Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Market Data Section of Its Fee Schedule, 41522-41528 [2015-17294]

Download as PDF 41522 Federal Register / Vol. 80, No. 135 / Wednesday, July 15, 2015 / Notices participants, including market makers, institutional investors and retail investors, to establish greater positions when pursuing their investment goals and needs. B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any aspect of competition, whether between the Exchange and its competitors, or among market participants. Instead, the proposed rule change is designed to allow the SPY Pilot Program to continue uninterrupted. Additionally, the Exchange expects all other SROs that currently have rules regarding the SPY Pilot Program to also extend the pilot program for an additional year. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received with respect to the proposed rule change. mstockstill on DSK4VPTVN1PROD with NOTICES III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b– 4(f)(6) thereunder.7 A proposed rule change filed pursuant to Rule 19b–4(f)(6) under the Act 8 normally does not become operative for 30 days after the date of its filing. However, Rule 19b–4(f)(6)(iii) 9 permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon 7 17 CFR 240.19b–4(f)(6). As required under Rule 19b–4(f)(6)(iii), the Exchange provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and the text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. 8 17 CFR 240.19b–4(f)(6). 9 17 CFR 240.19b–4(f)(6)(iii). VerDate Sep<11>2014 18:52 Jul 14, 2015 Jkt 235001 filing. The Exchange believes that waiver of the operative delay is consistent with the protection of investors and the public interest because it will allow the SPY Pilot Program to continue without interruption. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. Therefore, the Commission hereby waives the operative delay and designates the proposed rule change operative upon filing.10 At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– NYSEMKT–2015–49 on the subject line. Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR– NYSEMKT–2015–49, and should be submitted on or before August 5, 2015. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.11 Brent J. Fields, Secretary. [FR Doc. 2015–17304 Filed 7–14–15; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–75406; File No. SR–BATS– 2015–48] Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Market Data Section of Its Fee Schedule Paper Comments • Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–NYSEMKT–2015–49. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s Internet Web site (https://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the July 9, 2015. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on July 1, 2015, BATS Exchange, Inc. (the ‘‘Exchange’’ or ‘‘BATS’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Exchange has designated the proposed rule change as one establishing or changing a member due, fee, or other charge imposed by the Exchange under Section 19(b)(3)(A)(ii) of the Act 3 and Rule 19b–4(f)(2) thereunder,4 which purposes only of waiving the 30-day operative delay, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). PO 00000 10 For Frm 00049 Fmt 4703 Sfmt 4703 11 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 3 15 U.S.C. 78s(b)(3)(A)(ii). 4 17 CFR 240.19b–4(f)(2). 1 15 E:\FR\FM\15JYN1.SGM 15JYN1 Federal Register / Vol. 80, No. 135 / Wednesday, July 15, 2015 / Notices renders the proposed rule change effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of the Substance of the Proposed Rule Change The Exchange filed a proposal to amend the Market Data section of its fee schedule to: (i) Adopt User fees, an Enterprise fee, and a Digital Media Enterprise fee for the BZX Top and BZX Last Sale feeds; and (ii) make a nonsubstantive change to the description of the BATS One Feed Enterprise Fee as well as correct a cross-reference within the definition of ‘‘Non-Professional User’’. The text of the proposed rule change is available at the Exchange’s Web site at www.batstrading.com, at the principal office of the Exchange, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change mstockstill on DSK4VPTVN1PROD with NOTICES 1. Purpose The Exchange proposes to amend the Market Data section of its fee schedule to: (i) Adopt User fees, an Enterprise fee, and a Digital Media Enterprise fee for the BZX Top and BZX Last Sale feeds; and (ii) make a non-substantive change to the description of the BATS One Feed Enterprise Fee as well as correct a crossreference within the definition of ‘‘NonProfessional User’’. BZX Top and Last Sale Fees BZX Top is a market data feed that includes top of book quotations and execution information for all equity securities traded on the Exchange.5 BZX Last Sale is a market data feed that 5 See Exchange Rule 11.22(d). VerDate Sep<11>2014 18:52 Jul 14, 2015 Jkt 235001 includes last sale information for all equity securities traded on Exchange.6 Currently, the Exchange only charges fees for both internal and external distribution of the BZX Last Sale and BZX Top feeds. The cost of BZX Last Sale for an Internal Distributor 7 is $500 per month. Likewise, the cost of BZX Top for an Internal Distributor is also $500 per month. The Exchange currently does not charge per User 8 fees for either BZX Last Sale or BZX Top. Therefore, the Exchange does not currently require an External Distributor 9 of BZX Last Sale or BZX Top to count, classify (e.g., professional or non-professional), or report to the Exchange information regarding the customers to which they provide the data. Instead, the Exchange charges an External Distributor of BZX Last Sale a flat fee of $2,500 per month. The Exchange also separately charges an External Distributor of BZX Top a flat fee of $2,500 per month. End Users currently do not pay the Exchange for BZX Last Sale or BZX Top, nor are End Users required to enter into contracts with the Exchange. Subscribers to either BZX Top or BZX Last Sale are able to receive, upon request and at no additional cost, BZX Last Sale or BZX Top, as applicable. The Exchange also offers a New External Distributor Credit under which new External Distributors of BZX Top or BZX Last Sale will not be charged a Distributor Fee for their first three (3) months. The Exchange now proposes to amend its fee schedule to incorporate additional fees related to the BZX Top or BZX Last Sale feeds.10 These fees Exchange Rule 11.22(g). ‘‘Internal Distributor’’ is defined as ‘‘a Distributor that receives the Exchange Market Data product and then distributes that data to one or more Users within the Distributor’s own entity.’’ See the Exchange Fee Schedule available at https:// batstrading.com/support/fee_schedule/bzx/. A ‘‘Distributor’’ is defined as ‘‘any entity that receives the Exchange Market Data product directly from the Exchange or indirectly through another entity and then distributes it internally or externally to a third party.’’ Id. 8 A ‘‘User’’ is defined as ‘‘a natural person, a proprietorship, corporation, partnership, or entity, or device (computer or other automated service), that is entitled to receive Exchange data.’’ Id. 9 An ‘‘External Distributor’’ is defined as ‘‘a Distributor that receives the Exchange Market Data product and then distributes that data to a third party or one or more Users outside the Distributor’s own entity.’’ Id. 10 The Exchange notes that EDGA Exchange, Inc. (‘‘EDGA’’), EDGX Exchange, Inc. (‘‘EDGX’’) and BATS Y-Exchange, Inc. (‘‘BYX’’, together with the Exchange, EDGA and EDGX, the ‘‘BATS Exchanges’’) also filed proposed rule changes with Commission to adopt similar fees for their respective Top and Last Sale market data product. See File Nos. SR–EDGA–2015–25, SR–EDGX–2015– 28, and SR–BYX–2015–30. The Exchange PO 00000 6 See 7 An Frm 00050 Fmt 4703 Sfmt 4703 41523 include the following, each of which are described in detail below: (i) Usage Fees for both Professional 11 and NonProfessional 12 Users; 13 (ii) Enterprise Fees; 14 and (iii) a Digital Media Enterprise Fee. User Fees. The Exchange proposes to charge those who receive either BZX Top or BZX Last Sale from External Distributors different fees for both their Professional Users and Non-Professional Users. The Exchange will assess a monthly fee for Professional Users of $4.00 per User. Non-Professional Users will be assessed a monthly fee of $0.10 per User.15 The Exchange does not represents that the proposed fees will not cause the combined cost of subscribing to each of the BATS Exchanges’ individual Top and Last Sale feeds to be greater than those currently charged to subscribe to the BATS One Feed. See Securities Exchange Act Release Nos. 74285 (February 18, 2015), 80 FR 9828 (February 24, 2015) (SR–BATS–2015–11); 74283 (February 18, 2015), 80 FR 9809 (February 24, 2015) (SR–EDGA–2015–09); 74282 (February 17, 2015), 80 FR 9487 (February 23, 2015) (SR–EDGX–2015–09); and 74284 (February 18, 2015), 80 FR 9792 (February 24, 2015) (SR–BYX–2015–09) (‘‘Initial BATS One Feed Fee Filings’’). In these filings, the Exchange represented that the cost of subscribing to each of the underlying individual feeds necessary to create the BATS One Feed would not be greater than the cost of subscribing to the BATS One Feed. Id. 11 A ‘‘Professional User’’ is defined as ‘‘any User other than a Non-Professional User.’’ See the Exchange Fee Schedule available at https:// batstrading.com/support/fee_schedule/bzx/. 12 A ‘‘Non-Professional User’’ is defined as ‘‘a natural person who is not: (i) Registered or qualified in any capacity with the Commission, the Commodity Futures Trading Commission, any state securities agency, any securities exchange or association, or any commodities or futures contract market or association; (ii) engaged as an ‘‘investment adviser’’ as that term is defined in Section [202(a)(11)] of the Investment Advisers Act of 1940 (whether or not registered or qualified under that Act); or (iii) employed by a bank or other organization exempt from registration under federal or state securities laws to perform functions that would require registration or qualification if such functions were performed for an organization not so exempt.’’ Id. 13 The Exchange notes that User fees as well as the distinctions based on professional and nonprofessional users have been previously filed with or approved by the Commission by the BATS Exchanges and the Nasdaq Stock Market LLC (‘‘Nasdaq’’). See Securities Exchange Act Release No. 59582 (March 16, 2009), 74 FR 12423 (March 24, 2009) (Order approving SR–Nasdaq–2008–102). See also the Initial BATS One Feed Fee Filings, supra note 11 [sic]. 14 The Exchange notes that Enterprise fees have been previously filed with or approved by the Commission by the Exchange, EDGA, EDGX, BYX, Nasdaq, NYSE, and the CTA/CQ Plans. See Nasdaq Rule 7047. Securities Exchange Act Release Nos. 71507 (February 7, 2014), 79 FR 8763 (February 13, 2014) (SR–NASDAQ–2014–011); 70211 (August 15, 2013), 78 FR 51781 (August 21, 2013) (SR–NYSE– 2013–58); and 70010 (July 19, 2013) (File No. SR– CTA/CQ–2013–04). See also the Initial BATS One Feed Fee Filings, supra note 11 [sic]. 