Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend Fee Pilot Program for NASDAQ Last Sale, 41845-41850 [2011-17870]

Download as PDF Federal Register / Vol. 76, No. 136 / Friday, July 15, 2011 / Notices III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act 6 and Rule 19b–4(f)(6) thereunder.7 Because the 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 prior to 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, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 8 and Rule 19b–4(f)(6)(iii) thereunder.9 A proposed rule change filed under Rule 19b–4(f)(6) 10 normally does not become operative for 30 days after the date of filing. However, pursuant to Rule 19b–4(f)(6)(iii) 11 the Commission may 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 filing. The Commission believes that waiving the 30-day operative delay to permit the Exchange to implement this proposal without delay is consistent with the protection of investors and the public interest.12 The Exchange noted that it is prepared to deploy this technology change immediately and this change would not require ETP Holders to make system changes. The Commission notes that the proposed rule change may reduce the potential for price dislocation and clearly erroneous executions. Waiving the 30-day delayed operative date will enable the Exchange to implement immediately the proposed functionality to achieve these goals and to enhance investor protection. For 6 15 U.S.C. 78s(b)(3)(A)(iii). CFR 240.19b–4(f)(6). 8 15 U.S.C. 78s(b)(3)(A). 9 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 4(f)(6)(iii) requires the Exchange to give the Commission written notice of the Exchange’s 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 has satisfied this requirement. 10 17 CFR 240.19b–4(f)(6). 11 17 CFR 240.19b–4(f)(6)(iii). 12 For purposes only of waiving the 30-day operative delay, the Commission has also considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). mstockstill on DSK4VPTVN1PROD with NOTICES 7 17 VerDate Mar<15>2010 16:55 Jul 14, 2011 Jkt 223001 these reasons, the Commission designates the proposed rule change as operative upon filing. 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 (http://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File No. SR–NYSEArca–2011–45 on the subject line. 41845 information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File No. SR–NYSEArca–2011–45 and should be submitted on or before August 5, 2011. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.13 Cathy H. Ahn, Deputy Secretary. [FR Doc. 2011–17871 Filed 7–14–11; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–64856; File No. SR– NASDAQ–2011–092] Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend Fee Pilot Program for NASDAQ Last Sale July 12, 2011. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Paper Comments notice is hereby given that on June 30, 2011, The NASDAQ Stock Market LLC • Send paper comments in triplicate (‘‘NASDAQ’’) filed with the Securities to Elizabeth M. Murphy, Secretary, and Exchange Commission Securities and Exchange Commission, (‘‘Commission’’) the proposed rule 100 F Street, NE., Washington, DC change as described in Items I, II, and 20549–1090. III below, which Items have been All submissions should refer to File No. prepared by the Exchange. The SR–NYSEArca–2011–45. This file Commission is publishing this notice to number should be included on the solicit comments on the proposed rule subject line if e-mail is used. To help the change from interested persons. Commission process and review your I. Self-Regulatory Organization’s comments more efficiently, please use only one method. The Commission will Statement of the Terms of Substance of post all comments on the Commission’s the Proposed Rule Change Internet Web site (http://www.sec.gov/ NASDAQ is proposing to extend for rules/sro.shtml). Copies of the three months the fee pilot pursuant to submission, all subsequent which NASDAQ distributes the amendments, all written statements NASDAQ Last Sale (‘‘NLS’’) market data with respect to the proposed rule products. NLS allows data distributors change that are filed with the to have access to real-time market data Commission, and all written for a capped fee, enabling those communications relating to the distributors to provide free access to the proposed rule change between the data to millions of individual investors Commission and any person, other than via the internet and television. those that may be withheld from the Specifically, NASDAQ offers the public in accordance with the ‘‘NASDAQ Last Sale for NASDAQ’’ and provisions of 5 U.S.C. 552, will be ‘‘NASDAQ Last Sale for NYSE/Amex’’ available for website viewing and data feeds containing last sale activity in printing in the Commission’s Public US equities within the NASDAQ Market Reference Room, 100 F Street, NE., Center and reported to the jointlyWashington, DC 20549, on official operated FINRA/NASDAQ Trade business days between the hours of Reporting Facility (‘‘FINRA/NASDAQ 10 a.m. and 3 p.m. Copies of such filing TRF’’), which is jointly operated by also will be available for inspection and NASDAQ and the Financial Industry copying at the principal office of NYSE Arca. All comments received will be 13 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). posted without change; the Commission 2 17 CFR 240.19b–4. does not edit personal identifying PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 E:\FR\FM\15JYN1.SGM 15JYN1 41846 Federal Register / Vol. 76, No. 136 / Friday, July 15, 2011 / Notices Regulatory Authority (‘‘FINRA’’). The purpose of this proposal is to extend the existing pilot program for three months, from July 1, 2011 through September 30, 2011. This pilot program supports the aspiration of Regulation NMS to increase the availability of proprietary data by allowing market forces to determine the amount of proprietary market data information that is made available to the public and at what price. During the pilot period, the program has vastly increased the availability of