This is the title I chose for my personal blog, which is meant to give me an outlet for one of my favorite crafts – writing – plus to use an image from my favorite sport, golf.  Out of college, my first job was as a reporter for the Daily Astorian in Astoria, Oregon, and I went on from there to practice writing in all my professional positions, including as press secretary in Washington, D.C. for a Democrat Congressman from Oregon (Les AuCoin), as an Oregon state government manager in Salem and Portland, as press secretary for Oregon’s last Republican governor (Vic Atiyeh), and as a private sector lobbyist.  This blog also allows me to link another favorite pastime – politics and the art of developing public policy – to what I write.  I could have called this blog “Middle Ground,” for that is what I long for in both politics and golf.  The middle ground is often where the best public policy decisions lie.  And it is where you want to be on a golf course.

The word “non-compete” is not one in normal use these days.  But, when the word is used, it conjures up a memory for me from my time as a state lobbyist.

In the case I remember, I represented the Oregon Association of Broadcasters (OAB), a group of more than 200 radio and television stations around Oregon.

Some members of the association – mainly larger TV stations – used non-competes to protect their investments in high-profile on-air talent, such as those who carry the title “anchor.”  Often, these investments, mainly in advertising, ran into the millions of dollars.

Think of it this way.  Suppose a television station invests money promoting “person X” as an anchor.  That person, with such an investment behind them, should not be allowed on a moment’s notice to leave to go to another competing station down the road.

That’s what station managers believed and that’s why they installed non-compete clauses in high-profile contracts.

So, what’s the actual definition of the term non-compete?  This:

“A non-compete agreement is a contract between two parties, usually two individuals or one company and one individual, in which one of the individuals promises not to compete with the other individual or company once their relationship with the company has ended.”

All of this comes up because the Federal Trade Commission is now proposing a rule to prohibit employers from using non-compete clauses which it contends “suppresses pay, prevents new companies from forming, and raises consumer prices.”

Eugene Scalia, former U.S. Secretary of Labor, labeled it a “breath-taking power move,” when he wrote this in the Wall Street Journal:

“The Federal Trade Commission’s ban on non-compete agreements may be the most audacious federal rule ever proposed.  If finalized, it would outlaw terms in 30 million contracts and pre-empt laws in virtually every state.  It would also, by the FTC’s own account, reduce capital investment, worker training and possibly job growth, while increasing the wage gap.”

The good news, Scalia writes, is that the proposal is unlikely to become law, though that is clearly a prediction, not a fact, because it would not be surprising if the Trade Commission approved the final rule.

The prospect of the ban has been met with outrage from some parts of business community — including the U.S. Chamber of Commerce, which maintains that non-compete agreements promote competition and innovation, and to put an important point on it, protect companies where employees are aware of trade secrets which they could, if left without non-competes, take down the road to competitors.

“Actions by the Federal Trade Commission to outright ban non-compete clauses in all employer contracts is blatantly unlawful,” Sean Heather, a U.S. Chamber official, said in response to news of the proposed rule.  “Since the agency’s creation over 100 years ago, Congress has never delegated the FTC anything close to the authority it would need to promulgate such a competition rule.”

The use of non-compete clauses dates back hundreds of years.  Such restrictions were originally meant to protect a business’s trade secrets – and, for the Oregon broadcasters, such contracts protected huge investments in ongoing business.

For me, as the broadcasters’ lobbyist, the issue arose in 2009 because the American Federation of Television and Radio Artists (AFTRA) – a union — came to the Capitol to oppose OAB non-compete agreements. 

No one knew why AFTRA showed up because it was not usually involved in Salem, but the union got support from then-Oregon Senator Rick Metsger, a former TV broadcaster who didn’t like broadcast managers, including those for whom he worked in Portland.

Metsger also didn’t seem to care one wit about the rationale for non-compete agreements as they had been negotiated by OAB member stations. 

As Metsger moved ahead with his ban proposal, I almost lost the battle until I proposed the following language, which, in the 2009 legislative session, made into law in the form of an amendment to ORS 653.020.  Sorry, this is pretty detailed language, but, then, so is the issue.

“(c) The employer has a protectable interest. As used in this paragraph, an employer has a protectable interest when the employee:

“(A) Has access to trade secrets, as that term is defined in ORS 646.461;

“(B) Has access to competitively sensitive confidential business or professional information that otherwise would not qualify as a trade secret, including product development plans, product launch plans, marketing strategy or sales plans; or

“(C) Is employed as an on-air talent by an employer in the business of broadcasting and the employer:  In the year preceding the termination of the employee′s employment, expended re-sources equal to or exceeding 10 per cent of the employee′s annual salary to develop, improve, train or publicly promote the employee, provided that the resources expended by the employer were expended on media that the employer does not own or control; and

“(ii) Provides the employee, for the time the employee is restricted from working, the greater of compensation equal to at least 50 per cent of the employee′s annual gross base salary and commissions at the time of the employee′s termination or 50 per cent of the median family income for a four-person family, as determined by the United States Census Bureau for the most recent year available at the time of the employee′s termination.”

Fortunately, this language recognized the specific circumstances of broadcast executives instead of imposing a one-size-fits-all approach currently being contemplated by federal regulators.

See, as I told you earlier, more than you may want to know about this arcane issue – non-competes.  But, to the broadcast industry in Oregon, it is important.