15 The Exchange notes that EDGA, EDGX and BYX also filed proposed rule changes with Commission to adopt User fees for their respective Top and Last Sale market data product. See File E:\FR\FM\15JYN1.SGM Continued 15JYN1 41524 Federal Register / Vol. 80, No. 135 / Wednesday, July 15, 2015 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES propose to charge per User fees to Internal Distributors. External Distributors would be required to count every Professional User and Non-Professional User to which they provide BZX Top and/or BZX Last Sale, the requirements for which are identical to that currently in place for the BATS One Feed.16 Thus, the External Distributor’s count will include every person and device that accesses the data regardless of the purpose for which the individual or device uses the data. External Distributors must report all Professional and Non-Professional Users in accordance with the following: • In connection with an External Distributor’s distribution of BZX Top or BZX Last Sale, the Distributor should count as one User each unique User that the Distributor has entitled to have access to BZX Top or BZX Last Sale. However, where a device is dedicated specifically to a single individual, the Distributor should count only the individual and need not count the device. • The External Distributor should identify and report each unique User. If a User uses the same unique method to gain access to BZX Top or BZX Last Sale, the Distributor should count that as one User. However, if a unique User uses multiple methods to gain access to BZX Top or BZX Last Sale (e.g., a single User has multiple passwords and user identifications), the External Distributor should report all of those methods as an individual User. • External Distributors should report each unique individual person who receives access through multiple devices as one User so long as each device is dedicated specifically to that individual. • If an External Distributor entitles one or more individuals to use the same device, the External Distributor should include only the individuals, and not the device, in the count. Nos. SR–EDGA–2015–25, SR–EDGX–2015–28 and SR–BYX–2015–30 (proposing a monthly fee of $2.00 per Professional User and of $0.05 per NonProfessional User). A vendor that wishes to create a product like the BATS One Summary Feed could subscribe to each of the BATS Exchanges’ Top and Last Sale feeds. See the Initial BATS One Feed Fee Filings, supra note 11 [sic]. Should a vendor subscribe to each of the BATS Exchanges’ Top and Last Sale feeds, it would be charged a total of $10.00 per month per Professional User and $0.25 per month per Non-Professional User. This amount is equal to, and not greater than the User Fees charged for the BATS One Summary Feed. Id. (adopting fees of $10.00 per month per Professional User and $0.25 per month per Non-Professional User as well as a separate $1,000 per month Data Consolidation Fee for the BATS One Summary Feed). 16 See the Initial BATS One Feed Fee Filings, supra note 11 [sic]. VerDate Sep<11>2014 18:52 Jul 14, 2015 Jkt 235001 Each External Distributor will receive a credit against its monthly Distributor Fee for BZX Top or BZX Last Sale equal to the amount of its monthly Usage Fees up to a maximum of the Distributor Fee for BZX Top or BZX Last Sale. For example, an External Distributor will be subject to a $2,500 monthly Distributor Fee where they elect to receive BZX Top. If that External Distributor reports User quantities totaling $2,500 or more of monthly usage of BZX Top, it will pay no net Distributor Fee, whereas if that same External Distributor were to report User quantities totaling $1,500 of monthly usage, it will pay a net of $1,000 for the Distributor Fee. External Distributors will remain subject to the per User fees discussed above. The same would apply to receipt of BZX Last Sale. Enterprise Fee. The Exchange also proposes to establish a $15,000 per month Enterprise Fee that will permit a recipient firm who receives BZX Top or BZX Last Sale from an External Distributor to receive the data for an unlimited number of Professional and Non-Professional Users.17 For example, if a recipient firm had 15,000 Professional Users who each receive BZX Top or BZX Last Sale at $4.00 per month, then that recipient firm will pay $60,000 per month in Professional Users fees. Under the proposed Enterprise Fee, the recipient firm will pay a flat fee of $15,000 for an unlimited number of Professional and Non-Professional Users for BZX Top or BZX Last Sale. A recipient firm must pay a separate Enterprise Fee for each External Distributor that controls display of BZX Top or BZX Last Sale if it wishes such User to be covered by an Enterprise Fee rather than by per User fees. A recipient firm that pays the Enterprise Fee will not have to report its number of such Users on a monthly basis. However, every six months, a recipient firm must provide the Exchange with a count of the total number of natural person users 17 The Exchange notes that EDGA, EDGX and BYX also filed proposed rule changes with Commission to adopt Enterprise Fees for their respective Top and Last Sale market data product. See File Nos. SR–EDGA–2015–25, SR–EDGX–2015– 28 and SR–BYX–2015–30 (proposing a monthly Enterprise Fee of $15,000 for EDGX Top and EDGX Last Sale and $10,000 for EDGA Top and Last Sale as well as BYX Top and Last Sale). A vendor that wishes to create a product like the BATS One Summary Feed could subscribe to each of the BATS Exchanges’ Top and Last Sale feeds. See the Initial BATS One Feed Fee Filings, supra note 11 [sic]. Should a vendor subscribe to each of the BATS Exchanges’ Top and Last Sale feeds, it would be charged a total monthly Enterprise Fee of $50,000. This amount is equal to, and not greater than the Enterprise Fee charged for the BATS One Summary Feed. Id. (adopting a monthly Enterprise Fee of $50,000 as well as a separate $1,000 per month Data Consolidation Fee for the BATS One Summary Feed). PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 of each product, including both Professional and Non-Professional Users. Lastly, the proposed Enterprise Fee would be counted towards the Distributor Fee credit described above, under which an External Distributor receives a credit towards its Distributor Fee equal to the amount of its monthly BZX Top or BZX Last Sale usage fees. Digital Media Enterprise Fee. The Exchange proposes to adopt a Digital Media Enterprise Fee of $2,500 per month for BZX Top and BZX Last Sale.18 As an alternative to proposed User fees discussed above, a recipient firm may purchase a monthly Digital Media Enterprise license to receive BZX Top and BZX Last Sale from an External Distributor to distribute to an unlimited number of Professional and NonProfessional Users for viewing via television, Web sites, and mobile devices for informational and nontrading purposes only without having to account for the extent of access to the data or the report the number of Users to the Exchange. Lastly, the proposed Digital Media Enterprise Fee would be counted towards the Distributor Fee credit described above, under which an External Distributor receives a credit towards its Distributor Fee equal to the amount of its monthly BZX Top and/or BZX Last Sale usage fees. Non-Substantive, Corrective Changes The Exchange proposes to make a non-substantive change to the description of the BATS One Feed Enterprise Fee as well as correct a crossreference within the definition of ‘‘NonProfessional User’’. First, the proposed change to the description of the BATS One Feed 19 18 The Exchange notes that EDGA, EDGX and BYX also filed proposed rule changes with Commission to adopt a Digital Media Enterprise Fee for their respective Top and Last Sale market data product. See File Nos. SR–EDGA–2015–25, SR– EDGX–2015–28 and SR–BYX–2015–30 (proposing a monthly Digital Media Enterprise Fee of $2,500 for their respective Top and Last Sale feeds). A vendor that wishes to create a product like the BATS One Summary Feed could subscribe to each of the BATS Exchanges’ Top and Last Sale feeds. See the Initial BATS One Feed Fee Filings, supra note 11 [sic]. Should a vendor subscribe to each of the BATS Exchanges’ Top and Last Sale feeds, it would be charged a total monthly Digital Media Enterprise Fee of $10,000. This amount is less than the Digital Media Enterprise Fee charged for the BATS One Summary Feed. See Securities Exchange Act Release Nos. 74598 (March 27, 2015), 80 FR 17791 (April 2, 2015) (SR–BATS–2015–24); 74599 (March 27, 2015), 80 FR 17812 (April 2, 2015) (SR–BYX– 2015–19); 74600 (March 27, 2014), 80 FR 17797 (April 2, 2015) (SR–EDGA–2015–14); and 74601 (March 27, 2015), 80 FR 17804 (April 2, 2015) (SR– EDGX–2015–14) (adopting a monthly Digital Media Enterprise Fee of $15,000 for the BATS One Summary Feed). 19 In sum, the BATS One Feed is a data feed that disseminates, on a real-time basis, the aggregate best E:\FR\FM\15JYN1.SGM 15JYN1 Federal Register / Vol. 80, No. 135 / Wednesday, July 15, 2015 / Notices Enterprise Fee is intended to align with the descriptions of the Enterprise Fees for BZX Top and BZX Last Sale proposed above. The fee schedule currently states that: [a]s an alternative to User fees, a recipient firm may purchase a monthly Enterprise license to receive the BATS One Feed from an External Distributor to an unlimited number of Professional and Non-Professional Users. A recipient firm must pay a separate Enterprise Fee for each External Distributor that controls the display of the BATS One Feed if it wishes such User to be covered by the Enterprise Fee. The Enterprise Fee is in addition to the Distributor Fee. mstockstill on DSK4VPTVN1PROD with NOTICES The Exchange proposes to delete the last sentence of the above description stating that the Enterprise Fee is in addition to the Distributor Fee. The original purpose of this sentence was to clarify that the Distributor Fee and Enterprise Fee were separate fees. However, the Exchange understands that this sentence has led to confusion for the following reason. As is the case for the proposed Enterprise Fees for BZX Top and BZX Last Sale described above, the BATS One Feed Enterprise Fee is counted towards the Distributor Fee credit, under which an External Distributor receives a credit towards its Distributor Fee equal to the amount of its monthly BATS One Feed Usage Fees. Stating that the Enterprise and Distributor fees were separate fees has caused confusion regarding the application of the Distributor Fee Usage Fee credit. Therefore, the Exchange proposes to delete the last sentence stating that the Enterprise Fee is in addition to the Distributor Fee. Deleting this sentence does not alter the manner in which the Enterprise Fee is charged. Rather, it is intended to avoid confusion and align the description with that of the proposed Enterprise Fees for BZX Top and BZX Last Sale described above. Second, the Exchange proposes to correct a cross-reference within the bid and offer (‘‘BBO’’) of all displayed orders for securities traded on BZX and its affiliated exchanges and for which the BATS Exchanges report quotes under the Consolidated Tape Association (‘‘CTA’’) Plan or the Nasdaq/UTP Plan. The BATS One Feed also contains the individual last sale information for the BATS Exchanges (collectively with the aggregate BBO, the ‘‘BATS One Summary Feed’’). In addition, the BATS One Feed contains optional functionality which enables recipients to receive aggregated two-sided quotations from the BATS Exchanges for up to five (5) price levels (‘‘BATS One Premium Feed’’). See Securities Exchange Act Release No. 73918 (December 23, 2014), 79 FR 78920 (December 31, 2014) (File Nos. SR–EDGX–2014–25; SR–EDGA– 2014–25; SR–BATS–2014–055; SR–BYX–2014–030) (Notice of Amendments No. 2 and Order Granting Accelerated Approval to Proposed Rule Changes, as Modified by Amendments Nos. 1 and 2, to Establish a New Market Data Product called the BATS One Feed) (‘‘BATS One Approval Order’’). VerDate Sep<11>2014 18:52 Jul 14, 2015 Jkt 235001 definition of ‘‘Non-Professional User’’. In part, a ‘‘Non-Professional User’’ is currently defined as ‘‘a natural person who is not: . . . engaged as an ‘‘investment adviser’’ as that term is defined in Section 201(11) of the Investment Advisers Act of 1940 (whether or not registered or qualified under that Act) . . .’’ The definition incorrectly states that the term ‘‘investment adviser is defined under Section 201(11) of the Investment Advisers Act of 1940, when it is, in fact, defined under Section 202(a)(11) of the Investment Advisers Act of 1940. Therefore, the Exchange proposes to replace the reference to Section 201(11) with Section 202(a)(11) within the definition of Non-Professional User. Implementation Date The Exchange proposes to implement the proposed changes to its fee schedule on July 1, 2015. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,20 in general, and furthers the objectives of Section 6(b)(4),21 in particular, as it is designed to provide for the equitable allocation of reasonable dues, fees and other charges among its members and other recipients of Exchange data. The Exchange believes that the proposed rates are equitable and nondiscriminatory in that they apply uniformly to all recipients of Exchange data. The Exchange believes the proposed fees are competitive with those charged by other venues and, therefore, reasonable and equitably allocated to recipients. Lastly, the Exchange also believes that the proposed fees are reasonable and nondiscriminatory because they will apply uniformly to all recipients of Exchange data. The Exchange also believes that the proposed rule change is consistent with Section 11(A) of the Act 22 in that it supports (i) fair competition among brokers and dealers, among exchange markets, and between exchange markets and markets other than exchange markets and (ii) the availability to brokers, dealers, and investors of information with respect to quotations for and transactions in securities. Furthermore, the proposed rule change is consistent with Rule 603 of Regulation NMS,23 which provides that any national securities exchange that PO 00000 20 15 U.S.C. 78f. U.S.C. 78f(b)(4). 22 15 U.S.C. 78k–1. 23 See 17 CFR 242.603. 21 15 Frm 00052 Fmt 4703 Sfmt 4703 41525 distributes information with respect to quotations for or transactions in an NMS stock do so on terms that are not unreasonably discriminatory. In adopting Regulation NMS, the Commission granted self-regulatory organizations and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. In addition, the proposed fees would not permit unfair discrimination because all of the Exchange’s customers and market data vendors will be subject to the proposed fees on an equivalent basis. BZX Last Sale and BZX Top are distributed and purchased on a voluntary basis, in that neither the Exchange nor market data distributors are required by any rule or regulation to make this data available. Accordingly, Distributors and Users can discontinue use at any time and for any reason, including due to an assessment of the reasonableness of fees charged. Firms have a wide variety of alternative market data products from which to choose, such as similar proprietary data products offered by other exchanges and consolidated data. Moreover, the Exchange is not required to make any proprietary data products available or to offer any specific pricing alternatives to any customers. In addition, the fees that are the subject of this rule filing are constrained by competition. As explained below in the Exchange’s Statement on Burden on Competition, the existence of alternatives to BZX Top and BZX Last Sale further ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect such alternatives. That is, the Exchange competes with other exchanges (and their affiliates) that provide similar market data products. If another exchange (or its affiliate) were to charge less to consolidate and distribute its similar product than the Exchange charges to consolidate and distribute BZX Top or BZX Last Sale, prospective Users likely would not subscribe to, or would cease subscribing to, the BZX Top or BZX Last Sale. The Exchange notes that the Commission is not required to undertake a cost-of-service or ratemaking approach. The Exchange believes that, even if it were possible as a matter of economic theory, cost-based pricing for non-core market data would E:\FR\FM\15JYN1.SGM 15JYN1 41526 Federal Register / Vol. 80, No. 135 / Wednesday, July 15, 2015 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES be so complicated that it could not be done practically.24 User Fees. The Exchange believes that implementing the Professional and NonProfessional User fees for BZX Top and BZX Last Sale is equitable and reasonable because it will result in greater availability to Professional and Non-Professional Users. Moreover, introducing a modest Non-Professional User fee for BZX Top and BZX Last Sale is reasonable because it provides an additional method for retail investors to access BZX Top and BZX Last Sale data by providing the same data that is available to Professional Users. The Exchange believes that the proposed fees are equitable and not unfairly discriminatory because they will be charged uniformly to recipient firms and Users. The fee structure of differentiated Professional and NonProfessional fees is utilized by the Exchange for the BATS One Feed and has long been used by other exchanges for their proprietary data products, and by the Nasdaq UTP and the CTA and CQ Plans in order to reduce the price of data to retail investors and make it more broadly available.25 Offering BZX Top and BZX Last Sale to Non-Professional Users with the same data available to 24 The Exchange believes that cost-based pricing would be impractical because it would create enormous administrative burdens for all parties, including the Commission, to cost-regulate a large number of participants and standardize and analyze extraordinary amounts of information, accounts, and reports. In addition, it is impossible to regulate market data prices in isolation from prices charged by markets for other services that are joint products. Cost-based rate regulation would also lead to litigation and may distort incentives, including those to minimize costs and to innovate, leading to further waste. Under cost-based pricing, the Commission would be burdened with determining a fair rate of return, and the industry could experience frequent rate increases based on escalating expense levels. Even in industries historically subject to utility regulation, cost-based ratemaking has been discredited. As such, the Exchange believes that cost-based ratemaking would be inappropriate for proprietary market data and inconsistent with Congress’s direction that the Commission use its authority to foster the development of the national market system, and that market forces will continue to provide appropriate pricing discipline. See Appendix C to NYSE’s comments to the Commission’s 2000 Concept Release on the Regulation of Market Information Fees and Revenues, which can be found on the Commission’s Web site at https:// www.sec.gov/rules/concept/s72899/buck1.htm. See also Securities Exchange Act Release No. 73816 (December 11, 2014), 79 FR 75200 (December 17, 2014) (SR–NYSE–2014–64) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Establish an Access Fee for the NYSE Best Quote and Trades Data Feed, Operative December 1, 2014). 25 See the Initial BATS One Feed Fee Filings, supra note 11 [sic]. See also, e.g., Securities Exchange Act Release No. 20002, File No. S7–433 (July 22, 1983) (establishing nonprofessional fees for CTA data); Nasdaq Rules 7023(b), 7047. VerDate Sep<11>2014 18:52 Jul 14, 2015 Jkt 235001 Professional Users results in greater equity among data recipients. In addition, the proposed fees are reasonable when compared to similar fees for comparable products offered by the NYSE. Specifically, NYSE offers NYSE BBO, which includes best bid and offer for NYSE traded securities, for a monthly fee of $4.00 per professional subscriber and $0.20 per nonprofessional subscriber.26 NYSE also offers NYSE Trades, which is a data feed that provides the last sale information for NYSE traded securities, for the same price as NYSE BBO. The Exchange’s proposed per User Fees for BZX Top and BZX Last Sale are comparable with the NYSE’s fees for NYSE Trades and NYSE BBO. Enterprise Fee. The proposed Enterprise Fee for BZX Top and BZX Last Sale are equitable and reasonable as the fees proposed are less than the enterprise fees currently charged for NYSE Trades and NYSE BBO. The NYSE charges a separate enterprise fee of $190,000 per month for NYSE Trades and NYSE BBO.27 In addition, the Enterprise Fee proposed by the Exchange could result in a fee reduction for recipient firms with a large number of Professional and Non-Professional Users. If a recipient firm has a smaller number of Professional Users of BZX Top or BZX Last Sale, then it may continue using the per User structure and benefit from the per User Fee reductions. By reducing prices for recipient firms with a large number of Professional and Non-Professional Users, the Exchange believes that more firms may choose to receive and to distribute the BZX Top or BZX Last Sale, thereby expanding the distribution of this market data for the benefit of investors. The Exchange further believes that the proposed Enterprise Fee is reasonable because it will simplify reporting for certain recipients that have large numbers of Professional and NonProfessional Users. Firms that pay the proposed Enterprise Fee will not have to report the number of Users on a monthly basis as they currently do, but rather will only have to count natural person users every six months, which is a significant reduction in administrative burden. Finally, the Exchange believes that it is equitable and not unfairly discriminatory to establish an Enterprise Fee because it reduces the Exchange’s costs and the Distributor’s administrative burdens in tracking and auditing large numbers of Users. 26 See NYSE Market Data Pricing dated May 2015 available at https://www.nyxdata.com/. 