NASDAQ proprietary market data to individual investors. Based upon data from NLS distributors, NASDAQ believes that since its launch in July 2008, the NLS data has been viewed by over 50,000,000 investors on Web sites operated by Google, Interactive Data, and Dow Jones, among others. The text of the proposed rule change is below. Proposed new language is italicized; proposed deletions are in brackets. * * * * * 7039. NASDAQ Last Sale Data Feeds (a) For a three month pilot period commencing on [April] July 1, 2011, NASDAQ shall offer two proprietary data feeds containing real-time last sale information for trades executed on NASDAQ or reported to the NASDAQ/ FINRA Trade Reporting Facility. (1)–(2) No change. (b)–(c) No change. * * * * * mstockstill on DSK4VPTVN1PROD with NOTICES 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 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 the Statutory Basis for, the Proposed Rule Change 1. Purpose Prior to the launch of NLS, public investors that wished to view market data to monitor their portfolios generally had two choices: (1) pay for real-time market data or (2) use free data VerDate Mar<15>2010 16:55 Jul 14, 2011 Jkt 223001 that is 15 to 20 minutes delayed. To increase consumer choice, NASDAQ proposed a pilot to offer access to realtime market data to data distributors for a capped fee, enabling those distributors to disseminate the data at no cost to millions of internet users and television viewers. NASDAQ now proposes a three-month extension of that pilot program, subject to the same fee structure as is applicable today.3 NLS consists of two separate ‘‘Level 1’’ products containing last sale activity within the NASDAQ market and reported to the jointly-operated FINRA/ NASDAQ TRF. First, the ‘‘NASDAQ Last Sale for NASDAQ’’ data product is a real-time data feed that provides realtime last sale information including execution price, volume, and time for executions occurring within the NASDAQ system as well as those reported to the FINRA/NASDAQ TRF. Second, the ‘‘NASDAQ Last Sale for NYSE/Amex’’ data product provides real-time last sale information including execution price, volume, and time for NYSE- and NYSE Amex-securities executions occurring within the NASDAQ system as well as those reported to the FINRA/NASDAQ TRF. By contrast, the securities information processors (‘‘SIPs’’) that provide ‘‘core’’ data consolidate last sale information from all exchanges and trade reporting facilities (‘‘TRFs’’). Thus, NLS replicates a subset of the information provided by the SIPs. NASDAQ established two different pricing models, one for clients that are able to maintain username/password entitlement systems and/or quote counting mechanisms to account for usage, and a second for those that are not. Firms with the ability to maintain username/password entitlement systems and/or quote counting mechanisms are eligible for a specified fee schedule for the NASDAQ Last Sale for NASDAQ Product and a separate fee schedule for the NASDAQ Last Sale for NYSE/Amex Product. Firms that are unable to maintain username/password entitlement systems and/or quote counting mechanisms also have multiple options for purchasing the NASDAQ Last Sale data. These firms choose between a ‘‘Unique Visitor’’ model for Internet delivery or a 3 NASDAQ previously stated that it would file a proposed rule change to make the NLS pilot fees permanent. NASDAQ has also informed Commission staff that it is consulting with FINRA to develop a proposed rule change by FINRA to allow inclusion of FINRA/NASDAQ TRF data in NLS on a permanent basis. Based on the progress of these discussions, NASDAQ expects that it and FINRA will both submit filings to make NLS permanent prior to the expiration of the threemonth pilot period. PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 ‘‘Household’’ model for television delivery. Unique Visitor and Household populations must be reported monthly and must be validated by a third-party vendor or ratings agency approved by NASDAQ at NASDAQ’s sole discretion. In addition, to reflect the growing confluence between these media outlets, NASDAQ offered a reduction in fees when a single distributor distributes NASDAQ Last Sale Data Products via multiple distribution mechanisms. Second, NASDAQ established a cap on the monthly fee, currently set at $50,000 per month for all NASDAQ Last Sale products. The fee cap enables NASDAQ to compete effectively against other exchanges that also offer last sale data for purchase or at no charge. As with the distribution of other NASDAQ proprietary products, all distributors of the NASDAQ Last Sale for NASDAQ and/or NASDAQ Last Sale for NYSE/Amex products pay a single $1,500/month NASDAQ Last Sale Distributor Fee in addition to any applicable usage fees. The $1,500 monthly fee applies to all distributors and does not vary based on whether the distributor distributes the data internally or externally or distributes the data via both the Internet and television. 2. Statutory Basis NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,4 in general, and with Section 6(b)(4) of the Act,5 in particular, in that it provides an equitable allocation of reasonable fees among users and recipients of the data. In adopting Regulation NMS, the Commission granted self-regulatory organizations (‘‘SROs’’) and brokerdealers (‘‘BDs’’) 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. NASDAQ believes that its NASDAQ Last Sale market data products are precisely the sort of market data product that the Commission envisioned when it adopted Regulation NMS. The Commission concluded that Regulation NMS—by lessening regulation of the market in proprietary data—would itself further the Act’s goals of facilitating efficiency and competition: [E]fficiency is promoted when brokerdealers who do not need the data beyond the prices, sizes, market center 4 15 5 15 E:\FR\FM\15JYN1.SGM U.S.C. 78f. U.S.C. 78f(b)(4). 