Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; Notice of Filing of Amendment No. 3 to the Proposed Rule Change, and Order Granting Accelerated Approval of Proposed Rule Change as Amended, Relating to a Philadelphia Board of Trade Enterprise License Fee for Dissemination of Certain Market Data, 12242-12244 [E7-4722]

Download as PDF 12242 Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Notices the filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 10 and Rule 19b–4(f)(6) thereunder.11 At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate 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. A proposed rule change normally may not become operative prior to 30 days after the date of filing.12 However, Rule 19b–4(f)(iii) 13 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 requested that the Commission waive the 30-day operative delay. The Commission believes that waiver of the 30 day operative delay is consistent with the protection of investors and the public interest.14 The Commission notes that because there are no LPs presently listed on the NYSE Arca, there are no shareholders retroactively or currently impacted by the proposed rule change. Further, the proposed rule change will eliminate the competitive disadvantage to the NYSE Arca resulting from the present disparity in shareholder approval requirements between the NYSE Arca’s and Nasdaq’s treatment of LPs, while still retaining for NYSE Arca-listed LPs the provisions of the Exchange’s rules relating to shareholder approval of equity compensation plans.15 10 15 U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f)(6). 12 17 CFR 240.19b–4(f)(6)(iii). Rule 19b–4(f)(6)(iii) requires hat a self-regulatory organization submit to the Commission written notice of its intent to file the proposed rule change, along with a brief description and 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. The Exchange satisfied this requirement. 13 17 CFR 240.19b–4(f)(6)(iii). 14 For purposes only of waiving the 30-day operative delay, the Commission has considered the proposed rule’s on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 15 See NYSE Arca Rule 5.3(d)(1)–(7) (setting forth the Exchange’s rules with respect to shareholder approval of equity compensation plans). The proposed rule change would only eliminate the application of subparagraphs (8) through (11) to Rule 5.3(d) to limited partnerships. The Commission believes that it is desirable for the Exchange to have retained the requirements pertaining to shareholder approval of equity compensation plans for NYSEArca–listed limited partnerships. rmajette on PROD1PC67 with NOTICES 11 17 VerDate Aug<31>2005 14:20 Mar 14, 2007 Jkt 211001 IV. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, 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 e-mail to rulecomments@sec.gov. Please include File Number SR–NYSEArca–2007–21 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090. All submissions should refer to file Number SR–NYSEArca–2007–21. This file number should be included on the subject line if e-mail 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 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 inspection and copying in the Commission’s Public Reference Room. Copies of such filings will also 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–NYSEArca–2007–21 and should be submitted by April 5, 2007. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.16 Florence E. Harmon, Deputy Secretary. [FR Doc. E7–4692 Filed 3–14–07; 8:45 am] BILLING CODE 8010–01–P 16 17 PO 00000 CFR 200.30–3(a)(12). Frm 00079 Fmt 4703 Sfmt 4703 SECURITIES AND EXCHANGE COMMISSION [Release No. 34–55424; File No. SR–Phlx– 2006–63] Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; Notice of Filing of Amendment No. 3 to the Proposed Rule Change, and Order Granting Accelerated Approval of Proposed Rule Change as Amended, Relating to a Philadelphia Board of Trade Enterprise License Fee for Dissemination of Certain Market Data March 8, 2007. I. Introduction On September 28, 2006, the Philadelphia Stock Exchange, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposal to add an Enterprise License Fee of $10,000 per year or $850 per month that would be assessed by the Exchange’s wholly owned subsidiary, the Philadelphia Board of Trade (‘‘PBOT’’), on eligible market data vendors or subvendors (collectively ‘‘Vendors’’) for certain index values that subscribers receive over PBOT’s Market Data Distribution Network (‘‘MDDN’’). The Phlx filed Amendment No. 1 to the proposed rule change on November 1, 2006 and filed Amendment No. 2 on December 20, 2006. The proposed rule change, as amended, was published for comment in the Federal Register on December 28, 2006.3 The Phlx filed Amendment No. 3 to the proposed rule change on March 2, 2007.4 The Commission received no comments regarding the proposal. The Commission hereby issues notice of the filing of Amendment No. 3 and simultaneously grants accelerated approval to the proposed rule change as amended. II. Description of the Proposal The Phlx proposes to add an Enterprise License Fee for eligible Vendors of market data disseminated 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 54978 (December 20, 2006), 71 FR 78254. 