Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change to Reduce the Monthly Fee for NYSE Realtime Reference Prices, 52436-52438 [E8-20807]
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52436
Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Notices
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 if
consistent with the protection of
investors and the public interest, it has
become effective pursuant to section
19(b)(3)(A) of the Act15 and Rule 19b–
4(f)(6) thereunder.16
A proposed rule change filed under
Rule 19b–4(f)(6) normally may not
become operative prior to 30 days after
the date of filing.17 However, Rule 19b–
4(f)(6)(iii) permits the Commission to
designate a shorter time if such action
is consistent with the protection of
investors and the public interest.18 The
Exchange has requested that the
Commission waive the 5-day pre-filing
requirement and the 30-day operative
delay.19 The Commission believes that
waiving the 5-day pre-filing requirement
and the 30-day operative delay is
consistent with the protection of
investors and the public interest
because BSE has represented that the
Instruments of Accession will be
executed on August 29, 2008, and there
is no reason to delay implementation of
the changes to the BOX LLC Agreement
pursuant to the Instruments of
Accession. For these reasons, the
Commission designates the proposal to
be operative upon filing with the
Commission.20
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.21
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
15 15
U.S.C. 78s(b)(3)(A).
CFR 240.19b–4(f)(6).
17 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule
19b–4(f)(6)(iii) requires the self-regulatory
organization to give the Commission 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.
18 17 CFR 240.19b–4(f)(6)(iii).
19 See Email from Lisa J. Fall, General Counsel
and Corporate Secretary, BOX, to Molly Kim,
Special Counsel, Division of Trading and Markets,
Commission, on August 29, 2008.
20 For purposes only of waiving the 30-day
operative delay, the Commission has considered the
proposed rule’s impact on efficiency, competition,
and capital formation. 15 U.S.C. 78c(f).
21 See 15 U.S.C. 78s(b)(3)(C).
jlentini on PROD1PC65 with NOTICES
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change is consistent with the Act.
Comments may be submitted by any of
the following methods:
SECURITIES AND EXCHANGE
COMMISSION
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
Number SR–BSE–2008–43 on the
subject line.
[Release No. 34–58443; File No. SR–NYSE–
2008–79]
Self-Regulatory Organizations; New
York Stock Exchange LLC; Notice of
Filing and Order Granting Accelerated
Approval of Proposed Rule Change to
Reduce the Monthly Fee for NYSE
Realtime Reference Prices
August 29, 2008.
Paper Comments
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 August
28, 2008, the New York Stock Exchange
LLC (the ‘‘NYSE’’ or the ‘‘Exchange’’)
All submissions should refer to File
filed with the Securities and Exchange
Number SR–BSE–2008–43. This file
Commission (‘‘Commission’’) the
number should be included on the
proposed rule change as described in
subject line if e-mail is used. To help the
Items I and II below, which Items have
Commission process and review your
been prepared by the Exchange. The
comments more efficiently, please use
Commission is publishing this notice to
only one method. The Commission will
solicit comments on the proposed rule
post all comments on the Commission’s
change from interested persons, and is
Internet Web site (https://www.sec.gov/
approving the proposal on an
rules/sro.shtml). Copies of the
accelerated basis.
submission, all subsequent
I. Self-Regulatory Organization’s
amendments, all written statements
Statement of the Terms of Substance of
with respect to the proposed rule
the Proposed Rule Change
change that are filed with the
Commission, and all written
The Exchange proposes to reduce the
communications relating to the
fixed monthly fee that applies to its
proposed rule change between the
‘‘NYSE Realtime Reference Prices’’
Commission and any person, other than service, a service that the Exchange is
those that may be withheld from the
currently providing on a pilot test basis.
public in accordance with the
There is no new rule text.
provisions of 5 U.S.C. 552, will be
II. Self-Regulatory Organization’s
available for inspection and copying in
Statement of the Purpose of, and
the Commission’s Public Reference
Statutory Basis for, the Proposed Rule
Room, 100 F Street, NE., Washington,
Change
DC 20549, on official business days
between the hours of 10 a.m. and 3 p.m.