15JYN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 136 / Friday, July 15, 2011 / Notices identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.6 By removing unnecessary regulatory restrictions on the ability of exchanges to sell their own data, Regulation NMS advanced the goals of the Act and the principles reflected in its legislative history. If the free market should determine whether proprietary data is sold to BDs at all, it follows that the price at which such data is sold should be set by the market as well. The recent decision of the United States Court of Appeals for the District of Columbia Circuit in NetCoaliton v. SEC [sic], 615 F.3d 525 (D.C. Cir. 2010), upheld the Commission’s reliance upon competitive markets to set reasonable and equitably allocated fees for market data. ‘‘In fact, the legislative history indicates that the Congress intended that the market system ‘evolve through the interplay of competitive forces as unnecessary regulatory restrictions are removed’ and that the SEC wield its regulatory power ‘in those situations where competition may not be sufficient,’ such as in the creation of a ‘consolidated transactional reporting system.’ NetCoaltion [sic], at 535 (quoting H.R. Rep. No. 94–229, at 92 (1975), as reprinted in 1975 U.S.C.C.A.N. 321, 323). The court agreed with the Commission’s conclusion that ‘‘Congress intended that ‘competitive forces should dictate the services and practices that constitute the U.S. national market system for trading equity securities.’ ’’ 7 The Court in NetCoalition, while upholding the Commission’s conclusion that competitive forces may be relied upon to establish the fairness of prices, nevertheless concluded that the record in that case did not adequately support the Commission’s conclusions as to the competitive nature of the market for NYSEArca’s data product at issue in that case. As explained below in NASDAQ’s Statement on Burden on Competition, however, NASDAQ believes that there is substantial evidence of competition in the marketplace for data that was not in the record in the NetCoalition case, and that the Commission is entitled to rely upon 6 Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496 (June 29, 2005). 7 NetCoaliton [sic], at 535. VerDate Mar<15>2010 16:55 Jul 14, 2011 Jkt 223001 such evidence in concluding that the fees established in this filing are the product of competition, and therefore in accordance with the relevant statutory standards.8 Moreover, NASDAQ further notes that the product at issue in this filing—a NASDAQ last sale data product that replicates a subset of the information available through ‘‘core’’ data products whose fees have been reviewed and approved by the SEC—is quite different from the NYSEArca depth-of-book data product at issue in NetCoalition. Accordingly, any findings of the court with respect to that product may not be relevant to the product at issue in this filing. B. Self-Regulatory Organization’s Statement on Burden on Competition NASDAQ 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. NASDAQ’s ability to price its Last Sale Data Products is constrained by (1) competition between exchanges and other trading platforms that compete with each other in a variety of dimensions; (2) the existence of inexpensive real-time consolidated data and market-specific data and free delayed consolidated data; and (3) the inherent contestability of the market for proprietary last sale data. The market for proprietary last sale data products is currently competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market. 8 It should also be noted that Section 916 of DoddFrank Wall Street Reform and Consumer Protection Act of 2010 (‘‘Dodd-Frank Act’’) has amended paragraph (A) of Section 19(b)(3) of the Act, 15 U.S.C. 78s(b)(3) to make it clear that all exchange fees, including fees for market data, may be filed by exchanges on an immediately effective basis. Although this change in the law does not alter the Commission’s authority to evaluate and ultimately disapprove exchange rules if it concludes that they are not consistent with the Act, it unambiguously reflects a conclusion that market data fee changes do not require prior Commission review before taking effect, and that a formal proceeding with regard to a particular fee change is required only if the Commission determines that it is necessary or appropriate to suspend the fee and institute such a proceeding. PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 41847 Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price and distribution of its data products. Without trade executions, exchange data products cannot exist. Moreover, data products are valuable to many end users only insofar as they provide information that end users expect will assist them or their customers in making trading decisions. The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange’s transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, the operation of the exchange is characterized by high fixed costs and low marginal costs. This cost structure is common in content and content distribution industries such as software, where developing new software typically requires a large initial investment (and continuing large investments to ‘‘upgrade’’ the software), but once the software is developed, the incremental cost of providing that software to an additional user is typically small, or even zero (e.g., if the software can be downloaded over the internet after being purchased).9 In NASDAQ’s case, it is costly to build and maintain a trading platform, but the incremental cost of trading each additional share on an existing platform, or distributing an additional instance of data, is very low. Market information and executions are each produced jointly (in the sense that the activities of trading and placing order are the source of the information that is distributed) and are each subject to significant scale economies. In such cases, marginal cost pricing is not feasible because if all sales were priced at the margin, NASDAQ would be unable to defray its platform costs of providing the joint products. 