4 In Amendment No. 3, Phlx clarified (1) in its fee schedule that a retail broker dealer is conducting a material portion of its business via one or more Internet Web sites if at least 20% of the brokerdealer’s business were conducted via the Internet; and (2) that the current and closing index values underlying all of Phlx’s proprietary indexes are being disseminated through PBOT. 2 17 E:\FR\FM\15MRN1.SGM 15MRN1 Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Notices rmajette on PROD1PC67 with NOTICES over PBOT’s MDDN.5 The Phlx has licensed the current and closing index values underlying all of the Phlx’s proprietary indexes to PBOT for the purpose of selling, reproducing, and distributing the index values over PBOT’s MDDN (‘‘Market Data’’). On each trading day, the Exchange or its third party designee calculates and makes available to PBOT a real-time index value every 15 seconds and a closing index value at the end of each trading day. In exchange for subscriber fees paid to PBOT, market data vendors are allowed to widely disseminate all the values of Phlx’s proprietary indexes to their subscribers.6 As approved by the Commission, PBOT charges the following subscriber fees to Vendors of Market Data for all the values of Phlx’s proprietary indexes disseminated by PBOT’s MDDN: 7 a monthly fee of: (a) $1.00 per ‘‘Device,’’ 8 that is used by Vendors and their subscribers to receive and re-transmit Market Data on a real-time basis (‘‘device fee’’), and (b) $.0025 per request for snapshot data,9 which is essentially Market Data that is refreshed no more frequently than once every 60 seconds, or $1,500 per month for unlimited snapshot data requests (‘‘snapshot fee’’).10 All market data vendors which provide market data to 200,000 or more Devices in any month qualify for a 15% Administrative Fee credit for that month, to be deducted from the monthly Subscriber Fees that they collect and are obligated to pay 5 The MDDN is an internet protocol multicast network developed by PBOT and SAVVIS Communications. 6 PBOT has contracted with one or more major Market Data Vendors to receive real-time and closing index values over the MDDN and promptly redistribute such values. 7 See Securities Exchange Act Release No. 53790 (May 11, 2006), 71 FR 28738 (May 17, 2006) (‘‘Original Approval Order’’). The subscriber fees are set out in agreements that PBOT executed with various market data vendors for the right to receive, store, and retransmit the current and closing index values transmitted over the MDDN. 8 The agreements provide that ‘‘Device’’ shall mean, in case of each Subscriber and in such Subscriber’s discretion, either any Terminal or any End User. A Subscriber’s Device may be exclusively Terminals, exclusively End Users or a combination of Terminals or End Users and shall be reported in a manner that is consistent with the way the Vendor identifies such Subscriber’s access to Vendor’s data. An ‘‘End User’’ is defined as an individual authorized or allowed by a Vendor to access and display real-time market data that is distributed by PBOT over the MDDN; and a ‘‘Terminal’’ is any type of equipment (fixed or portable) that accesses and displays such market data. 9 See Securities Exchange Act Release No. 55111 (January 16, 2007), 72 FR 3188 (January 24, 2007) (increasing the snapshot fee to $.0025 per request). 10 The index values may also be made available by Vendors on a delayed basis (i.e., no sooner than twenty minutes following receipt of the data by vendors) at no charge. VerDate Aug<31>2005 14:20 Mar 14, 2007 Jkt 211001 PBOT under the Vendor/Subvendor Agreement. The Exchange proposes to add an Enterprise License Fee of $10,000 per year or $850 per month that would be available to eligible Vendors as an alternative to the device fee or snapshot fee.11 A Vendor is eligible for the Enterprise License Fee if it is a firm acting as a retail broker-dealer conducting a material portion of its business via one or more proprietary Internet Web sites by which the firm distributes Market Data to predominately non-professional Market Data users with whom the firm has a brokerage relationship (‘‘Eligible Firm’’).12 An Eligible Firm may also distribute Market Data to professional users with whom such firm has a brokerage relationship, provided such Market Data distribution is predominantly to non-professional users.13 As stated in the proposed fee schedule, the Eligible Firm’s Market Data distribution to professional users cannot exceed 10%.14 The 15% Administrative Fee credit discount also applies to the Enterprise License Fee. To be eligible for the Enterprise License Fee, an Eligible Firm must certify to PBOT that it qualifies for the Enterprise License Fee, including that market distribution is predominantly to non-professional users, and must immediately notify PBOT if it can no longer certify its qualification.15 11 A firm that qualifies for the Enterprise License Fee may instead choose to pay the device fee and/ or the snapshot fee as appropriate. 