In its filing with the Commission, the
Copies of the filing also will be available self-regulatory organization included
for inspection and copying at the
statements concerning the purpose of,
principal office of the BSE. All
and basis for, the proposed rule change
comments received will be posted
and discussed any comments it received
without change; the Commission does
on the proposed rule change. The text
not edit personal identifying
of those statements may be examined at
information from submissions. You
the places specified in Item III below.
should submit only information that
The Exchange has prepared summaries,
you wish to make available publicly. All set forth in sections A, B, and C below,
submissions should refer to File
of the most significant parts of such
Number SR–BSE–2008–43 and should
statements.
be submitted on or before September 30,
A. Self-Regulatory Organization’s
2008.
Statement of the Purpose of, and
For the Commission, by the Division of
Statutory Basis for, the Proposed Rule
Trading and Markets, pursuant to delegated
Change
22
authority.
• Send paper comments in triplicate
to Secretary, Securities and Exchange
Commission, 100 F Street, NE.,
Washington, DC 20549–1090.
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8–20869 Filed 9–8–08; 8:45 am]
1. Purpose
In File No. SR–NYSE–2007–04 (the
‘‘NYSE Realtime Reference Prices
BILLING CODE 8010–01–P
1 15
22 17
PO 00000
CFR 200.30–3(a)(12).
Frm 00176
Fmt 4703
Sfmt 4703
2 17
E:\FR\FM\09SEN1.SGM
U.S.C. 78s(b)(1).
CFR 240.19b–4.
09SEN1
Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Notices
jlentini on PROD1PC65 with NOTICES
Filing’’),3 the Exchange established a
pilot program to provide a new NYSEonly market data service that allows a
vendor to redistribute on a real-time
basis last sale prices of transactions that
take place on the Exchange. The
Exchange intends for the NYSE
Realtime Reference Prices service to
provide a low-cost service that will
make real-time prices widely available
to many millions of casual investors, to
provide vendors with a real-time
substitute for delayed prices, and to
relieve vendors of all administrative
burdens.
The pilot program, which is currently
scheduled to terminate on November 1,
2008, allows internet service providers,
traditional market data vendors, and
others (‘‘NYSE-Only Vendors’’) to make
available NYSE Realtime Reference
Prices on a real-time basis.4 NYSE
Realtime Reference Prices information
includes last sale prices for all securities
that are traded on the Exchange. It
includes only prices. It does not include
the size of each trade and does not
include bid/asked quotations.
During the pilot program, the
Exchange will not permit NYSE-Only
Vendors to provide NYSE Realtime
Reference Prices in a context in which
a trading or order-routing decision can
be implemented unless the NYSE-Only
Vendor also provides consolidated
displays of Network A last sale prices
available in an equivalent manner, as
Rule 603(c)(1) of Regulation NMS
requires.
The NYSE Realtime Reference Price
pilot program features a flat, fixed
monthly vendor fee, no user-based fees,
no vendor reporting requirements, and
no professional or non-professional
subscriber agreements. For the duration
of the pilot program, the Exchange
established a monthly flat fee that
entitles a vendor to receive access to the
NYSE Realtime Reference Prices
datafeed. The vendor may use that
access to provide unlimited NYSE
Realtime Reference Prices to an
unlimited number of the vendor’s
subscribers and customers.
The Exchange set the flat fee at
$100,000 per month. The purpose of
this proposed rule change is to reduce
the flat monthly fee from $100,000 to
$70,000. This fee enables vendors to
make NYSE Realtime Reference Prices
available without having to differentiate
between professional subscribers and
nonprofessional subscribers, without
3 See Securities Exchange Act Release No. 57966
(June 16, 2008), 73 FR 35182 (June 20, 2008).
4 The Exchange notes that it will make the NYSE
Realtime Reference Prices available to vendors no
earlier than it makes those prices available to the
processor under the CTA Plan.
