Section 368J: Financial penalties, Communications Act 2003

The amount of a penalty imposed on a provider under section 368BB ... , 368I or 368IA is to be such amount not exceeding 5 per cent. of the provider's applicable qualifying revenue or £250,000 whichever is the greater amount, as the appropriate regulatory authority determine to be—

appropriate; and

proportionate to the contravention or failure in respect of which it is imposed.

Where the provider in question is the BBC, the amount of the penalty is to be such amount not exceeding the amount for the time being specified in an order under section 198(6) or, if no such order is in force, £250,000, as OFCOM determine to be—

appropriate; and

proportionate to the contravention or failure in respect of which it is imposed.

In determining the amount of a penalty under subsection (1) or (1A) the appropriate regulatory authority must have regard to any statement published by OFCOM under section 392 (guidelines to be followed in determining amount of penalties).

The "applicable qualifying revenue", in relation to a provider, means—

the qualifying revenue for the provider's last complete accounting period falling within the period during which the provider has been providing the service to which the contravention or failure relates; or

in relation to a person whose first complete accounting period falling within that period has not ended when the penalty is imposed, the amount that the appropriate regulatory authority estimate to be the qualifying revenue for that period.

For the purposes of subsection (3) the "qualifying revenue" for an accounting period consists of the aggregate of all the amounts received or to be received by the provider of the service to which the contravention or failure relates or by any connected person in the accounting period —

for the inclusion in that service of advertisements, product placement and sponsorship; and

in respect of charges made in that period for the provision of programmes included in that service.

For the purposes of subsection (4), "connected" has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act.

A financial penalty imposed under this section—

must be paid into the appropriate Consolidated Fund; and

if not paid within the period fixed by the appropriate regulatory authority, is to be recoverable by the appropriate regulatory authority as a debt due to them from the person obliged to pay it.

For the purposes of subsections (3) and (6)—

the amount of a person's qualifying revenue for an accounting period, or

the amount of any payment to be made into the appropriate Consolidated Fund by any person in respect of any such revenue,

is, in the event of a disagreement between the appropriate regulatory authority and that person, the amount determined by the appropriate regulatory authority.

The references in this section to the payment of an amount into the appropriate Consolidated Fund—

in the case of an amount received in respect of matters appearing to OFCOM to have no connection with Northern Ireland, is a reference to the payment of the amount into the Consolidated Fund of the United Kingdom;

in the case of an amount received in respect of matters appearing to OFCOM to have a connection with Northern Ireland but no connection with the rest of the United Kingdom, is a reference to the payment of the amount into the Consolidated Fund of Northern Ireland; and

in any other case, is a reference to the payment of the amount, in such proportions as OFCOM consider appropriate, into each of those Funds.

Section 368J: Financial penalties

Discussed in

About this text