12 To be eligible for the Enterprise License Fee, the Exchange’s fee schedule states that an Eligible Firm will be considered to conduct a material portion of its business via one or more Internet Web sites if at least twenty percent (20%) of the firm’s business were conducted via the Internet. 13 A non-professional user is defined in the fee schedule as any natural person who is not: (a) registered or qualified in any capacity with the Commission, the Commodities Futures Trading Commission, any state securities agency, any securities exchange or association, or any commodities or futures contract market or association; (b) engaged as an ‘‘investment advisor’’ as that term is defined in Section 202(11) of the Investment Advisors Act of 1940, 15 U.S.C. 80b– 2(11), (whether or not registered or qualified under that Act); nor, (c) 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. 14 As an example, if data recipient ABC Corp. has 100 customers that receive PBOT Market Data of which 10 are professional users and 90 are retail (non-professional) users the Enterprise License Fee would be available to the firm because 10 professional users/100 total users = 10%. 15 A firm that has entered into an agreement with PBOT to receive Market Data over the MDDN but is not qualified for the Enterprise License Fee may pay the device fee and/or the snapshot fee as appropriate. PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 12243 III. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, 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 e-mail to rulecomments@sec.gov. Please include File No. SR–Phlx–2006–63 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–Phlx–2006–63. This file number should be included on the subject line if e-mail 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 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 inspection and copying in the Commission’s Public Reference Room. Copies of such filing also will be available for inspection and copying at the principal office of the Phlx. 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–Phlx–2006–63 and should be submitted on or before April 5, 2007. IV. Discussion After careful consideration, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to E:\FR\FM\15MRN1.SGM 15MRN1 12244 Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Notices a national securities exchange 16 and, in particular, the requirements of Section 6 of the Act.17 Specifically, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act,18 which requires, among other things, that the rules of a national securities exchange be designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Commission believes that the reduced alternate fee structure available through the Enterprise License Fee to eligible market data recipients should help to encourage a wider distribution of market data, especially to nonprofessional customers. The Commission notes that other industry organizations have similar fee structures which make various market data available to non-professional subscribers for a discounted fee relative to professional subscribers. For example, the Nasdaq Stock Market, Inc. (‘‘Nasdaq’’) has fees schedules that are higher for professional or corporate subscribers than for non-professional subscribers for UTP Level 1 fees, TotalView fees, and Nasdaq MAX fees.19 The Options Price Reporting Authority (‘‘OPRA’’), a national market system plan, also offers a reduced fee to nonprofessional subscribers, which is not available to professional options data subscribers.20 The Commission also believes that Phlx’s eligibility standards in determining the type of retail brokerdealers who can use the new Enterprise License Fee appears to be reasonably related to its purpose of providing a discount to those retail broker-dealers who have primarily a proprietary Internet based business to nonprofessional users.21 As noted above, rmajette on PROD1PC67 with NOTICES 16 In approving this proposed rule change, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 17 15 U.S.C. 78f. 18 15 U.S.C. 78f(b)(5). 