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Jkt 214001
having to account for the extent of
access to the data, and without having
to report the number of users.
The Exchange believes that the
existing fee enables internet service
providers and traditional vendors that
have large numbers of casual investors
as subscribers and customers to
contribute to the Exchange’s operating
costs in a manner that is appropriate for
their means of distribution. After
consultation with some of the entities
that have shown the most interest in the
service, and after a few months of
experience with the product, the
Exchange believes that the proposed
reduction in NYSE Realtime Reference
Prices pilot program fees will make the
product more attractive to vendors. An
increase in the number of vendors that
determine to provide free access to
NYSE Realtime Reference prices to their
internet users would benefit the
investment community. The fee
reduction will also respond to the price
competition provided by alternative
exchanges, ECNs and the market for
delayed data. In addition, it will better
reflect the perceived value of the NYSE
product and provide a more equitable
allocation of the Exchange’s overall
costs to users of its facilities.
In modifying the level of the NYSE
Realtime Reference Prices pilot program
fee, the Exchange also took into
consideration such other factors as:
(1) The fees that Nasdaq and other
markets are charging for similar
services;
(2) The contribution of market data
revenues that the Exchange believes is
appropriate for entities that provide
market data to large numbers of
investors, which are the entities most
likely to take advantage of the proposed
fees;
(3) The contribution that revenues
accruing from the proposed fees will
make to meeting the overall costs of the
Exchange’s operations;
(4) Projected losses to the Exchange’s
other sources of market data revenues
(e.g., from its share of revenues derived
from Network A nonprofessional
subscriber fees) as a result of the NYSE
Realtime Reference Prices service
competing with those services;
(5) The savings in administrative and
reporting costs that the NYSE Realtime
Reference Prices service will provide to
NYSE-Only Vendors; and
(6) The fact that the proposed fees
provide an alternative to existing
Network A fees under the CTA Plan, an
alternative that vendors will purchase
only if they determine that the
perceived benefits outweigh the cost.
Prior to the end of the pilot program
period, the Exchange will assess its
PO 00000
Frm 00177
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52437
experience with the product. It either
will submit a proposed rule change that
seeks to extend or modify the pilot
program or to make it permanent, or
will announce publicly that it does not
seek to extend the pilot program beyond
the pilot program’s termination date.
2. Statutory Basis
The basis under the Act for this
proposed rule change is the requirement
under section 6(b)(4) that an exchange
have rules that provide for the equitable
allocation of reasonable dues, fees and
other charges among its members and
other persons using its facilities. In light
of the Exchange’s experience with the
NYSE Realtime Reference Prices pilot
program and after consultation with
entities participating in the pilot
program, the Exchange believes that the
proposed reduction of the NYSE
Realtime Reference Prices fee is
equitable.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
this proposed rule change will impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants or Others
The Exchange has discussed the
proposed rules change with entities that
are participating in the pilot program.
While those entities have not submitted
formal, written comments on the
proposal, the Exchange has consulted
with them regarding the NYSE Realtime
Reference Prices fee and the proposed
rule change reflects their input. The
Exchange has not received any
unsolicited written comments from
members or other interested parties.
III. 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 e-mail to rulecomments@sec.gov. Please include File
Number SR–NYSE–2008–79 on the
subject line.
E:\FR\FM\09SEN1.SGM
09SEN1
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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Notices
Paper Comments
• Send paper comments in triplicate
to Secretary, Securities and Exchange
Commission, 100 F Street, NE.,
Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NYSE–2008–79. 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, on official business days between
the hours of 10 a.m. and 3 p.m. Copies
of the 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–NYSE–
2008–79 and should be submitted on or
before September 30, 2008.
jlentini on PROD1PC65 with NOTICES
IV. Commission’s Findings and Order
Granting Accelerated Approval of a
Proposed Rule Change
The Commission finds that the
proposed rule change, to be
implemented for the remainder of the
pilot period, is consistent with the
requirements of the Act and the rules
and regulations thereunder applicable to
a national securities exchange.5 In
particular, it is consistent with section
6(b)(4) of the Act,6 which requires that
the rules of a national securities
exchange provide for the equitable
allocation of reasonable dues, fees, and
other charges among its members and
issuers and other parties using its
facilities, and section 6(b)(5) of the Act,7
which requires, among other things, that
5 In approving this proposed rule change, the
Commission has considered the proposed rule’s
impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
6 15 U.S.C. 78f(b)(4).