27 Id. PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 Digital Media Enterprise Fee. The Exchange believes that the proposed Digital Media Enterprise Fee for BZX Top and BZX Last Sale provides for an equitable allocation of reasonable fees among recipients of the data and is not designed to permit unfair discrimination among customers, brokers, or dealers. In establishing the Digital Media Enterprise Fee, the Exchange recognizes that there is demand for a more seamless and easierto-administer data distribution model that takes into account the expanded variety of media and communication devices that investors utilize today. The Exchange believes the Digital Media Enterprise Fee will be easy to administer because data recipients that purchase it would not be required to differentiate between Professional and Non-Professional Users, account for the extent of access to the data, or report the number of Users. This is a significant reduction on a recipient firm’s administrative burdens and is a significant value to investors. For example, a television broadcaster could display BZX Top and/or BZX Last Sale data during market-related programming and on its Web site or allow viewers to view the data via their mobile devices, creating a more seamless distribution model that will allow investors more choice in how they receive and view market data, all without having to account for and/or measure who accesses the data and how often they do so. The proposed Digital Media Enterprise Fee is equitable and reasonable because it will also enable recipient firms to more widely distribute data from BZX Top and BZX Last Sale to investors for informational purposes at a lower cost than is available today. For example, a recipient firm may purchase an Enterprise license in the amount of $15,000 per month for to receive BZX Top and/or BZX Last Sale from an External Distributor for an unlimited number of Professional and Non-Professional Users, which is greater than the proposed Digital Media Enterprise Fee. The Exchange also believes the amount of the Digital Media Enterprise Fee is reasonable as compared to the existing enterprise fees discussed above because the distribution of BZX Top and BZX Last Sale data is limited to television, Web sites, and mobile devices for informational purposes only, while distribution of BZX Top and BZX Last Sale data pursuant to an Enterprise license contains no such limitation. The Exchange also believes that the proposed Digital Media Enterprise Fee E:\FR\FM\15JYN1.SGM 15JYN1 Federal Register / Vol. 80, No. 135 / Wednesday, July 15, 2015 / Notices is equitable and reasonable because it is less than similar fees charged by other exchanges.28 Non-Substantive, Corrective Changes. The Exchange believes that the proposed non-substantive, corrective changes are consistent with Section 6(b) of the Act,29 in general, and Section 6(b)(4) of the Act,30 in particular, in that they provide for an equitable allocation of reasonable fees among recipients of the data and is not designed to permit unfair discrimination among customers, brokers, or dealers. These proposed changes are equitable and reasonable because the changes are designed to clarify the fee schedule and avoid potential investor confusion. The amendment to the BATS One Enterprise Fee is also intended to align the description with that of the proposed Enterprise Fees for BZX Top and BZX Last Sale described above. The proposed changes are also non-discriminatory as they would apply to all recipient firms uniformly. B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. mstockstill on DSK4VPTVN1PROD with NOTICES BZX Top and BZX Last Sale The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. The Exchange’s ability to price BZX Last Sale and BZX Top are constrained by: (i) Competition among exchanges, other trading platforms, and Trade Reporting Facilities (‘‘TRF’’) that compete with each other in a variety of dimensions; (ii) the existence of inexpensive realtime consolidated data and marketspecific data and free delayed data; and (iii) the inherent contestability of the market for proprietary data. The Exchange and its market data products are subject to significant competitive forces and the proposed fees represent responses to that competition. To start, the Exchange competes intensely for order flow. It competes with the other national 28 The Nasdaq Stock Market offers proprietary data products for distribution over the internet and television under alternative fee schedules that are subject to maximum fee of $50,000 per month. See Nasdaq Rule 7039(b). The NYSE charges a Digit Media Enterprise fee of $40,000 per month for the NYSE Trade Digital Media product. See Securities Exchange Act Release No. 69272 (April 2, 2013), 78 FR 20983 (April 8, 2013) (SR–NYSE–2013–23). 29 15 U.S.C. 78f. 30 15 U.S.C. 78f(b)(4). VerDate Sep<11>2014 18:52 Jul 14, 2015 Jkt 235001 securities exchanges that currently trade equities, with electronic communication networks, with quotes posted in FINRA’s Alternative Display Facility, with alternative trading systems, and with securities firms that primarily trade as principal with their customer order flow. In addition, BZX Last Sale and BZX Top compete with a number of alternative products. For instance, BZX Last Sale and BZX Top do not provide a complete picture of all trading activity in a security. Rather, the other national securities exchanges, the several TRFs of FINRA, and Electronic Communication Networks (‘‘ECN’’) that produce proprietary data all produce trades and trade reports. Each is currently permitted to produce last sale information products, and many currently do, including Nasdaq and NYSE. In addition, market participants can gain access to BZX last sale prices and top-of-book quotations, though integrated with the prices of other markets, on feeds made available through the SIPs. In sum, the availability of a variety of alternative sources of information imposes significant competitive pressures on Exchange data products and the Exchange’s compelling need to attract order flow imposes significant competitive pressure on the Exchange to act equitably, fairly, and reasonably in setting the proposed data product fees. The proposed data product fees are, in part, responses to that pressure. The Exchange believes that the proposed fees would reflect an equitable allocation of its overall costs to users of its facilities. In addition, when establishing the proposed fees, the Exchange considered the competitiveness of the market for proprietary data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all Users. The existence of alternatives to BZX Last Sale and BZX Top, including existing similar feeds by other exchanges, consolidated data, and proprietary data from other sources, ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect these alternatives or choose not to purchase a specific proprietary data product if its cost to purchase is not justified by the returns any particular vendor or subscriber would achieve through the purchase. PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 41527 Non-Substantive, Corrective Changes The proposed non-substantive, corrective changes to the fee schedule will not have any impact on completion. The proposed changes are designed to clarify the fee schedule and avoid potential investor confusion. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others The Exchange has neither solicited nor received written comments on the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 31 and paragraph (f) of Rule 19b–4 thereunder.32 At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– BATS–2015–48 on the subject line. Paper Comments • Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–BATS–2015–48. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s Internet Web site (https://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements 31 15 32 17 E:\FR\FM\15JYN1.SGM U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f). 15JYN1 41528 Federal Register / Vol. 80, No. 135 / Wednesday, July 15, 2015 / Notices with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–BATS– 2015–48, and should be submitted on or before August 5, 2015. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.33 Brent J. Fields, Secretary. [FR Doc. 2015–17294 Filed 7–14–15; 8:45 am] SECURITIES AND EXCHANGE COMMISSION [Release No. 34–75409; File No. SR–BX– 2015–038] Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rule 7018 mstockstill on DSK4VPTVN1PROD with NOTICES July 9, 2015. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on June 30, 2015, NASDAQ OMX BX, Inc. (‘‘BX’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 VerDate Sep<11>2014 18:52 Jul 14, 2015 Jkt 235001 II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change BILLING CODE 8011–01–P 33 17 I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend BX Rule 7018(a) and to eliminate the Excess Order Fee in BX Rule 7018(d). While the changes proposed herein are effective upon filing, the Exchange has designated that the amendments be operative on July 1, 2015. The text of the proposed rule change is also available on the Exchange’s Web site at https://nasdaqomxbx. cchwallstreet.com, at the principal office of the Exchange, and at the Commission’s Public Reference Room. 1. Purpose The Exchange is proposing to amend BX Rule 7018(a) and to eliminate the Excess Order Fee in BX Rule 7018(d). Specifically, BX Rule 7018(a) defines the criteria for a firm to become a Qualified Market Maker (‘‘QMM’’) as by being a member that provides through one or more of its NASDAQ OMX BX Equities System (‘‘System’’) market participant identifiers (‘‘MPIDs’’) more than 0.15% of consolidated volume (‘‘Consolidated Volume’’) during the month. For a member qualifying under this method, the member must have at least one qualified MPID (‘‘Qualified MPID’’), that is, an MPID through which, for at least 200 securities, the QMM quotes at the national best bid and offer (‘‘NBBO’’) an average of at least 50% of the time during regular market hours (9:30 a.m. through 4:00 p.m. ET) during the month. Currently, the member must also provide an average daily volume of 1.5M shares or more using orders with midpoint pegging during the month. The Exchange proposes to modify this last part of the criteria such that the member must also provide an average PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 daily volume of 1.5M shares or more of non-displayed liquidity (rather than using orders with midpoint liquidity) during the month. BX believes that by expanding the type of liquidity that allows firms to qualify as a QMM will improve the market by incentivizing firms to provide more liquidity and meet the other QMM criteria. Nondisplayed orders, which include midpoint liquidity, can provide price improvement and improve the experience of members trading on the Exchange and thus provide a benefit to all other Exchange members. The Exchange also proposes to delete BX Rule 7018(d), which is the Excess Order Fee. The Excess Order Fee was designed to provide a disincentive to member organizations to engage in order entry practices that are inefficient and thereby burdensome on the systems of BX by assessing a fee on member organizations if they reach a threshold of order activity based on an Order Entry Ratio calculation.3 Although not a pervasive characteristic of the market, the fee was adopted to encourage member organizations with such practices to enhance the efficiency of their systems and modify their order entry practices, thus improving the market for all participants.4 An unwanted consequence of the rule has been to capture beneficial, liquidity providing order flow and thereby dissuade member organizations from participating in BX in an effort to avoid triggering the fee. Moreover, the Exchange has observed that the fee is not assessed on a significant number of member organizations nor is it triggered every month, leading the Exchange to conclude that the small number of member organizations that may have been affected by the fee because of their inefficient order practices have taken the steps necessary to avoid such practices. The Exchange believes that, in light of the lack of consistent order activity that triggers the fee and the negative effect it has had on beneficial order flow, the Excess Order Fee should be eliminated. The Exchange notes that, should the inefficient order entry practices that gave rise to the fee once again arise, it may adopt the fee once again or take other steps to provide a disincentive for such practices. 2. Statutory Basis BX believes that the proposed rule change is consistent with the provisions 3 See BX Rule 7018(d)(2) for a definition of ‘‘Order Entry Ratio.’’ 4 See Securities Exchange Act Release No. 67272 (June 27, 2012), 77 FR 39530 (July 3, 2012) (SR–BX– 2012–042) (adopting the Excess Order Fee). E:\FR\FM\15JYN1.SGM 15JYN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 80, Number 135 (Wednesday, July 15, 2015)]
[Notices]
[Pages 41522-41528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17294]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-75406; File No. SR-BATS-2015-48]

Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend
the Market Data Section of Its Fee Schedule

July 9, 2015.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on July 1, 2015, BATS Exchange, Inc. (the ``Exchange'' or
``BATS'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Exchange has designated the proposed rule change as one establishing or
changing a member due, fee, or other charge imposed by the Exchange
under Section 19(b)(3)(A)(ii) of the Act \3\ and Rule 19b-4(f)(2)
thereunder,\4\ which

[[Page 41523]]

renders the proposed rule change effective upon filing with the
Commission. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A)(ii).
\4\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change

The Exchange filed a proposal to amend the Market Data section of
its fee schedule to: (i) Adopt User fees, an Enterprise fee, and a
Digital Media Enterprise fee for the BZX Top and BZX Last Sale feeds;
and (ii) make a non-substantive change to the description of the BATS
One Feed Enterprise Fee as well as correct a cross-reference within the
definition of ``Non-Professional User''.
The text of the proposed rule change is available at the Exchange's
Web site at www.batstrading.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
Sections A, B, and C below, of the most significant parts of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
The Exchange proposes to amend the Market Data section of its fee
schedule to: (i) Adopt User fees, an Enterprise fee, and a Digital
Media Enterprise fee for the BZX Top and BZX Last Sale feeds; and (ii)
make a non-substantive change to the description of the BATS One Feed
Enterprise Fee as well as correct a cross-reference within the
definition of ``Non-Professional User''.
BZX Top and Last Sale Fees
BZX Top is a market data feed that includes top of book quotations
and execution information for all equity securities traded on the
Exchange.\5\ BZX Last Sale is a market data feed that includes last
sale information for all equity securities traded on Exchange.\6\
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\5\ See Exchange Rule 11.22(d).
\6\ See Exchange Rule 11.22(g).
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Currently, the Exchange only charges fees for both internal and
external distribution of the BZX Last Sale and BZX Top feeds. The cost
of BZX Last Sale for an Internal Distributor \7\ is $500 per month.
Likewise, the cost of BZX Top for an Internal Distributor is also $500
per month. The Exchange currently does not charge per User \8\ fees for
either BZX Last Sale or BZX Top. Therefore, the Exchange does not
currently require an External Distributor \9\ of BZX Last Sale or BZX
Top to count, classify (e.g., professional or non-professional), or
report to the Exchange information regarding the customers to which
they provide the data. Instead, the Exchange charges an External
Distributor of BZX Last Sale a flat fee of $2,500 per month. The
Exchange also separately charges an External Distributor of BZX Top a
flat fee of $2,500 per month. End Users currently do not pay the
Exchange for BZX Last Sale or BZX Top, nor are End Users required to
enter into contracts with the Exchange.
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\7\ An ``Internal Distributor'' is defined as ``a Distributor
that receives the Exchange Market Data product and then distributes
that data to one or more Users within the Distributor's own
entity.'' See the Exchange Fee Schedule available at https://batstrading.com/support/fee_schedule/bzx/. A ``Distributor'' is
defined as ``any entity that receives the Exchange Market Data
product directly from the Exchange or indirectly through another
entity and then distributes it internally or externally to a third
party.'' Id.
\8\ A ``User'' is defined as ``a natural person, a
proprietorship, corporation, partnership, or entity, or device
(computer or other automated service), that is entitled to receive
Exchange data.'' Id.
\9\ An ``External Distributor'' is defined as ``a Distributor
that receives the Exchange Market Data product and then distributes
that data to a third party or one or more Users outside the
Distributor's own entity.'' Id.
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Subscribers to either BZX Top or BZX Last Sale are able to receive,
upon request and at no additional cost, BZX Last Sale or BZX Top, as
applicable. The Exchange also offers a New External Distributor Credit
under which new External Distributors of BZX Top or BZX Last Sale will
not be charged a Distributor Fee for their first three (3) months.
The Exchange now proposes to amend its fee schedule to incorporate
additional fees related to the BZX Top or BZX Last Sale feeds.\10\
These fees include the following, each of which are described in detail
below: (i) Usage Fees for both Professional \11\ and Non-Professional
\12\ Users; \13\ (ii) Enterprise Fees; \14\ and (iii) a Digital Media
Enterprise Fee.
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\10\ The Exchange notes that EDGA Exchange, Inc. (``EDGA''),
EDGX Exchange, Inc. (``EDGX'') and BATS Y-Exchange, Inc. (``BYX'',
together with the Exchange, EDGA and EDGX, the ``BATS Exchanges'')
also filed proposed rule changes with Commission to adopt similar
fees for their respective Top and Last Sale market data product. See
File Nos. SR-EDGA-2015-25, SR-EDGX-2015-28, and SR-BYX-2015-30. The
Exchange represents that the proposed fees will not cause the
combined cost of subscribing to each of the BATS Exchanges'
individual Top and Last Sale feeds to be greater than those
currently charged to subscribe to the BATS One Feed. See Securities
Exchange Act Release Nos. 74285 (February 18, 2015), 80 FR 9828
(February 24, 2015) (SR-BATS-2015-11); 74283 (February 18, 2015), 80
FR 9809 (February 24, 2015) (SR-EDGA-2015-09); 74282 (February 17,
2015), 80 FR 9487 (February 23, 2015) (SR-EDGX-2015-09); and 74284
(February 18, 2015), 80 FR 9792 (February 24, 2015) (SR-BYX-2015-09)
(``Initial BATS One Feed Fee Filings''). In these filings, the
Exchange represented that the cost of subscribing to each of the
underlying individual feeds necessary to create the BATS One Feed
would not be greater than the cost of subscribing to the BATS One
Feed. Id.
\11\ A ``Professional User'' is defined as ``any User other than
a Non-Professional User.'' See the Exchange Fee Schedule available
at https://batstrading.com/support/fee_schedule/bzx/.
\12\ A ``Non-Professional User'' is defined as ``a natural
person who is not: (i) Registered or qualified in any capacity with
the Commission, the Commodity Futures Trading Commission, any state
securities agency, any securities exchange or association, or any
commodities or futures contract market or association; (ii) engaged
as an ``investment adviser'' as that term is defined in Section
[202(a)(11)] of the Investment Advisers Act of 1940 (whether or not
registered or qualified under that Act); or (iii) employed by a bank
or other organization exempt from registration under federal or
state securities laws to perform functions that would require
registration or qualification if such functions were performed for
an organization not so exempt.'' Id.
\13\ The Exchange notes that User fees as well as the
distinctions based on professional and non-professional users have
been previously filed with or approved by the Commission by the BATS
Exchanges and the Nasdaq Stock Market LLC (``Nasdaq''). See
Securities Exchange Act Release No. 59582 (March 16, 2009), 74 FR
12423 (March 24, 2009) (Order approving SR-Nasdaq-2008-102). See
also the Initial BATS One Feed Fee Filings, supra note 11 [sic].
\14\ The Exchange notes that Enterprise fees have been
previously filed with or approved by the Commission by the Exchange,
EDGA, EDGX, BYX, Nasdaq, NYSE, and the CTA/CQ Plans. See Nasdaq Rule
7047. Securities Exchange Act Release Nos. 71507 (February 7, 2014),
79 FR 8763 (February 13, 2014) (SR-NASDAQ-2014-011); 70211 (August
15, 2013), 78 FR 51781 (August 21, 2013) (SR-NYSE-2013-58); and
70010 (July 19, 2013) (File No. SR-CTA/CQ-2013-04). See also the
Initial BATS One Feed Fee Filings, supra note 11 [sic].
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User Fees. The Exchange proposes to charge those who receive either
BZX Top or BZX Last Sale from External Distributors different fees for
both their Professional Users and Non-Professional Users. The Exchange
will assess a monthly fee for Professional Users of $4.00 per User.
Non-Professional Users will be assessed a monthly fee of $0.10 per
User.\15\ The Exchange does not