19 Nasdaq offers a TotalView Non-Professional Enterprise Fee License to qualified firms that distribute TotalView to their non-professional users with whom they have a professional relationship. A description of Nasdaq market data fees is available at https://www.nasdaqtrader.com/trader/ mds/nasdaqother/pricing.stm (last visited on January 17, 2007). 20 A description of OPRA market data fees is available at https://www.opradata.com/pdf/ prof_pub_fee_schd_revised.pdf (last visited on January 17, 2007). 21 See supra notes 12–15 and accompanying text for eligibility standards for the Enterprise License Fee. VerDate Aug<31>2005 14:20 Mar 14, 2007 Jkt 211001 eligible firms are also free to pay, as an alternative, the device fee or snapshot fee should they so choose. Based on the above, the Commission believes that the proposal is consistent with Section 6(b)(4) of the Act,22 in that the proposed rule change provides for the equitable allocation of reasonable dues, fees, and other charges among the Exchange’s members and issuers and other persons using its facilities. The Commission also continues to believe that PBOT’s MDDN fee structure is consistent with Rule 603 under the Act 23 regarding the distribution, consolidation, and display of information with respect to quotations for and transactions in NMS stocks. The Commission finds good cause for approving Amendment No. 3 to the proposed rule change prior to the thirtieth day after the notice is published for comment in the Federal Register pursuant to Section 19(b)(2) of the Act.24 Amendment No. 3 clarifies the Exchange’s proposal and does not raise any new regulatory issues. Further, the materiality standard in the Eligible Firm definition drafted into the fee schedule pursuant to Amendment No. 3 was the same standard published for comment with the filing and no comments were received. Finally, the Commission believes that it is appropriate to accelerate approval of the proposed rule change so that the Exchange can immediately provide the discounted fee to eligible firms that will disseminate the index values of Phlx’s proprietary index options. Accordingly, the Commission finds good cause to approve Amendment No. 3 prior to the thirtieth day after the notice is published for comment in the Federal Register. V. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,25 that the proposed rule change (SR–Phlx–2006– 63), as amended, be, and it hereby is, approved on an accelerated basis. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.26 Florence E. Harmon, Deputy Secretary. [FR Doc. E7–4722 Filed 3–14–07; 8:45 am] BILLING CODE 8010–01–P 22 15 U.S.C. 78f(b)(4). CFR 242.603. 24 15 U.S.C. 78s(b)(2). 25 15 U.S.C. 78s(b)(2). 26 17 CFR 200.30–3(a)(12). 23 17 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 SOCIAL SECURITY ADMINISTRATION Agency Information Collection Activities: Proposed Request and Comment Request The Social Security Administration (SSA) publishes a list of information collection packages that will require clearance by the Office of Management and Budget (OMB) in compliance with Pub. L. 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. The information collection packages that may be included in this notice are for new information collections, approval of existing information collections, revisions to OMB-approved information collections, and extensions (no change) of OMBapproved information collections. SSA is soliciting comments on the accuracy of the agency’s burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and on ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Written comments and recommendations regarding the information collection(s) should be submitted to the OMB Desk Officer and the SSA Reports Clearance Officer. The information can be mailed, faxed or e-mailed to the individuals at the addresses and fax numbers listed below: (OMB), Office of Management and Budget, Attn: Desk Officer for SSA, Fax: 202–395–6974, E-mail address: OIRA_Submission@omb.eop.gov. (SSA), Social Security Administration, DCFAM, Attn: Reports Clearance Officer, 1333 Annex Building, 6401 Security Blvd., Baltimore, MD 21235, Fax: 410–965–6400, E-mail address: OPLM.RCO@ssa.gov. I. The information collections listed below are pending at SSA and will be submitted to OMB within 60 days from the date of this notice. Therefore, your comments should be submitted to SSA within 60 days from the date of this publication. You can obtain copies of the collection instruments by calling the SSA Reports Clearance Officer at 410– 965–0454 or by writing to the address listed above. 1. Work History Report—20 CFR 404.1512 and 416.912—0960–0578. The information collected by form SSA– 3369 is needed to determine disability by the State Disability Determination Services (DDS). The information will be used to document an individual’s past work history. The respondents are applicants for Supplemental Security E:\FR\FM\15MRN1.SGM 15MRN1