7 15 U.S.C. 78f(b)(5).
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17:08 Sep 08, 2008
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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, and not be designed to
permit unfair discrimination between
customers, issuers, brokers, or dealers.
The Commission also finds that the
proposed rule change is consistent with
the provisions of section 6(b)(8) of the
Act,8 which requires that the rules of an
exchange not impose any burden on
competition not necessary or
appropriate in furtherance of the
purposes of the Act. Finally, the
Commission finds that the proposed
rule change is consistent with Rule
603(a) of Regulation NMS,9 adopted
under Section 11A(c)(1) of the Act,
which requires an exclusive processor
that distributes information with respect
to quotations for or transactions in an
NMS stock to do so on terms that are
fair and reasonable and that are not
unreasonably discriminatory.10
The Commission notes that the
proposal reduces the flat monthly fee for
NYSE Realtime Reference Prices from
$100,000 per month to $70,000 per
month without reducing the amount of
data received through NYSE Realtime
Reference Prices. In addition, the
Commission notes that the reduced fee
will apply for the remainder of the pilot
period. The Commission approved the
fee for NYSE Realtime Reference Prices
for a pilot period which runs until
October 31, 2008. On June 4, 2008, the
Commission approved for public
comment a draft approval order that sets
forth a market-based approach for
analyzing proposals by self-regulatory
organizations to impose fees for ‘‘noncore’’ market data products that would
encompass the NYSE Realtime
Reference Prices.11 The Commission
believes that the proposal is consistent
with the Act for the reasons noted
preliminarily in the Draft Approval
Order. Pending review by the
Commission of comments received on
the Draft Approval Order, and final
Commission action thereon, the
Commission believes that approving
8 15
U.S.C. 78f(b)(8).
CFR 242.603(a).
10 NYSE is an exclusive processor of its last sale
data under Section 3(a)(22)(B) of the Act, 15 U.S.C.
78c(a)(22)(B), which defines an exclusive processor
as, among other things, an exchange that distributes
data on an exclusive basis on its own behalf.
11 See Securities Exchange Act Release No. 57917
(June 4, 2008), 73 FR 32751 (June 10, 2008) (Notice
of Proposed Order Approving Proposal by NYSE
Arca, Inc. to Establish Fees for Certain Market Data
and Request for Comment) (‘‘Draft Approval
Order’’).
9 17
PO 00000
Frm 00178
Fmt 4703
Sfmt 4703
NYSE’s proposal to reduce the monthly
fee for the remainder of the pilot period
would be beneficial to investors and in
the public interest, in that it should
result in increased broad public
dissemination of real-time pricing
information. The broader approach
ultimately taken by the Commission
with respect to non-core market data
fees will necessarily guide Commission
action regarding fees for the NYSE
Realtime Reference Prices beyond the
pilot period.
The Commission notes that the
Exchange reconsidered the original
factors it used to establish the fee for
NYSE Realtime Reference Prices in
determining the proposed reduced flat
monthly fee. In addition, the
Commission notes that the Exchange’s
experience with NYSE Realtime
Reference Prices, consultation with
entities that have shown the most
interest in NYSE Realtime Reference
Prices, and price competition provided
by other market data products were
considered by NYSE in determining to
reduce the flat monthly fee.
