appearance for respondent United States of America in No. 75-1785. Lee I. Weintraub, Atty., Dept. of Justice, Washington, D.C., entered an appearance for respondent United States of America in No. 75-2172. Carl D. Lawson, Atty., Dept. of Justice, Washington, D.C., entered an appearance for respondent United States of America.

Daniel M. Armstrong, Associate Gen. Counsel, F. C. C., Washington, D.C., with whom Ashton R. Hardy, Gen. Counsel, and Jack David Smith, Counsel, F. C. C., and Frederick W. Finn, Counsel, Cable Television Bureau, Washington, D.C., were on the brief, for respondent F. C. C. Joseph A. Marino, Associate Gen. Counsel, F. C. C., Washington, D.C., at the time the record was filed, also entered an appearance for respondent F. C. C.

Curtis T. White, Washington, D.C., with whom Frank W. Lloyd, III, Washington, D.C., was on the brief, for intervenor National Citizens Committee for Broadcasting.

Thomas J. Dougherty and Preston R. Padden, Washington, D.C., were on the brief for petitioner in No. 75-1284.

John B. Summers and James J. Popham, Washington, D.C., were on the brief for petitioner in Nos. 75-1785 and 75-2131.

Sidney Schreiber and James Bouras, New York City, were on the brief for petitioner in No. 75-1555.

Joel Rosenbloom, Peter D. Bewley, Stephen A. Weiswasser, and Lowell B. Miller, Washington, D.C., were on the brief for petitioner in Nos. 75-1807 and 75-2129 and for intervenor CBS Inc. in Nos. 75-1280, 75-1284, and 75-1358. J. Roger Wollenberg, Washington, D.C., entered an appearance for petitioner in No. 75-1807.

Bernard G. Segal, Philadelphia, Pa., Corydon B. Dunham, New York City, and Howard Monderer, Washington, D.C., were on the brief for petitioner in Nos. 75-1869 and 75-2171.

Henry Geller, Washington, D.C., filed a brief as amicus curiae urging reversal in Nos. 75-1280, 75-1284, 75-1342, 75-1358, 75-1430, 75-1470, 75-1496, and 75-1555.

Kenneth A. Cox, William J. Byrnes, and Raymond C. Fay, Washington, D.C., filed a brief on behalf of American Mothers Committee, Inc., et al., as amici curiae.

James F. Fitzpatrick and Frank G. Washington, Washington, D.C., were on the brief for intervenor Professional Baseball in Nos. 75-1280, 75-1284, 75-1358, 75-1430, and 75-1496.

James A. McKenna, Jr., Robert W. Coll, and Steven A. Lerman, Washington, D.C., entered appearances for intervenors Forward Communications Corporation, et al., in Nos. 75-1280, 75-1284, 75-1358, 75-1430, 75-1496, and 75-1555.

Arthur Scheiner, Washington, D.C., entered an appearance for intervenor Twentieth Century-Fox Film Corp.

Before WRIGHT and MacKINNON, Circuit Judges, and WEIGEL, District Judge.


PER CURIAM:1

In these 15 cases, consolidated for purposes of argument and decision, petitioners challenge various facets of four orders of the Federal Communications Commission which, taken together, regulate and limit the program fare "cablecasters"2 and "subscription broadcast television stations"3 may offer to the public for a fee set on a per-program or per-channel basis.

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