Agencies

[Federal Register Volume 72, Number 50 (Thursday, March 15, 2007)]
[Notices]
[Pages 12242-12244]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-4722]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55424; File No. SR-Phlx-2006-63]


Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; 
Notice of Filing of Amendment No. 3 to the Proposed Rule Change, and 
Order Granting Accelerated Approval of Proposed Rule Change as Amended, 
Relating to a Philadelphia Board of Trade Enterprise License Fee for 
Dissemination of Certain Market Data

March 8, 2007.

I. Introduction

    On September 28, 2006, the Philadelphia Stock Exchange, Inc. 
(``Phlx'' or ``Exchange'') filed with the Securities and Exchange 
Commission (``Commission''), pursuant to Section 19(b)(1) of the 
Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposal to add an Enterprise License Fee of $10,000 
per year or $850 per month that would be assessed by the Exchange's 
wholly owned subsidiary, the Philadelphia Board of Trade (``PBOT''), on 
eligible market data vendors or subvendors (collectively ``Vendors'') 
for certain index values that subscribers receive over PBOT's Market 
Data Distribution Network (``MDDN''). The Phlx filed Amendment No. 1 to 
the proposed rule change on November 1, 2006 and filed Amendment No. 2 
on December 20, 2006. The proposed rule change, as amended, was 
published for comment in the Federal Register on December 28, 2006.\3\ 
The Phlx filed Amendment No. 3 to the proposed rule change on March 2, 
2007.\4\ The Commission received no comments regarding the proposal. 
The Commission hereby issues notice of the filing of Amendment No. 3 
and simultaneously grants accelerated approval to the proposed rule 
change as amended.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 54978 (December 20, 
2006), 71 FR 78254.
    \4\ In Amendment No. 3, Phlx clarified (1) in its fee schedule 
that a retail broker dealer is conducting a material portion of its 
business via one or more Internet Web sites if at least 20% of the 
broker-dealer's business were conducted via the Internet; and (2) 
that the current and closing index values underlying all of Phlx's 
proprietary indexes are being disseminated through PBOT.
---------------------------------------------------------------------------

II. Description of the Proposal

    The Phlx proposes to add an Enterprise License Fee for eligible 
Vendors of market data disseminated

[[Page 12243]]

over PBOT's MDDN.\5\ The Phlx has licensed the current and closing 
index values underlying all of the Phlx's proprietary indexes to PBOT 
for the purpose of selling, reproducing, and distributing the index 
values over PBOT's MDDN (``Market Data''). On each trading day, the 
Exchange or its third party designee calculates and makes available to 
PBOT a real-time index value every 15 seconds and a closing index value 
at the end of each trading day. In exchange for subscriber fees paid to 
PBOT, market data vendors are allowed to widely disseminate all the 
values of Phlx's proprietary indexes to their subscribers.\6\
---------------------------------------------------------------------------

    \5\ The MDDN is an internet protocol multicast network developed 
by PBOT and SAVVIS Communications.
    \6\ PBOT has contracted with one or more major Market Data 
Vendors to receive real-time and closing index values over the MDDN 
and promptly redistribute such values.
---------------------------------------------------------------------------

    As approved by the Commission, PBOT charges the following 
subscriber fees to Vendors of Market Data for all the values of Phlx's 
proprietary indexes disseminated by PBOT's MDDN: \7\ a monthly fee of: 
(a) $1.00 per ``Device,'' \8\ that is used by Vendors and their 
subscribers to receive and re-transmit Market Data on a real-time basis 
(``device fee''), and (b) $.0025 per request for snapshot data,\9\ 
which is essentially Market Data that is refreshed no more frequently 
than once every 60 seconds, or $1,500 per month for unlimited snapshot 
data requests (``snapshot fee'').\10\ All market data vendors which 
provide market data to 200,000 or more Devices in any month qualify for 
a 15% Administrative Fee credit for that month, to be deducted from the 
monthly Subscriber Fees that they collect and are obligated to pay PBOT 
under the Vendor/Subvendor Agreement.
---------------------------------------------------------------------------