The Commission finds good cause for
approving the proposed rule change
before the thirtieth day after the date of
publication of notice of filing thereof in
the Federal Register. Accelerating
approval of this proposal should benefit
investors by facilitating their access to
widespread, free, real-time pricing
information contained in the NYSE
Realtime Reference Prices. In addition,
the Commission notes that the proposal
should benefit vendors that make realtime pricing information available by
reducing their monthly fees. Therefore,
the Commission finds good cause,
consistent with section 19(b)(2) of the
Act,12 to approve the proposed rule
change on an accelerated basis only for
a pilot period to expire on October 31,
2008, while the Commission analyzes
comments on the Draft Approval Order.
V. Conclusion
It is therefore ordered, pursuant to
section 19(b)(2) of the Act, that the
proposed rule change (SR–NYSE–2008–
79) is hereby approved on an
accelerated basis until October 31, 2008.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.13
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8–20807 Filed 9–8–08; 8:45 am]
BILLING CODE 8010–01–P
12 15
13 17
E:\FR\FM\09SEN1.SGM
U.S.C. 78s(b)(2).
CFR 200.30–3(a)(12).
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Agencies
[Federal Register Volume 73, Number 175 (Tuesday, September 9, 2008)]
[Notices]
[Pages 52436-52438]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-20807]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-58443; File No. SR-NYSE-2008-79]
Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Order Granting Accelerated Approval of Proposed
Rule Change to Reduce the Monthly Fee for NYSE Realtime Reference
Prices
August 29, 2008.
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 August 28, 2008, the New York Stock Exchange LLC (the ``NYSE'' or
the ``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II 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, and is approving the
proposal on an accelerated basis.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to reduce the fixed monthly fee that applies
to its ``NYSE Realtime Reference Prices'' service, a service that the
Exchange is currently providing on a pilot test basis. There is no new
rule text.
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 self-regulatory organization
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 those statements may be examined at
the places specified in Item III 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
In File No. SR-NYSE-2007-04 (the ``NYSE Realtime Reference Prices
[[Page 52437]]
Filing''),\3\ the Exchange established a pilot program to provide a new
NYSE-only market data service that allows a vendor to redistribute on a
real-time basis last sale prices of transactions that take place on the
Exchange. The Exchange intends for the NYSE Realtime Reference Prices
service to provide a low-cost service that will make real-time prices
widely available to many millions of casual investors, to provide
vendors with a real-time substitute for delayed prices, and to relieve
vendors of all administrative burdens.
---------------------------------------------------------------------------
\3\ See Securities Exchange Act Release No. 57966 (June 16,
2008), 73 FR 35182 (June 20, 2008).
---------------------------------------------------------------------------
The pilot program, which is currently scheduled to terminate on
November 1, 2008, allows internet service providers, traditional market
data vendors, and others (``NYSE-Only Vendors'') to make available NYSE
Realtime Reference Prices on a real-time basis.\4\ NYSE Realtime
Reference Prices information includes last sale prices for all
securities that are traded on the Exchange. It includes only prices. It
does not include the size of each trade and does not include bid/asked
quotations.
---------------------------------------------------------------------------
\4\ The Exchange notes that it will make the NYSE Realtime
Reference Prices available to vendors no earlier than it makes those
prices available to the processor under the CTA Plan.
---------------------------------------------------------------------------
During the pilot program, the Exchange will not permit NYSE-Only
Vendors to provide NYSE Realtime Reference Prices in a context in which
a trading or order-routing decision can be implemented unless the NYSE-
Only Vendor also provides consolidated displays of Network A last sale
prices available in an equivalent manner, as Rule 603(c)(1) of
Regulation NMS requires.
The NYSE Realtime Reference Price pilot program features a flat,
fixed monthly vendor fee, no user-based fees, no vendor reporting
requirements, and no professional or non-professional subscriber
agreements. For the duration of the pilot program, the Exchange
established a monthly flat fee that entitles a vendor to receive access
to the NYSE Realtime Reference Prices datafeed. The vendor may use that
access to provide unlimited NYSE Realtime Reference Prices to an
unlimited number of the vendor's subscribers and customers.