9 See William J. Baumol and Daniel G. Swanson, ‘‘The New Economy and Ubiquitous Competitive Price Discrimination: Identifying Defensible Criteria of Market Power,’’ Antitrust Law Journal, Vol. 70, No. 3 (2003). E:\FR\FM\15JYN1.SGM 15JYN1 mstockstill on DSK4VPTVN1PROD with NOTICES 41848 Federal Register / Vol. 76, No. 136 / Friday, July 15, 2011 / Notices An exchange’s BD customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A BD will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the BD chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the BD will choose not to buy it. Moreover, as a BD chooses to direct fewer orders to a particular exchange, the value of the product to that BD decreases, for two reasons. First, the product will contain less information, because executions of the BD’s trading activity will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that BD because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the BD is directing orders will become correspondingly more valuable. Similarly, in the case of products such as NLS that are distributed through market data vendors, the vendors provide price discipline for proprietary data products because they control the primary means of access to end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract ‘‘eyeballs’’ that contribute to their advertising revenue. Retail BDs, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors’ pricing discipline is the same: They can simply refuse to purchase any proprietary data product that fails to provide sufficient value. NASDAQ and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully. Moreover, NASDAQ believes that products such as NLS can enhance order flow to NASDAQ by providing more widespread distribution of information about transactions in real VerDate Mar<15>2010 16:55 Jul 14, 2011 Jkt 223001 time, thereby encouraging wider participation in the market by investors with access to the internet or television. Conversely, the value of such products to distributors and investors decreases if order flow falls, because the products contain less content. Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of the exchange’s costs to the market data portion of an exchange’s joint product. Rather, all of the exchange’s costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products. Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. NASDAQ pays rebates to attract orders, charges relatively low prices for market information and charges relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower liquidity rebates to attract orders, setting relatively low prices for accessing posted liquidity, and setting relatively high prices for market information. Still others may provide most data free of charge and rely exclusively on transaction fees to recover their costs. Finally, some platforms may incentivize use by providing opportunities for equity ownership, which may allow them to charge lower direct fees for executions and data. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering. Such regulation is unnecessary because an ‘‘excessive’’ price for one of the joint products will ultimately have to be reflected in lower prices for other products sold by the firm, or otherwise the firm experience a loss in the volume of its sales that will be adverse to its overall profitability. In other words, an increase in the price of PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 data will ultimately have to be accompanied by a decrease in the cost of executions, or the volume of both data and executions will fall. The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including thirteen SRO markets, as well as internalizing BDs and various forms of alternative trading systems (‘‘ATSs’’), including dark pools and electronic communication networks (‘‘ECNs’’). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated Trade Reporting Facilities (‘‘TRFs’’) compete to attract internalized transaction reports. It is common for BDs to further and exploit this competition by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products. The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including NASDAQ, NYSE, NYSE Amex, NYSEArca, BATS, and Direct Edge. Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple BDs’ production of proprietary data products. The potential sources of proprietary products are virtually limitless. The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products, as BATS and Arca did before registering as exchanges by publishing proprietary book data on the Internet. Second, because a single order or transaction report can appear in a core data product, an SRO proprietary product, and/or a non-SRO proprietary product, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace. Indeed, in the case of NLS, the data provided through that product appears both in (i) real-time core data products offered by the SIPs for a fee, and (ii) free E:\FR\FM\15JYN1.SGM 15JYN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 136 / Friday, July 15, 2011 / Notices SIP data products with a 15-minute time delay, and finds a close substitute in last-sale products of competing venues. In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TracECN, BATS Trading and Direct Edge. Today, BATS and Direct Edge provide data at no charge in order to attract order flow, and use market data revenue rebates from the resulting executions to maintain low execution charges for their users. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume. Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While BDs have previously published their proprietary data individually, Regulation NMS encourages market data vendors and BDs to produce proprietary products cooperatively in a manner never before possible. Multiple market data vendors already have the capability to aggregate data and disseminate it on a profitable scale, including Bloomberg and Thomson Reuters. Moreover, consolidated data provides two additional measures of pricing discipline for proprietary data products that are a subset of the consolidated data stream. First, the consolidated data is widely available in real-time at $1 per month for non-professional users. Second, consolidated data is also available at no cost with a 15- or 20minute delay. Because consolidated data contains marketwide information, it effectively places a cap on the fees assessed for proprietary data (such as last sale data) that is simply a subset of the consolidated data. The mere availability of low-cost or free consolidated data provides a powerful form of pricing discipline for proprietary data products that contain data elements that are a subset of the consolidated data, by highlighting the optional nature of proprietary products. The competitive nature of the market for products such as NLS is borne out by the performance of the market. In May 2008, the internet portal Yahoo! began offering its website viewers realtime last sale data (as well as best quote data) provided by BATS Trading. In response, in June 2008, NASDAQ VerDate Mar<15>2010 16:55 Jul 14, 2011 Jkt 223001 launched NLS, which was initially subject to an ‘‘enterprise cap’’ of $100,000 for customers receiving only one of the NLS products, and $150,000 for customers receiving both products. The majority of NASDAQ’s sales were at the capped level. In early 2009, BATS expanded its offering of free data to include depth-of-book data. Also in early 2009, NYSEArca announced the launch of a competitive last sale product with an enterprise price of $30,000 per month. In response, NASDAQ combined the enterprise cap for the NLS products and reduced the cap to $50,000 (i.e., a reduction of $100,000 per month). Although each of these products offers only a specific subset of data available from the SIPs, NASDAQ believes that the products are viewed as substitutes for each other and for core last-sale data, rather than as products that must be obtained in tandem. For example, while the internet portal Yahoo! continues to disseminate only the BATS last sale product, Google disseminates only NASDAQ’s product. In this environment, a supercompetitive increase in the fees charged for either transactions or data has the potential to impair revenues from both products. ‘‘No one disputes that competition for order flow is ‘fierce’.’’ NetCoalition at 24. The existence of fierce competition for order flow implies a high degree of price sensitivity on the part of BDs with order flow, since they may readily reduce costs by directing orders toward the lowest-cost trading venues. A BD that shifted its order flow from one platform to another in response to order execution price differentials would both reduce the value of that platform’s market data and reduce its own need to consume data from the disfavored platform. If a platform increases its market data fees, the change will affect the overall cost of doing business with the platform, and affected BDs will assess whether they can lower their trading costs by directing orders elsewhere and thereby lessening the need for the more expensive data. Similarly, increases in the cost of NLS would impair the willingness of distributors to take a product for which there are numerous alternatives, impacting NLS data revenues, the value of NLS as a tool for attracting order flow, and ultimately, the volume of orders routed to NASDAQ and the value of its other data products. In establishing the price for the NASDAQ Last Sale Products, NASDAQ considered the competitiveness of the market for last sale data and all of the implications of that competition. NASDAQ believes that it has considered all relevant factors and has not PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 41849 considered irrelevant factors in order to establish a fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. The existence of numerous alternatives to NLS, including real-time consolidated data, free delayed consolidated data, and proprietary data from other sources ensures that NASDAQ cannot set unreasonable fees, or fees that are unreasonably discriminatory, without losing business to these alternatives. Accordingly, NASDAQ believes that the acceptance of the NLS product in the marketplace demonstrates the consistency of these fees with applicable statutory standards. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Three comment letters were filed regarding the proposed rule change as originally published for comment. NASDAQ responded to these comments in a letter dated December 13, 2007. Both the comment letters and NASDAQ’s response are available on the SEC Web site at http://www.sec.gov/ comments/sr-nasdaq-2006-060/ nasdaq2006060.shtml. In addition, in response to a prior filing to extend the NLS pilot,10 the Securities Industry and Financial Markets Association (‘‘SIFMA’’) and NetCoalition filed a comment letter contending that the SEC should suspend and institute disapproval proceedings with respect to the filing. The letter incorrectly asserts that the NetCoalition case stands for the proposition that the Commission must review cost data to substantiate a determination that competitive forces constrain the price of market data. In fact, the court held the opposite: The petitioners believe that the SEC’s market-based approach is prohibited under the Exchange Act because the Congress intended ‘‘fair and reasonable’’ to be determined using a cost-based approach. The SEC counters that, because it has statutorily-granted flexibility in evaluating market data fees, its market-based approach is fully consistent with the Exchange Act. We agree with the SEC.11 10 Securities Exchange Act Release No. 64188 (April 5, 2011), 76 FR 20054 (April 11, 2011) (SR– NASDAQ–2011–044). 