    \7\ See Securities Exchange Act Release No. 53790 (May 11, 
2006), 71 FR 28738 (May 17, 2006) (``Original Approval Order''). The 
subscriber fees are set out in agreements that PBOT executed with 
various market data vendors for the right to receive, store, and 
retransmit the current and closing index values transmitted over the 
MDDN.
    \8\ The agreements provide that ``Device'' shall mean, in case 
of each Subscriber and in such Subscriber's discretion, either any 
Terminal or any End User. A Subscriber's Device may be exclusively 
Terminals, exclusively End Users or a combination of Terminals or 
End Users and shall be reported in a manner that is consistent with 
the way the Vendor identifies such Subscriber's access to Vendor's 
data. An ``End User'' is defined as an individual authorized or 
allowed by a Vendor to access and display real-time market data that 
is distributed by PBOT over the MDDN; and a ``Terminal'' is any type 
of equipment (fixed or portable) that accesses and displays such 
market data.
    \9\ See Securities Exchange Act Release No. 55111 (January 16, 
2007), 72 FR 3188 (January 24, 2007) (increasing the snapshot fee to 
$.0025 per request).
    \10\ The index values may also be made available by Vendors on a 
delayed basis (i.e., no sooner than twenty minutes following receipt 
of the data by vendors) at no charge.
---------------------------------------------------------------------------

    The Exchange proposes to add an Enterprise License Fee of $10,000 
per year or $850 per month that would be available to eligible Vendors 
as an alternative to the device fee or snapshot fee.\11\ A Vendor is 
eligible for the Enterprise License Fee if it is a firm acting as a 
retail broker-dealer conducting a material portion of its business via 
one or more proprietary Internet Web sites by which the firm 
distributes Market Data to predominately non-professional Market Data 
users with whom the firm has a brokerage relationship (``Eligible 
Firm'').\12\ An Eligible Firm may also distribute Market Data to 
professional users with whom such firm has a brokerage relationship, 
provided such Market Data distribution is predominantly to non-
professional users.\13\ As stated in the proposed fee schedule, the 
Eligible Firm's Market Data distribution to professional users cannot 
exceed 10%.\14\ The 15% Administrative Fee credit discount also applies 
to the Enterprise License Fee.
---------------------------------------------------------------------------

    \11\ A firm that qualifies for the Enterprise License Fee may 
instead choose to pay the device fee and/or the snapshot fee as 
appropriate.
    \12\ To be eligible for the Enterprise License Fee, the 
Exchange's fee schedule states that an Eligible Firm will be 
considered to conduct a material portion of its business via one or 
more Internet Web sites if at least twenty percent (20%) of the 
firm's business were conducted via the Internet.
    \13\ A non-professional user is defined in the fee schedule as 
any natural person who is not: (a) registered or qualified in any 
capacity with the Commission, the Commodities Futures Trading 
Commission, any state securities agency, any securities exchange or 
association, or any commodities or futures contract market or 
association; (b) engaged as an ``investment advisor'' as that term 
is defined in Section 202(11) of the Investment Advisors Act of 
1940, 15 U.S.C. 80b-2(11), (whether or not registered or qualified 
under that Act); nor, (c) 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.
    \14\ As an example, if data recipient ABC Corp. has 100 
customers that receive PBOT Market Data of which 10 are professional 
users and 90 are retail (non-professional) users the Enterprise 
License Fee would be available to the firm because 10 professional 
users/100 total users = 10%.
---------------------------------------------------------------------------

    To be eligible for the Enterprise License Fee, an Eligible Firm 
must certify to PBOT that it qualifies for the Enterprise License Fee, 
including that market distribution is predominantly to non-professional 
users, and must immediately notify PBOT if it can no longer certify its 
qualification.\15\
---------------------------------------------------------------------------

    \15\ A firm that has entered into an agreement with PBOT to 
receive Market Data over the MDDN but is not qualified for the 
Enterprise License Fee may pay the device fee and/or the snapshot 
fee as appropriate.
---------------------------------------------------------------------------

III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change, as amended, 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 e-mail to rule-comments@sec.gov. Please include 
File No. SR-Phlx-2006-63 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, Station Place, 100 F 
Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-Phlx-2006-63. This file 
number should be included on the subject line if e-mail 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 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 inspection and 
copying in the Commission's Public Reference Room. Copies of such 
filing also will be available for inspection and copying at the 
principal office of the Phlx.
    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-Phlx-2006-63 
and should be submitted on or before April 5, 2007.