The Exchange set the flat fee at $100,000 per month. The purpose of
this proposed rule change is to reduce the flat monthly fee from
$100,000 to $70,000. This fee enables vendors to make NYSE Realtime
Reference Prices available without having to differentiate between
professional subscribers and nonprofessional subscribers, without
having to account for the extent of access to the data, and without
having to report the number of users.
The Exchange believes that the existing fee enables internet
service providers and traditional vendors that have large numbers of
casual investors as subscribers and customers to contribute to the
Exchange's operating costs in a manner that is appropriate for their
means of distribution. After consultation with some of the entities
that have shown the most interest in the service, and after a few
months of experience with the product, the Exchange believes that the
proposed reduction in NYSE Realtime Reference Prices pilot program fees
will make the product more attractive to vendors. An increase in the
number of vendors that determine to provide free access to NYSE
Realtime Reference prices to their internet users would benefit the
investment community. The fee reduction will also respond to the price
competition provided by alternative exchanges, ECNs and the market for
delayed data. In addition, it will better reflect the perceived value
of the NYSE product and provide a more equitable allocation of the
Exchange's overall costs to users of its facilities.
In modifying the level of the NYSE Realtime Reference Prices pilot
program fee, the Exchange also took into consideration such other
factors as:
(1) The fees that Nasdaq and other markets are charging for similar
services;
(2) The contribution of market data revenues that the Exchange
believes is appropriate for entities that provide market data to large
numbers of investors, which are the entities most likely to take
advantage of the proposed fees;
(3) The contribution that revenues accruing from the proposed fees
will make to meeting the overall costs of the Exchange's operations;
(4) Projected losses to the Exchange's other sources of market data
revenues (e.g., from its share of revenues derived from Network A
nonprofessional subscriber fees) as a result of the NYSE Realtime
Reference Prices service competing with those services;
(5) The savings in administrative and reporting costs that the NYSE
Realtime Reference Prices service will provide to NYSE-Only Vendors;
and
(6) The fact that the proposed fees provide an alternative to
existing Network A fees under the CTA Plan, an alternative that vendors
will purchase only if they determine that the perceived benefits
outweigh the cost.
Prior to the end of the pilot program period, the Exchange will
assess its experience with the product. It either will submit a
proposed rule change that seeks to extend or modify the pilot program
or to make it permanent, or will announce publicly that it does not
seek to extend the pilot program beyond the pilot program's termination
date.
2. Statutory Basis
The basis under the Act for this proposed rule change is the
requirement under section 6(b)(4) that an exchange have rules that
provide for the equitable allocation of reasonable dues, fees and other
charges among its members and other persons using its facilities. In
light of the Exchange's experience with the NYSE Realtime Reference
Prices pilot program and after consultation with entities participating
in the pilot program, the Exchange believes that the proposed reduction
of the NYSE Realtime Reference Prices fee is equitable.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that this proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
The Exchange has discussed the proposed rules change with entities
that are participating in the pilot program. While those entities have
not submitted formal, written comments on the proposal, the Exchange
has consulted with them regarding the NYSE Realtime Reference Prices
fee and the proposed rule change reflects their input. The Exchange has
not received any unsolicited written comments from members or other
interested parties.
III. 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 e-mail to rule-comments@sec.gov. Please include
File Number SR-NYSE-2008-79 on the subject line.
[[Page 52438]]
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2008-79. 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, on official business
days between the hours of 10 a.m. and 3 p.m. Copies of the 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-
NYSE-2008-79 and should be submitted on or before September 30, 2008.
IV. Commission's Findings and Order Granting Accelerated Approval of a
Proposed Rule Change
The Commission finds that the proposed rule change, to be
implemented for the remainder of the pilot period, is consistent with
the requirements of the Act and the rules and regulations thereunder
applicable to a national securities exchange.\5\ In particular, it is
consistent with section 6(b)(4) of the Act,\6\ which requires that the
rules of a national securities exchange provide for the equitable
allocation of reasonable dues, fees, and other charges among its
members and issuers and other parties using its facilities, and section
6(b)(5) of the Act,\7\ 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, and not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
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\5\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
\6\ 15 U.S.C. 78f(b)(4).