[[Page 41524]]

propose to charge per User fees to Internal Distributors.
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\15\ The Exchange notes that EDGA, EDGX and BYX also filed
proposed rule changes with Commission to adopt User fees for their
respective Top and Last Sale market data product. See File Nos. SR-
EDGA-2015-25, SR-EDGX-2015-28 and SR-BYX-2015-30 (proposing a
monthly fee of $2.00 per Professional User and of $0.05 per Non-
Professional User). A vendor that wishes to create a product like
the BATS One Summary Feed could subscribe to each of the BATS
Exchanges' Top and Last Sale feeds. See the Initial BATS One Feed
Fee Filings, supra note 11 [sic]. Should a vendor subscribe to each
of the BATS Exchanges' Top and Last Sale feeds, it would be charged
a total of $10.00 per month per Professional User and $0.25 per
month per Non-Professional User. This amount is equal to, and not
greater than the User Fees charged for the BATS One Summary Feed.
Id. (adopting fees of $10.00 per month per Professional User and
$0.25 per month per Non-Professional User as well as a separate
$1,000 per month Data Consolidation Fee for the BATS One Summary
Feed).
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External Distributors would be required to count every Professional
User and Non-Professional User to which they provide BZX Top and/or BZX
Last Sale, the requirements for which are identical to that currently
in place for the BATS One Feed.\16\ Thus, the External Distributor's
count will include every person and device that accesses the data
regardless of the purpose for which the individual or device uses the
data. External Distributors must report all Professional and Non-
Professional Users in accordance with the following:
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\16\ See the Initial BATS One Feed Fee Filings, supra note 11
[sic].
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In connection with an External Distributor's distribution
of BZX Top or BZX Last Sale, the Distributor should count as one User
each unique User that the Distributor has entitled to have access to
BZX Top or BZX Last Sale. However, where a device is dedicated
specifically to a single individual, the Distributor should count only
the individual and need not count the device.
The External Distributor should identify and report each
unique User. If a User uses the same unique method to gain access to
BZX Top or BZX Last Sale, the Distributor should count that as one
User. However, if a unique User uses multiple methods to gain access to
BZX Top or BZX Last Sale (e.g., a single User has multiple passwords
and user identifications), the External Distributor should report all
of those methods as an individual User.
External Distributors should report each unique individual
person who receives access through multiple devices as one User so long
as each device is dedicated specifically to that individual.
If an External Distributor entitles one or more
individuals to use the same device, the External Distributor should
include only the individuals, and not the device, in the count.
Each External Distributor will receive a credit against its monthly
Distributor Fee for BZX Top or BZX Last Sale equal to the amount of its
monthly Usage Fees up to a maximum of the Distributor Fee for BZX Top
or BZX Last Sale. For example, an External Distributor will be subject
to a $2,500 monthly Distributor Fee where they elect to receive BZX
Top. If that External Distributor reports User quantities totaling
$2,500 or more of monthly usage of BZX Top, it will pay no net
Distributor Fee, whereas if that same External Distributor were to
report User quantities totaling $1,500 of monthly usage, it will pay a
net of $1,000 for the Distributor Fee. External Distributors will
remain subject to the per User fees discussed above. The same would
apply to receipt of BZX Last Sale.
Enterprise Fee. The Exchange also proposes to establish a $15,000
per month Enterprise Fee that will permit a recipient firm who receives
BZX Top or BZX Last Sale from an External Distributor to receive the
data for an unlimited number of Professional and Non-Professional
Users.\17\ For example, if a recipient firm had 15,000 Professional
Users who each receive BZX Top or BZX Last Sale at $4.00 per month,
then that recipient firm will pay $60,000 per month in Professional
Users fees. Under the proposed Enterprise Fee, the recipient firm will
pay a flat fee of $15,000 for an unlimited number of Professional and
Non-Professional Users for BZX Top or BZX Last Sale. A recipient firm
must pay a separate Enterprise Fee for each External Distributor that
controls display of BZX Top or BZX Last Sale if it wishes such User to
be covered by an Enterprise Fee rather than by per User fees. A
recipient firm that pays the Enterprise Fee will not have to report its
number of such Users on a monthly basis. However, every six months, a
recipient firm must provide the Exchange with a count of the total
number of natural person users of each product, including both
Professional and Non-Professional Users. Lastly, the proposed
Enterprise Fee would be counted towards the Distributor Fee credit
described above, under which an External Distributor receives a credit
towards its Distributor Fee equal to the amount of its monthly BZX Top
or BZX Last Sale usage fees.
---------------------------------------------------------------------------

\17\ The Exchange notes that EDGA, EDGX and BYX also filed
proposed rule changes with Commission to adopt Enterprise Fees for
their respective Top and Last Sale market data product. See File
Nos. SR-EDGA-2015-25, SR-EDGX-2015-28 and SR-BYX-2015-30 (proposing
a monthly Enterprise Fee of $15,000 for EDGX Top and EDGX Last Sale
and $10,000 for EDGA Top and Last Sale as well as BYX Top and Last
Sale). A vendor that wishes to create a product like the BATS One
Summary Feed could subscribe to each of the BATS Exchanges' Top and
Last Sale feeds. See the Initial BATS One Feed Fee Filings, supra
note 11 [sic]. Should a vendor subscribe to each of the BATS
Exchanges' Top and Last Sale feeds, it would be charged a total
monthly Enterprise Fee of $50,000. This amount is equal to, and not
greater than the Enterprise Fee charged for the BATS One Summary
Feed. Id. (adopting a monthly Enterprise Fee of $50,000 as well as a
separate $1,000 per month Data Consolidation Fee for the BATS One
Summary Feed).
---------------------------------------------------------------------------

Digital Media Enterprise Fee. The Exchange proposes to adopt a
Digital Media Enterprise Fee of $2,500 per month for BZX Top and BZX
Last Sale.\18\ As an alternative to proposed User fees discussed above,
a recipient firm may purchase a monthly Digital Media Enterprise
license to receive BZX Top and BZX Last Sale from an External
Distributor to distribute to an unlimited number of Professional and
Non-Professional Users for viewing via television, Web sites, and
mobile devices for informational and non-trading purposes only without
having to account for the extent of access to the data or the report
the number of Users to the Exchange. Lastly, the proposed Digital Media
Enterprise Fee would be counted towards the Distributor Fee credit
described above, under which an External Distributor receives a credit
towards its Distributor Fee equal to the amount of its monthly BZX Top
and/or BZX Last Sale usage fees.
---------------------------------------------------------------------------

\18\ The Exchange notes that EDGA, EDGX and BYX also filed
proposed rule changes with Commission to adopt a Digital Media
Enterprise Fee for their respective Top and Last Sale market data
product. See File Nos. SR-EDGA-2015-25, SR-EDGX-2015-28 and SR-BYX-
2015-30 (proposing a monthly Digital Media Enterprise Fee of $2,500
for their respective Top and Last Sale feeds). A vendor that wishes
to create a product like the BATS One Summary Feed could subscribe
to each of the BATS Exchanges' Top and Last Sale feeds. See the
Initial BATS One Feed Fee Filings, supra note 11 [sic]. Should a
vendor subscribe to each of the BATS Exchanges' Top and Last Sale
feeds, it would be charged a total monthly Digital Media Enterprise
Fee of $10,000. This amount is less than the Digital Media
Enterprise Fee charged for the BATS One Summary Feed. See Securities
Exchange Act Release Nos. 74598 (March 27, 2015), 80 FR 17791 (April
2, 2015) (SR-BATS-2015-24); 74599 (March 27, 2015), 80 FR 17812
(April 2, 2015) (SR-BYX-2015-19); 74600 (March 27, 2014), 80 FR
17797 (April 2, 2015) (SR-EDGA-2015-14); and 74601 (March 27, 2015),
80 FR 17804 (April 2, 2015) (SR-EDGX-2015-14) (adopting a monthly
Digital Media Enterprise Fee of $15,000 for the BATS One Summary
Feed).
---------------------------------------------------------------------------

Non-Substantive, Corrective Changes
The Exchange proposes to make a non-substantive change to the
description of the BATS One Feed Enterprise Fee as well as correct a
cross-reference within the definition of ``Non-Professional User''.
First, the proposed change to the description of the BATS One Feed
\19\

[[Page 41525]]

Enterprise Fee is intended to align with the descriptions of the
Enterprise Fees for BZX Top and BZX Last Sale proposed above. The fee
schedule currently states that:
---------------------------------------------------------------------------

\19\ In sum, the BATS One Feed is a data feed that disseminates,
on a real-time basis, the aggregate best bid and offer (``BBO'') of
all displayed orders for securities traded on BZX and its affiliated
exchanges and for which the BATS Exchanges report quotes under the
Consolidated Tape Association (``CTA'') Plan or the Nasdaq/UTP Plan.
The BATS One Feed also contains the individual last sale information
for the BATS Exchanges (collectively with the aggregate BBO, the
``BATS One Summary Feed''). In addition, the BATS One Feed contains
optional functionality which enables recipients to receive
aggregated two-sided quotations from the BATS Exchanges for up to
five (5) price levels (``BATS One Premium Feed''). See Securities
Exchange Act Release No. 73918 (December 23, 2014), 79 FR 78920
(December 31, 2014) (File Nos. SR-EDGX-2014-25; SR-EDGA-2014-25; SR-
BATS-2014-055; SR-BYX-2014-030) (Notice of Amendments No. 2 and
Order Granting Accelerated Approval to Proposed Rule Changes, as
Modified by Amendments Nos. 1 and 2, to Establish a New Market Data
Product called the BATS One Feed) (``BATS One Approval Order'').