IV. Discussion

    After careful consideration, the Commission finds that the proposed 
rule change is consistent with the requirements of the Act and the 
rules and regulations thereunder applicable to

[[Page 12244]]

a national securities exchange \16\ and, in particular, the 
requirements of Section 6 of the Act.\17\ Specifically, the Commission 
finds that the proposed rule change is consistent with Section 6(b)(5) 
of the Act,\18\ which requires, among other things, that the rules of a 
national securities exchange be designed to promote just and equitable 
principles of trade, to remove impediments to and perfect the mechanism 
of a free and open market and a national market system, and, in 
general, to protect investors and the public interest.
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    \16\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. 15 U.S.C. 78c(f).
    \17\ 15 U.S.C. 78f.
    \18\ 15 U.S.C. 78f(b)(5).
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    The Commission believes that the reduced alternate fee structure 
available through the Enterprise License Fee to eligible market data 
recipients should help to encourage a wider distribution of market 
data, especially to non-professional customers. The Commission notes 
that other industry organizations have similar fee structures which 
make various market data available to non-professional subscribers for 
a discounted fee relative to professional subscribers. For example, the 
Nasdaq Stock Market, Inc. (``Nasdaq'') has fees schedules that are 
higher for professional or corporate subscribers than for non-
professional subscribers for UTP Level 1 fees, TotalView fees, and 
Nasdaq MAX fees.\19\ The Options Price Reporting Authority (``OPRA''), 
a national market system plan, also offers a reduced fee to 
nonprofessional subscribers, which is not available to professional 
options data subscribers.\20\
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    \19\ Nasdaq offers a TotalView Non-Professional Enterprise Fee 
License to qualified firms that distribute TotalView to their non-
professional users with whom they have a professional relationship. 
A description of Nasdaq market data fees is available at https://
www.nasdaqtrader.com/trader/mds/nasdaqother/pricing.stm (last 
visited on January 17, 2007).
    \20\ A description of OPRA market data fees is available at 
https://www.opradata.com/pdf/prof_pub_fee_schd_revised.pdf (last 
visited on January 17, 2007).
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    The Commission also believes that Phlx's eligibility standards in 
determining the type of retail broker-dealers who can use the new 
Enterprise License Fee appears to be reasonably related to its purpose 
of providing a discount to those retail broker-dealers who have 
primarily a proprietary Internet based business to non-professional 
users.\21\ As noted above, eligible firms are also free to pay, as an 
alternative, the device fee or snapshot fee should they so choose.
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    \21\ See supra notes 12-15 and accompanying text for eligibility 
standards for the Enterprise License Fee.
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    Based on the above, the Commission believes that the proposal is 
consistent with Section 6(b)(4) of the Act,\22\ in that the proposed 
rule change provides for the equitable allocation of reasonable dues, 
fees, and other charges among the Exchange's members and issuers and 
other persons using its facilities. The Commission also continues to 
believe that PBOT's MDDN fee structure is consistent with Rule 603 
under the Act \23\ regarding the distribution, consolidation, and 
display of information with respect to quotations for and transactions 
in NMS stocks.
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    \22\ 15 U.S.C. 78f(b)(4).
    \23\ 17 CFR 242.603.
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    The Commission finds good cause for approving Amendment No. 3 to 
the proposed rule change prior to the thirtieth day after the notice is 
published for comment in the Federal Register pursuant to Section 
19(b)(2) of the Act.\24\ Amendment No. 3 clarifies the Exchange's 
proposal and does not raise any new regulatory issues. Further, the 
materiality standard in the Eligible Firm definition drafted into the 
fee schedule pursuant to Amendment No. 3 was the same standard 
published for comment with the filing and no comments were received. 
Finally, the Commission believes that it is appropriate to accelerate 
approval of the proposed rule change so that the Exchange can 
immediately provide the discounted fee to eligible firms that will 
disseminate the index values of Phlx's proprietary index options. 
Accordingly, the Commission finds good cause to approve Amendment No. 3 
prior to the thirtieth day after the notice is published for comment in 
the Federal Register.
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    \24\ 15 U.S.C. 78s(b)(2).
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\25\ that the proposed rule change (SR-Phlx-2006-63), as amended, 
be, and it hereby is, approved on an accelerated basis.
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    \25\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\26\
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    \26\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-4722 Filed 3-14-07; 8:45 am]
BILLING CODE 8010-01-P
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