\7\ 15 U.S.C. 78f(b)(5).
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The Commission also finds that the proposed rule change is
consistent with the provisions of section 6(b)(8) of the Act,\8\ which
requires that the rules of an exchange not impose any burden on
competition not necessary or appropriate in furtherance of the purposes
of the Act. Finally, the Commission finds that the proposed rule change
is consistent with Rule 603(a) of Regulation NMS,\9\ adopted under
Section 11A(c)(1) of the Act, which requires an exclusive processor
that distributes information with respect to quotations for or
transactions in an NMS stock to do so on terms that are fair and
reasonable and that are not unreasonably discriminatory.\10\
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\8\ 15 U.S.C. 78f(b)(8).
\9\ 17 CFR 242.603(a).
\10\ NYSE is an exclusive processor of its last sale data under
Section 3(a)(22)(B) of the Act, 15 U.S.C. 78c(a)(22)(B), which
defines an exclusive processor as, among other things, an exchange
that distributes data on an exclusive basis on its own behalf.
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The Commission notes that the proposal reduces the flat monthly fee
for NYSE Realtime Reference Prices from $100,000 per month to $70,000
per month without reducing the amount of data received through NYSE
Realtime Reference Prices. In addition, the Commission notes that the
reduced fee will apply for the remainder of the pilot period. The
Commission approved the fee for NYSE Realtime Reference Prices for a
pilot period which runs until October 31, 2008. On June 4, 2008, the
Commission approved for public comment a draft approval order that sets
forth a market-based approach for analyzing proposals by self-
regulatory organizations to impose fees for ``non-core'' market data
products that would encompass the NYSE Realtime Reference Prices.\11\
The Commission believes that the proposal is consistent with the Act
for the reasons noted preliminarily in the Draft Approval Order.
Pending review by the Commission of comments received on the Draft
Approval Order, and final Commission action thereon, the Commission
believes that approving NYSE's proposal to reduce the monthly fee for
the remainder of the pilot period would be beneficial to investors and
in the public interest, in that it should result in increased broad
public dissemination of real-time pricing information. The broader
approach ultimately taken by the Commission with respect to non-core
market data fees will necessarily guide Commission action regarding
fees for the NYSE Realtime Reference Prices beyond the pilot period.
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\11\ See Securities Exchange Act Release No. 57917 (June 4,
2008), 73 FR 32751 (June 10, 2008) (Notice of Proposed Order
Approving Proposal by NYSE Arca, Inc. to Establish Fees for Certain
Market Data and Request for Comment) (``Draft Approval Order'').
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The Commission notes that the Exchange reconsidered the original
factors it used to establish the fee for NYSE Realtime Reference Prices
in determining the proposed reduced flat monthly fee. In addition, the
Commission notes that the Exchange's experience with NYSE Realtime
Reference Prices, consultation with entities that have shown the most
interest in NYSE Realtime Reference Prices, and price competition
provided by other market data products were considered by NYSE in
determining to reduce the flat monthly fee.
The Commission finds good cause for approving the proposed rule
change before the thirtieth day after the date of publication of notice
of filing thereof in the Federal Register. Accelerating approval of
this proposal should benefit investors by facilitating their access to
widespread, free, real-time pricing information contained in the NYSE
Realtime Reference Prices. In addition, the Commission notes that the
proposal should benefit vendors that make real-time pricing information
available by reducing their monthly fees. Therefore, the Commission
finds good cause, consistent with section 19(b)(2) of the Act,\12\ to
approve the proposed rule change on an accelerated basis only for a
pilot period to expire on October 31, 2008, while the Commission
analyzes comments on the Draft Approval Order.
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\12\ 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,
that the proposed rule change (SR-NYSE-2008-79) is hereby approved on
an accelerated basis until October 31, 2008.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
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\13\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-20807 Filed 9-8-08; 8:45 am]
BILLING CODE 8010-01-P