MacKenzie promises to fly the flag for electronic testing

by MediaWeek, Media Week 16-Dec-04, 16:50

Kelvin McKenzie lost his legal battle against radio measurement body Rajar in the High Court this morning, but the maverick radio boss vowed to fight on for the cause of electronic measurement.

Mr Justice Lloyd ruled there were insufficient grounds for The Wireless Group’s case against Rajar to proceed to trial, in a 21-page judgment handed down at 10 o’clock this morning.

Both parties were informed of the outcome last night and McKenzie did not appear in court in person to receive the formal judgment.

He said in a statement: “Rajar may have won a legal skirmish, but the war goes on until technology-based audience measurement is adopted.”

McKenzie has indicated he will not appeal but credited TWG’s legal action with spurring on Rajar to produce a timetable for electronic measurement just weeks before the hearing.

He warned that TWG would pursue further action if Rajar did not bring in an electronic system as promised by January 2007.

TWG had argued that Rajar’s decision not to adopt electronic measurement in 2003 was a abuse of its dominant position, which unfairly disadvantaged TWG national commercial station TalkSport against other, more established stations.

But Mr Justice Lloyd said the claimant’s description of Rajar’s decision “did not match the reality of the case” and failed to take into account that the choice was not simply between a diary based system and an electronic one, but also between two different audiometers.

“It was a business decision to the effect that each device requires further investigation before a choice could be made in favour of either,” he said in the written judgment.

He added: “that is a rational commercial approach, especially when the implications of a change to either would require a good deal of further discussion both with the supplier and with the industry, as well as the specification and placing of the new contract for the provision of the audience research.”

The judge ordered TWG to pay interim costs of £225,000 by 6 January, with the balance to be determined later. TWG has budgeted £700,000 for both parties costs, to recorded as exceptional items in 2004.

Outside the court, Sally de la Bedoyere, managing director of Rajar was jubilant.

“It’s a great result it’s great for radio and its great for Rajar,” she said.

De la Bedoyere said it had been “a long year” and she now hoped Rajar could get on with its mission of radio measurement and research.

“It’s completed vindicated us and delighted us,” she said. “We’ve spent a year with all sorts of accusations and all sorts of claims thrown at us. This shows that our practices and everything we have done has been absolutely right.”

De la Bedoyere said Rajar had been “at the forefront of media testing since 1992” and was a role model for its counterparts around the world.

By Caitlin Fitzsimmons