No. 77-1878.

587 F.2d 1248 (1978)

HOME BOX OFFICE, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Metromedia, Inc., American Broadcasting Co., Inc., Forward Communications Corp., et al., National Association of Broadcasters, Paramount Pictures Corporation, CBS, Inc., National Broadcasting Company, Inc., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided September 20, 1978.

As Amended September 26, 1978.

Attorney(s) appearing for the Case

Stuart Robinowitz, New York City, with whom Simon H. Rifkind, Moses Silverman, Richard Kurnit, Daniel H. Bookin, New York City, Harry M. Plotkin, George H. Shapiro and Alan P. Auckenthaler, Washington, D.C., were on the brief, for petitioners.

Jack D. Smith, Counsel, F.C.C., Washington, D.C., for respondent. Daniel M. Armstrong, Associate Gen. Counsel, C. Grey Pash, Jr., Roberta L. Cook and Keith H. Fagan, Counsel, F.C.C. Washington, D.C., were on the brief, for respondents.

E. William Henry, Washington, D.C., with whom Lawrence P. Keller, Washington, D.C., was on the brief, for intervenor, Paramount Pictures Corp.

Thomas J. Dougherty and Preston R. Padden, Washington, D.C., were on the brief, for intervenor, Metromedia, Inc.

James A. McKenna, Jr. and Thomas N. Frohock, Washington, D.C., were on the brief, for intervenors, American Broadcasting Co., Inc. and Forward Communications Corp., et al.

Erwin G. Krasnow and James J. Popham, Washington, D.C., were on the brief, for intervenors, National Association of Broadcasters.

Joel Rosenbloom, Stephen A. Weiswasser and Daniel L. Brenner, Washington, D.C., were on the brief, for intervenors, CBS, Inc.

Corydon B. Dunham, New York City, Bernard G. Segal, Jerome J. Shestack, Philadelphia, Pa., and Howard Monderer, Washington, D. C., were on the brief, for intervenors, National Broadcasting Co., Inc.

Also John J. Powers, III and Susan J. Atkinson, Attys., Dept. of Justice, Washington, D.C., for respondent, United States.

Also J. Roger Wollenberg and Nancy C. Garrison, Washington, D. C., for intervenors, CBS, Inc.

Before BAZELON, Circuit Judge, and TUTTLE, Senior Circuit Judge, for the United States Court of Appeals for the Fifth Circuit, and ROBB, Circuit Judge.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

This case is a sequel to Home Box Office, Inc. v. FCC, 185 U.S.App.D.C. 142, 567 F.2d 9, cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). In that case the petitioner Home Box Office challenged orders of the Federal Communications Commission which regulated and limited the program fare cablecasters and subscription broadcast...

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