11 NetCoalition, 615 F3d. at 534. While the court noted that cost data could sometimes be relevant in determining the reasonableness of fees, it acknowledged that submission of cost data may be inappropriate where there are ‘‘difficulties in calculating the direct costs * * * of market data,’’ Id. at 539. That is the case here, due to the fact that the fixed costs of market data production are inseparable from the fixed costs of providing a E:\FR\FM\15JYN1.SGM Continued 15JYN1 41850 Federal Register / Vol. 76, No. 136 / Friday, July 15, 2011 / Notices SIFMA and NetCoalition further contend the prior filing lacked evidence supporting a conclusion that the market for NLS is competitive, asserting that arguments about competition for order flow and substitutability were rejected in NetCoalition. While the court did determine that the record before it was not sufficient to allow it to endorse those theories on the facts of that case, the court did not itself make any conclusive findings about the actual presence or absence of competition or the accuracy of these theories: Rather, it simply made a finding about the state of the SEC’s record. Moreover, analysis about competition in the market for depth-of-book data is only tangentially relevant to the market for last sale data. As discussed above and in the prior filing, perfect and partial substitutes for NLS exist in the form of real-time core market data, free delayed core market data, and the last sale products of competing venues, additional competitive entry is possible, and evidence of competition is readily apparent in the pricing behavior of the venues offering last sale products and the consumption patterns of their customers. Thus, although NASDAQ believes that the competitive nature of the market for all market data, including depth-of-book data, will ultimately be established, SIFMA and NetCoalition’s letter not only mischaracterizes the NetCoalition decision, it also fails to address the characteristics of the product at issue and the evidence already presented. mstockstill on DSK4VPTVN1PROD with NOTICES 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)(ii) of the Act.12 At any time within 60 days of the filing of the trading platform, and the marginal costs of market data production are minimal or even zero. Because the costs of providing execution services and market data are not unique to either of the provided services, there is no meaningful way to allocate these costs among the two ‘‘joint products’’—and any attempt to do so would result in inherently arbitrary cost allocations. The court explicitly acknowledged that the ‘‘joint product’’ theory set forth by NASDAQ’s economic experts in NetCoalition (and also described in this filing) could explain the competitive dynamic of the market and explain why consideration of cost data would be unavailing. The court found, however, that the Commission could not rely on the theory because it was not in the Commission’s record. Id. at 541 n.16. For the purpose of providing a complete explanation of the theory, NASDAQ is further submitting as Exhibit 3 to this filing a study that was recently submitted to the Commission in SR–NASDAQ–2010–174. See Statement of Janusz Ordover and Gustavo Bamberger at 2–17 (December 29, 2010). 12 15 U.S.C. 78s(b)(3)(a)(ii) [sic]. VerDate Mar<15>2010 16:55 Jul 14, 2011 Jkt 223001 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 (http://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–NASDAQ–2011–092 on the subject line. should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–NASDAQ–2011–092 and should be submitted on or before August 5, 2011. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.13 Cathy H. Ahn, Deputy Secretary. [FR Doc. 2011–17870 Filed 7–14–11; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–64853; File No. SR–ISE– 2011–39] Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing of Proposed Rule Change Relating to Complex Orders July 11, 2011. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the Paper Comments ‘‘Act’’),1 and Rule 19b–4 thereunder,2 • Send paper comments in triplicate notice is hereby given that on July 1, to Elizabeth M. Murphy, Secretary, 2011, the International Securities Securities and Exchange Commission, Exchange, LLC (the ‘‘Exchange’’ or the 100 F Street, NE., Washington, DC ‘‘ISE’’) filed with the Securities and 20549–1090. Exchange Commission (‘‘Commission’’) All submissions should refer to File the proposed rule change as described Number SR–NASDAQ–2011–092. This in Items I and II below, which items file number should be included on the subject line if e-mail is used. To help the have been prepared by the Exchange. The Commission is publishing this Commission process and review your notice to solicit comments on the comments more efficiently, please use only one method. The Commission will proposed rule change from interested post all comments on the Commission’s persons. Internet Web site (http://www.sec.gov/ I. Self-Regulatory Organization’s rules/sro.shtml). Copies of the Statement of the Terms of Substance of submission, all subsequent the Proposed Rule Change amendments, all written statements with respect to the proposed rule The Exchange proposes to provide for change that are filed with the market maker quotes for complex Commission, and all written orders, add an additional methodology communications relating to the for execution priority on the complex proposed rule change between the order book, and provide for enhanced Commission and any person, other than allocations to designated market makers those that may be withheld from the in certain circumstances. The text of the public in accordance with the proposed rule change is available on the provisions of 5 U.S.C. 552, will be Exchange’s Web site http:// available for website viewing and www.ise.com, at the principal office of printing in the Commission’s Public the Exchange, at the Commission’s Reference Room, on official business Public Reference Room, and on the days between the hours of 10 a.m. and Commission’s Web site at http:// 3 p.m. Copies of the filing also will be www.sec.gov. available for inspection and copying at the principal office of the Exchange. All comments received will be posted 13 17 CFR 200.30–3(a)(12). without change; the Commission does 1 15 U.S.C. 78s(b)(1). not edit personal identifying 2 17 CFR 240.19b–4. information from submissions. You PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 E:\FR\FM\15JYN1.SGM 15JYN1