[a]s an alternative to User fees, a recipient firm may purchase a
monthly Enterprise license to receive the BATS One Feed from an
External Distributor to an unlimited number of Professional and Non-
Professional Users. A recipient firm must pay a separate Enterprise
Fee for each External Distributor that controls the display of the
BATS One Feed if it wishes such User to be covered by the Enterprise
---------------------------------------------------------------------------
Fee. The Enterprise Fee is in addition to the Distributor Fee.

The Exchange proposes to delete the last sentence of the above
description stating that the Enterprise Fee is in addition to the
Distributor Fee. The original purpose of this sentence was to clarify
that the Distributor Fee and Enterprise Fee were separate fees.
However, the Exchange understands that this sentence has led to
confusion for the following reason. As is the case for the proposed
Enterprise Fees for BZX Top and BZX Last Sale described above, the BATS
One Feed Enterprise Fee is counted towards the Distributor Fee credit,
under which an External Distributor receives a credit towards its
Distributor Fee equal to the amount of its monthly BATS One Feed Usage
Fees. Stating that the Enterprise and Distributor fees were separate
fees has caused confusion regarding the application of the Distributor
Fee Usage Fee credit. Therefore, the Exchange proposes to delete the
last sentence stating that the Enterprise Fee is in addition to the
Distributor Fee. Deleting this sentence does not alter the manner in
which the Enterprise Fee is charged. Rather, it is intended to avoid
confusion and align the description with that of the proposed
Enterprise Fees for BZX Top and BZX Last Sale described above.
Second, the Exchange proposes to correct a cross-reference within
the definition of ``Non-Professional User''. In part, a ``Non-
Professional User'' is currently defined as ``a natural person who is
not: . . . engaged as an ``investment adviser'' as that term is defined
in Section 201(11) of the Investment Advisers Act of 1940 (whether or
not registered or qualified under that Act) . . .'' The definition
incorrectly states that the term ``investment adviser is defined under
Section 201(11) of the Investment Advisers Act of 1940, when it is, in
fact, defined under Section 202(a)(11) of the Investment Advisers Act
of 1940. Therefore, the Exchange proposes to replace the reference to
Section 201(11) with Section 202(a)(11) within the definition of Non-
Professional User.
Implementation Date
The Exchange proposes to implement the proposed changes to its fee
schedule on July 1, 2015.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the objectives of Section 6 of the Act,\20\ in general, and
furthers the objectives of Section 6(b)(4),\21\ in particular, as it is
designed to provide for the equitable allocation of reasonable dues,
fees and other charges among its members and other recipients of
Exchange data. The Exchange believes that the proposed rates are
equitable and non-discriminatory in that they apply uniformly to all
recipients of Exchange data. The Exchange believes the proposed fees
are competitive with those charged by other venues and, therefore,
reasonable and equitably allocated to recipients. Lastly, the Exchange
also believes that the proposed fees are reasonable and non-
discriminatory because they will apply uniformly to all recipients of
Exchange data.
---------------------------------------------------------------------------

\20\ 15 U.S.C. 78f.
\21\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

The Exchange also believes that the proposed rule change is
consistent with Section 11(A) of the Act \22\ in that it supports (i)
fair competition among brokers and dealers, among exchange markets, and
between exchange markets and markets other than exchange markets and
(ii) the availability to brokers, dealers, and investors of information
with respect to quotations for and transactions in securities.
Furthermore, the proposed rule change is consistent with Rule 603 of
Regulation NMS,\23\ which provides that any national securities
exchange that distributes information with respect to quotations for or
transactions in an NMS stock do so on terms that are not unreasonably
discriminatory. In adopting Regulation NMS, the Commission granted
self-regulatory organizations and broker-dealers increased authority
and flexibility to offer new and unique market data to the public. It
was believed that this authority would expand the amount of data
available to consumers, and also spur innovation and competition for
the provision of market data.
---------------------------------------------------------------------------

\22\ 15 U.S.C. 78k-1.
\23\ See 17 CFR 242.603.
---------------------------------------------------------------------------

In addition, the proposed fees would not permit unfair
discrimination because all of the Exchange's customers and market data
vendors will be subject to the proposed fees on an equivalent basis.
BZX Last Sale and BZX Top are distributed and purchased on a voluntary
basis, in that neither the Exchange nor market data distributors are
required by any rule or regulation to make this data available.
Accordingly, Distributors and Users can discontinue use at any time and
for any reason, including due to an assessment of the reasonableness of
fees charged. Firms have a wide variety of alternative market data
products from which to choose, such as similar proprietary data
products offered by other exchanges and consolidated data. Moreover,
the Exchange is not required to make any proprietary data products
available or to offer any specific pricing alternatives to any
customers.
In addition, the fees that are the subject of this rule filing are
constrained by competition. As explained below in the Exchange's
Statement on Burden on Competition, the existence of alternatives to
BZX Top and BZX Last Sale further ensures that the Exchange cannot set
unreasonable fees, or fees that are unreasonably discriminatory, when
vendors and subscribers can elect such alternatives. That is, the
Exchange competes with other exchanges (and their affiliates) that
provide similar market data products. If another exchange (or its
affiliate) were to charge less to consolidate and distribute its
similar product than the Exchange charges to consolidate and distribute
BZX Top or BZX Last Sale, prospective Users likely would not subscribe
to, or would cease subscribing to, the BZX Top or BZX Last Sale.
The Exchange notes that the Commission is not required to undertake
a cost-of-service or rate-making approach. The Exchange believes that,
even if it were possible as a matter of economic theory, cost-based
pricing for non-core market data would

[[Page 41526]]

be so complicated that it could not be done practically.\24\
---------------------------------------------------------------------------

\24\ The Exchange believes that cost-based pricing would be
impractical because it would create enormous administrative burdens
for all parties, including the Commission, to cost-regulate a large
number of participants and standardize and analyze extraordinary
amounts of information, accounts, and reports. In addition, it is
impossible to regulate market data prices in isolation from prices
charged by markets for other services that are joint products. Cost-
based rate regulation would also lead to litigation and may distort
incentives, including those to minimize costs and to innovate,
leading to further waste. Under cost-based pricing, the Commission
would be burdened with determining a fair rate of return, and the
industry could experience frequent rate increases based on
escalating expense levels. Even in industries historically subject
to utility regulation, cost-based ratemaking has been discredited.
As such, the Exchange believes that cost-based ratemaking would be
inappropriate for proprietary market data and inconsistent with
Congress's direction that the Commission use its authority to foster
the development of the national market system, and that market
forces will continue to provide appropriate pricing discipline. See
Appendix C to NYSE's comments to the Commission's 2000 Concept
Release on the Regulation of Market Information Fees and Revenues,
which can be found on the Commission's Web site at https://www.sec.gov/rules/concept/s72899/buck1.htm. See also Securities
Exchange Act Release No. 73816 (December 11, 2014), 79 FR 75200
(December 17, 2014) (SR-NYSE-2014-64) (Notice of Filing and
Immediate Effectiveness of Proposed Rule Change to Establish an
Access Fee for the NYSE Best Quote and Trades Data Feed, Operative
December 1, 2014).
---------------------------------------------------------------------------

User Fees. The Exchange believes that implementing the Professional
and Non-Professional User fees for BZX Top and BZX Last Sale is
equitable and reasonable because it will result in greater availability
to Professional and Non-Professional Users. Moreover, introducing a
modest Non-Professional User fee for BZX Top and BZX Last Sale is
reasonable because it provides an additional method for retail
investors to access BZX Top and BZX Last Sale data by providing the
same data that is available to Professional Users. The Exchange
believes that the proposed fees are equitable and not unfairly
discriminatory because they will be charged uniformly to recipient
firms and Users. The fee structure of differentiated Professional and
Non-Professional fees is utilized by the Exchange for the BATS One Feed
and has long been used by other exchanges for their proprietary data
products, and by the Nasdaq UTP and the CTA and CQ Plans in order to
reduce the price of data to retail investors and make it more broadly
available.\25\ Offering BZX Top and BZX Last Sale to Non-Professional
Users with the same data available to Professional Users results in
greater equity among data recipients.
---------------------------------------------------------------------------

\25\ See the Initial BATS One Feed Fee Filings, supra note 11
[sic]. See also, e.g., Securities Exchange Act Release No. 20002,
File No. S7-433 (July 22, 1983) (establishing nonprofessional fees
for CTA data); Nasdaq Rules 7023(b), 7047.
---------------------------------------------------------------------------

