S.I. No. 657/2023 - Broadcasting Act 2009 (Section 21) Levy Order 2023

1. In this schedule—

“broadcasting funding scheme” means a scheme administered by the Commission by virtue of Part 10 of the Act of 2009, or a scheme under section 154 of the Act of 2009

“commercial communication” means a communication so described in paragraph 6;

“Government” means the Government provided for in Bunreacht na hÉireann;

“interactive income” means income generated by a provider from listener or viewer response to a broadcast including, without limitation, telephony income and income from online payments which are so generated;

“non-linear service” means a service provided by a television programme service provider whereby a person may view or listen to programmes at the moment chosen by the user and at his or her individual request on the basis of a catalogue of programmes selected by the television programme service provider;

“public body” means an entity whose decisions are subject to judicial review.

“provider” means each provider of services set out in this Order whose levy shall be determined based on qualifying income.

2. Subject to paragraph 4, money which the Government or a public body pays to a provider by way of grant is qualifying income of that provider.

3. Without limitation, money which Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media pays to a provider is qualifying income of that provider.

4. Money which the Commission pays to a provider under a broadcasting funding scheme is not qualifying income of that provider.

5. Subject to paragraph 8, income of a provider from commercial communications (including late payment surcharges and cancellation penalties) net of agent’s commission, computed on a normal accruals basis, is qualifying income of that provider.

6. In this schedule “commercial communication” means images, with or without sound, and radio announcements which are designed to promote, directly or indirectly, the products, services or image of a natural or legal entity pursuing an economic activity. Such images and radio announcements accompany or are included in a programme in return for payment or for similar consideration or for self-promotional purposes. Forms of audiovisual commercial communication include, inter alia, advertising, sponsorship, teleshopping and product placement but do not include public service announcements and charity appeals broadcast free of charge.

7. Where a provider gives early payment discounts and/or volume discounts in respect of commercial communications such discounts may be taken into account in computing the qualifying income of the provider.

8. Where a provider pays commission to an agent in respect of a commercial communication and such commission exceeds 15% of the amount payable to the provider by the person for whom such communication is broadcast, the amount by which such commission exceeds 15% may not be deducted in computing such provider’s qualifying income.

9. Subject to paragraph 10, where reasonable provision is made in the audited accounts of a provider for bad debts relating to commercial communications, a corresponding deduction may be made in computing such a provider’s qualifying income.

10. No such deduction, as is referred to in paragraph 9, may be made for a provision for bad debts to the extent that the income to which such provision relates would not be qualifying income.

11. Subject to paragraphs 5 and 8, costs incurred by a provider in securing commercial communications may not be deducted in computing such a provider’s qualifying income.

12. Where a provider receives non-cash consideration for a commercial communication, the qualifying income of the provider shall be increased by an amount equal to the Commission’s estimate of the value of such non-cash consideration.

13. Subject to paragraph 14, where a provider generates interactive income such income is qualifying income of that provider.

14. Where a provider generates interactive income through broadcasting programmes featuring competitions, the value of prizes awarded to participants may be deducted in computing qualifying income, but no deduction may be made for the value of a prize which is provided at the cost of a third party.

15. Costs incurred by a provider in providing interactive services or applications may not be deducted in computing qualifying income.

16. All qualifying income should be apportioned to the service in which it was raised. Where such an apportionment is not possible, qualifying income shall be spread across all services provided by the provider based on percentage breakdown of apportioned qualifying income of all the services provided by the provider.

GIVEN under the seal of Coimisiún na Meán,

18 December, 2023.

JEREMY GODFREY,

Chairperson of Coimisiún na Meán.

EXPLANATORY NOTE

(

This note is not part of the Instrument and does not purport to be a legal interpretation.

)

This Order imposes a levy on certain specified classes of providers of audiovisual media service providers, providers of sound broadcasting services and providers of designated online services, for the purpose of meeting the Commission’s expenses properly incurred and its working capital requirements in respect of a levy period, in so far as those expenses and requirements are not met in any other way.

17. All qualifying income should be apportioned to the service in which it was raised. Where such an apportionment is not possible, qualifying income shall be spread across all services provided by the provider based on percentage breakdown of apportioned qualifying income of all the services provided by the provider.

SCHEDULE 8

Qualifying Income of audiovisual on-demand service providers

18. Subject to article 19, the Commission may, by way of notice in writing, require a provider to permit the Commission or a person nominated by it on a specified date or dates to inspect records held by it or by any person on its behalf which are relevant to the calculation and payment of levy for a specified levy period or levy periods.

19. At least seven days must elapse between the date on which the Commission gives notice under article 18 and the earliest date specified in such notice for the inspection of records.

20. A provider on which a notice is served under article 18 shall comply with its terms.

21. Subject to article 22 the Commission may by way of notice in writing require a provider to provide to the Commission within a specified period—

(1) copies of records held by it, or by any person on its behalf, which are relevant to the calculation and payment of levy for a specified levy period or levy periods; and/or

(2) replies to such queries concerning its activities as the Commission may have incorporated in such notice.

22. The period specified in article 21 shall be not less than 21 days.

23. A provider on which a notice is served under article 21 shall comply with its terms.

24. Subject to article 25, interest shall accrue on an overdue sum from the date of default until the date of payment at an annual rate of 2% over three-month Euribor.

25. The three-month Euribor rate which is applicable for the purpose of article 24 shall be the three-month Euribor rate on the date of default, provided that thereafter the Commission may, at three-month intervals, substitute for such rate the then applicable three-month Euribor rate.

26. The Commission shall, where applicable, include in any notice requiring the payment of a levy, details of the VAT which the provider must pay in respect of such levy.

27. Any surplus of income, from levies imposed under this Order, in excess of the expenses properly incurred by the Commission and its working capital requirements in a levy period shall be deemed to be monies derived through the imposition of a levy for a levy period and shall either

(1) be retained by the Commission to be offset against levy obligations for the subsequent year; or

(2) be refunded proportionately to the relevant providers on whom the levy concerned was imposed.

28. The Commission shall consider any applications by providers for a review of any of the levies that are imposed under this Order.

SCHEDULE 1

CATEGORIES OF PROVIDERS WHO MUST PAY A LEVY

In accordance with section 21 of the Act of 2009, this Order is applicable to the following providers

(1) Providers of audiovisual media services;

(2) Providers of sound broadcasting services; and

(3) Providers of designated online services.

SCHEDULE 2

Calculation of the Levy for television programme service providers

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

22

nd December,

2023.

Coimisiún na Meán (“Commission”) in exercise of the powers conferred on it by

section 21

of the

Broadcasting Act 2009

(No. 18 of 2009) (as substituted by

section 8

of the

Online Safety and Media Regulation Act 2022

(No. 41 of 2022)) hereby makes the following Order