Agencies

[Federal Register Volume 76, Number 136 (Friday, July 15, 2011)]
[Notices]
[Pages 41845-41850]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17870]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-64856; File No. SR-NASDAQ-2011-092]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Extend Fee Pilot Program for NASDAQ Last Sale

 July 12, 2011.
    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, 2011, The NASDAQ Stock Market LLC (``NASDAQ'') 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 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.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    NASDAQ is proposing to extend for three months the fee pilot 
pursuant to which NASDAQ distributes the NASDAQ Last Sale (``NLS'') 
market data products. NLS allows data distributors to have access to 
real-time market data for a capped fee, enabling those distributors to 
provide free access to the data to millions of individual investors via 
the internet and television. Specifically, NASDAQ offers the ``NASDAQ 
Last Sale for NASDAQ'' and ``NASDAQ Last Sale for NYSE/Amex'' data 
feeds containing last sale activity in US equities within the NASDAQ 
Market Center and reported to the jointly-operated FINRA/NASDAQ Trade 
Reporting Facility (``FINRA/NASDAQ TRF''), which is jointly operated by 
NASDAQ and the Financial Industry

[[Page 41846]]

Regulatory Authority (``FINRA''). The purpose of this proposal is to 
extend the existing pilot program for three months, from July 1, 2011 
through September 30, 2011.
    This pilot program supports the aspiration of Regulation NMS to 
increase the availability of proprietary data by allowing market forces 
to determine the amount of proprietary market data information that is 
made available to the public and at what price. During the pilot 
period, the program has vastly increased the availability of NASDAQ 
proprietary market data to individual investors. Based upon data from 
NLS distributors, NASDAQ believes that since its launch in July 2008, 
the NLS data has been viewed by over 50,000,000 investors on Web sites 
operated by Google, Interactive Data, and Dow Jones, among others.
    The text of the proposed rule change is below. Proposed new 
language is italicized; proposed deletions are in brackets.
* * * * *

7039. NASDAQ Last Sale Data Feeds

    (a) For a three month pilot period commencing on [April] July 1, 
2011, NASDAQ shall offer two proprietary data feeds containing real-
time last sale information for trades executed on NASDAQ or reported to 
the NASDAQ/FINRA Trade Reporting Facility.
    (1)-(2) No change.
    (b)-(c) No change.
* * * * *

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 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Prior to the launch of NLS, public investors that wished to view 
market data to monitor their portfolios generally had two choices: (1) 
pay for real-time market data or (2) use free data that is 15 to 20 
minutes delayed. To increase consumer choice, NASDAQ proposed a pilot 
to offer access to real-time market data to data distributors for a 
capped fee, enabling those distributors to disseminate the data at no 
cost to millions of internet users and television viewers. NASDAQ now 
proposes a three-month extension of that pilot program, subject to the 
same fee structure as is applicable today.\3\
---------------------------------------------------------------------------

    \3\ NASDAQ previously stated that it would file a proposed rule 
change to make the NLS pilot fees permanent. NASDAQ has also 
informed Commission staff that it is consulting with FINRA to 
develop a proposed rule change by FINRA to allow inclusion of FINRA/
NASDAQ TRF data in NLS on a permanent basis. Based on the progress 
of these discussions, NASDAQ expects that it and FINRA will both 
submit filings to make NLS permanent prior to the expiration of the 
three-month pilot period.
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    NLS consists of two separate ``Level 1'' products containing last 
sale activity within the NASDAQ market and reported to the jointly-
operated FINRA/NASDAQ TRF. First, the ``NASDAQ Last Sale for NASDAQ'' 
data product is a real-time data feed that provides real-time last sale 
information including execution price, volume, and time for executions 
occurring within the NASDAQ system as well as those reported to the 
FINRA/NASDAQ TRF. Second, the ``NASDAQ Last Sale for NYSE/Amex'' data 
product provides real-time last sale information including execution 
price, volume, and time for NYSE- and NYSE Amex-securities executions 
occurring within the NASDAQ system as well as those reported to the 
FINRA/NASDAQ TRF. By contrast, the securities information processors 
(``SIPs'') that provide ``core'' data consolidate last sale information 
from all exchanges and trade reporting facilities (``TRFs''). Thus, NLS 
replicates a subset of the information provided by the SIPs.
    NASDAQ established two different pricing models, one for clients 
that are able to maintain username/password entitlement systems and/or 
quote counting mechanisms to account for usage, and a second for those 
that are not. Firms with the ability to maintain username/password 
entitlement systems and/or quote counting mechanisms are eligible for a 
specified fee schedule for the NASDAQ Last Sale for NASDAQ Product and 
a separate fee schedule for the NASDAQ Last Sale for NYSE/Amex Product. 
Firms that are unable to maintain username/password entitlement systems 
and/or quote counting mechanisms also have multiple options for 
purchasing the NASDAQ Last Sale data. These firms choose between a 
``Unique Visitor'' model for Internet delivery or a ``Household'' model 
for television delivery. Unique Visitor and Household populations must 
be reported monthly and must be validated by a third-party vendor or 
ratings agency approved by NASDAQ at NASDAQ's sole discretion. In 
addition, to reflect the growing confluence between these media 
outlets, NASDAQ offered a reduction in fees when a single distributor 
distributes NASDAQ Last Sale Data Products via multiple distribution 
mechanisms.
    Second, NASDAQ established a cap on the monthly fee, currently set 
at $50,000 per month for all NASDAQ Last Sale products. The fee cap 
enables NASDAQ to compete effectively against other exchanges that also 
offer last sale data for purchase or at no charge.
    As with the distribution of other NASDAQ proprietary products, all 
distributors of the NASDAQ Last Sale for NASDAQ and/or NASDAQ Last Sale 
for NYSE/Amex products pay a single $1,500/month NASDAQ Last Sale 
Distributor Fee in addition to any applicable usage fees. The $1,500 
monthly fee applies to all distributors and does not vary based on 
whether the distributor distributes the data internally or externally 
or distributes the data via both the Internet and television.