In addition, the proposed fees are reasonable when compared to
similar fees for comparable products offered by the NYSE. Specifically,
NYSE offers NYSE BBO, which includes best bid and offer for NYSE traded
securities, for a monthly fee of $4.00 per professional subscriber and
$0.20 per non-professional subscriber.\26\ NYSE also offers NYSE
Trades, which is a data feed that provides the last sale information
for NYSE traded securities, for the same price as NYSE BBO. The
Exchange's proposed per User Fees for BZX Top and BZX Last Sale are
comparable with the NYSE's fees for NYSE Trades and NYSE BBO.
---------------------------------------------------------------------------

\26\ See NYSE Market Data Pricing dated May 2015 available at
https://www.nyxdata.com/.
---------------------------------------------------------------------------

Enterprise Fee. The proposed Enterprise Fee for BZX Top and BZX
Last Sale are equitable and reasonable as the fees proposed are less
than the enterprise fees currently charged for NYSE Trades and NYSE
BBO. The NYSE charges a separate enterprise fee of $190,000 per month
for NYSE Trades and NYSE BBO.\27\ In addition, the Enterprise Fee
proposed by the Exchange could result in a fee reduction for recipient
firms with a large number of Professional and Non-Professional Users.
If a recipient firm has a smaller number of Professional Users of BZX
Top or BZX Last Sale, then it may continue using the per User structure
and benefit from the per User Fee reductions. By reducing prices for
recipient firms with a large number of Professional and Non-
Professional Users, the Exchange believes that more firms may choose to
receive and to distribute the BZX Top or BZX Last Sale, thereby
expanding the distribution of this market data for the benefit of
investors.
---------------------------------------------------------------------------

\27\ Id.
---------------------------------------------------------------------------

The Exchange further believes that the proposed Enterprise Fee is
reasonable because it will simplify reporting for certain recipients
that have large numbers of Professional and Non-Professional Users.
Firms that pay the proposed Enterprise Fee will not have to report the
number of Users on a monthly basis as they currently do, but rather
will only have to count natural person users every six months, which is
a significant reduction in administrative burden. Finally, the Exchange
believes that it is equitable and not unfairly discriminatory to
establish an Enterprise Fee because it reduces the Exchange's costs and
the Distributor's administrative burdens in tracking and auditing large
numbers of Users.
Digital Media Enterprise Fee. The Exchange believes that the
proposed Digital Media Enterprise Fee for BZX Top and BZX Last Sale
provides for an equitable allocation of reasonable fees among
recipients of the data and is not designed to permit unfair
discrimination among customers, brokers, or dealers. In establishing
the Digital Media Enterprise Fee, the Exchange recognizes that there is
demand for a more seamless and easier-to-administer data distribution
model that takes into account the expanded variety of media and
communication devices that investors utilize today. The Exchange
believes the Digital Media Enterprise Fee will be easy to administer
because data recipients that purchase it would not be required to
differentiate between Professional and Non-Professional Users, account
for the extent of access to the data, or report the number of Users.
This is a significant reduction on a recipient firm's administrative
burdens and is a significant value to investors. For example, a
television broadcaster could display BZX Top and/or BZX Last Sale data
during market-related programming and on its Web site or allow viewers
to view the data via their mobile devices, creating a more seamless
distribution model that will allow investors more choice in how they
receive and view market data, all without having to account for and/or
measure who accesses the data and how often they do so.
The proposed Digital Media Enterprise Fee is equitable and
reasonable because it will also enable recipient firms to more widely
distribute data from BZX Top and BZX Last Sale to investors for
informational purposes at a lower cost than is available today. For
example, a recipient firm may purchase an Enterprise license in the
amount of $15,000 per month for to receive BZX Top and/or BZX Last Sale
from an External Distributor for an unlimited number of Professional
and Non-Professional Users, which is greater than the proposed Digital
Media Enterprise Fee. The Exchange also believes the amount of the
Digital Media Enterprise Fee is reasonable as compared to the existing
enterprise fees discussed above because the distribution of BZX Top and
BZX Last Sale data is limited to television, Web sites, and mobile
devices for informational purposes only, while distribution of BZX Top
and BZX Last Sale data pursuant to an Enterprise license contains no
such limitation. The Exchange also believes that the proposed Digital
Media Enterprise Fee

[[Page 41527]]

is equitable and reasonable because it is less than similar fees
charged by other exchanges.\28\
---------------------------------------------------------------------------

\28\ The Nasdaq Stock Market offers proprietary data products
for distribution over the internet and television under alternative
fee schedules that are subject to maximum fee of $50,000 per month.
See Nasdaq Rule 7039(b). The NYSE charges a Digit Media Enterprise
fee of $40,000 per month for the NYSE Trade Digital Media product.
See Securities Exchange Act Release No. 69272 (April 2, 2013), 78 FR
20983 (April 8, 2013) (SR-NYSE-2013-23).
---------------------------------------------------------------------------

Non-Substantive, Corrective Changes. The Exchange believes that the
proposed non-substantive, corrective changes are consistent with
Section 6(b) of the Act,\29\ in general, and Section 6(b)(4) of the
Act,\30\ in particular, in that they provide for an equitable
allocation of reasonable fees among recipients of the data and is not
designed to permit unfair discrimination among customers, brokers, or
dealers. These proposed changes are equitable and reasonable because
the changes are designed to clarify the fee schedule and avoid
potential investor confusion. The amendment to the BATS One Enterprise
Fee is also intended to align the description with that of the proposed
Enterprise Fees for BZX Top and BZX Last Sale described above. The
proposed changes are also non-discriminatory as they would apply to all
recipient firms uniformly.
---------------------------------------------------------------------------

\29\ 15 U.S.C. 78f.
\30\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended.
BZX Top and BZX Last Sale
The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended. The
Exchange's ability to price BZX Last Sale and BZX Top are constrained
by: (i) Competition among exchanges, other trading platforms, and Trade
Reporting Facilities (``TRF'') that compete with each other in a
variety of dimensions; (ii) the existence of inexpensive real-time
consolidated data and market-specific data and free delayed data; and
(iii) the inherent contestability of the market for proprietary data.
The Exchange and its market data products are subject to
significant competitive forces and the proposed fees represent
responses to that competition. To start, the Exchange competes
intensely for order flow. It competes with the other national
securities exchanges that currently trade equities, with electronic
communication networks, with quotes posted in FINRA's Alternative
Display Facility, with alternative trading systems, and with securities
firms that primarily trade as principal with their customer order flow.
In addition, BZX Last Sale and BZX Top compete with a number of
alternative products. For instance, BZX Last Sale and BZX Top do not
provide a complete picture of all trading activity in a security.
Rather, the other national securities exchanges, the several TRFs of
FINRA, and Electronic Communication Networks (``ECN'') that produce
proprietary data all produce trades and trade reports. Each is
currently permitted to produce last sale information products, and many
currently do, including Nasdaq and NYSE. In addition, market
participants can gain access to BZX last sale prices and top-of-book
quotations, though integrated with the prices of other markets, on
feeds made available through the SIPs.
In sum, the availability of a variety of alternative sources of
information imposes significant competitive pressures on Exchange data
products and the Exchange's compelling need to attract order flow
imposes significant competitive pressure on the Exchange to act
equitably, fairly, and reasonably in setting the proposed data product
fees. The proposed data product fees are, in part, responses to that
pressure. The Exchange believes that the proposed fees would reflect an
equitable allocation of its overall costs to users of its facilities.
In addition, when establishing the proposed fees, the Exchange
considered the competitiveness of the market for proprietary data and
all of the implications of that competition. The Exchange believes that
it has considered all relevant factors and has not considered
irrelevant factors in order to establish fair, reasonable, and not
unreasonably discriminatory fees and an equitable allocation of fees
among all Users. The existence of alternatives to BZX Last Sale and BZX
Top, including existing similar feeds by other exchanges, consolidated
data, and proprietary data from other sources, ensures that the
Exchange cannot set unreasonable fees, or fees that are unreasonably
discriminatory, when vendors and subscribers can elect these
alternatives or choose not to purchase a specific proprietary data
product if its cost to purchase is not justified by the returns any
particular vendor or subscriber would achieve through the purchase.
Non-Substantive, Corrective Changes
The proposed non-substantive, corrective changes to the fee
schedule will not have any impact on completion. The proposed changes
are designed to clarify the fee schedule and avoid potential investor
confusion.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

The Exchange has neither solicited nor received written comments on
the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \31\ and paragraph (f) of Rule 19b-4
thereunder.\32\ At any time within 60 days of the filing of the
proposed rule change, the Commission summarily may temporarily suspend
such rule change if it appears to the Commission that such action is
necessary or appropriate in the public interest, for the protection of
investors, or otherwise in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

\31\ 15 U.S.C. 78s(b)(3)(A).
\32\ 17 CFR 240.19b-4(f).
---------------------------------------------------------------------------

IV. Solicitation of Comments

Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to rule-comments@sec.gov. Please include
File Number SR-BATS-2015-48 on the subject line.

Paper Comments

Send paper comments in triplicate to Brent J. Fields,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-BATS-2015-48. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements

[[Page 41528]]

with respect to the proposed rule change that are filed with the
Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for Web site viewing and printing in
the Commission's Public Reference Room, 100 F Street NE., Washington,
DC 20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of such filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-BATS-2015-48, and should be
submitted on or before August 5, 2015.

For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\33\
---------------------------------------------------------------------------

\33\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Brent J. Fields,
Secretary.
[FR Doc. 2015-17294 Filed 7-14-15; 8:45 am]
BILLING CODE 8011-01-P

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