2. Statutory Basis

    NASDAQ believes that the proposed rule change is consistent with 
the provisions of Section 6 of the Act,\4\ in general, and with Section 
6(b)(4) of the Act,\5\ in particular, in that it provides an equitable 
allocation of reasonable fees among users and recipients of the data. 
In adopting Regulation NMS, the Commission granted self-regulatory 
organizations (``SROs'') and broker-dealers (``BDs'') 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.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78f.
    \5\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    NASDAQ believes that its NASDAQ Last Sale market data products are 
precisely the sort of market data product that the Commission 
envisioned when it adopted Regulation NMS. The Commission concluded 
that Regulation NMS--by lessening regulation of the market in 
proprietary data--would itself further the Act's goals of facilitating 
efficiency and competition:
    [E]fficiency is promoted when broker-dealers who do not need the 
data beyond the prices, sizes, market center

[[Page 41847]]

identifications of the NBBO and consolidated last sale information are 
not required to receive (and pay for) such data. The Commission also 
believes that efficiency is promoted when broker-dealers may choose to 
receive (and pay for) additional market data based on their own 
internal analysis of the need for such data.\6\
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    \6\ Securities Exchange Act Release No. 51808 (June 9, 2005), 70 
FR 37496 (June 29, 2005).
---------------------------------------------------------------------------

    By removing unnecessary regulatory restrictions on the ability of 
exchanges to sell their own data, Regulation NMS advanced the goals of 
the Act and the principles reflected in its legislative history. If the 
free market should determine whether proprietary data is sold to BDs at 
all, it follows that the price at which such data is sold should be set 
by the market as well.
    The recent decision of the United States Court of Appeals for the 
District of Columbia Circuit in NetCoaliton v. SEC [sic], 615 F.3d 525 
(D.C. Cir. 2010), upheld the Commission's reliance upon competitive 
markets to set reasonable and equitably allocated fees for market data. 
``In fact, the legislative history indicates that the Congress intended 
that the market system `evolve through the interplay of competitive 
forces as unnecessary regulatory restrictions are removed' and that the 
SEC wield its regulatory power `in those situations where competition 
may not be sufficient,' such as in the creation of a `consolidated 
transactional reporting system.'
    NetCoaltion [sic], at 535 (quoting H.R. Rep. No. 94-229, at 92 
(1975), as reprinted in 1975 U.S.C.C.A.N. 321, 323).
    The court agreed with the Commission's conclusion that ``Congress 
intended that `competitive forces should dictate the services and 
practices that constitute the U.S. national market system for trading 
equity securities.' '' \7\
---------------------------------------------------------------------------

    \7\ NetCoaliton [sic], at 535.
---------------------------------------------------------------------------

    The Court in NetCoalition, while upholding the Commission's 
conclusion that competitive forces may be relied upon to establish the 
fairness of prices, nevertheless concluded that the record in that case 
did not adequately support the Commission's conclusions as to the 
competitive nature of the market for NYSEArca's data product at issue 
in that case. As explained below in NASDAQ's Statement on Burden on 
Competition, however, NASDAQ believes that there is substantial 
evidence of competition in the marketplace for data that was not in the 
record in the NetCoalition case, and that the Commission is entitled to 
rely upon such evidence in concluding that the fees established in this 
filing are the product of competition, and therefore in accordance with 
the relevant statutory standards.\8\ Moreover, NASDAQ further notes 
that the product at issue in this filing--a NASDAQ last sale data 
product that replicates a subset of the information available through 
``core'' data products whose fees have been reviewed and approved by 
the SEC--is quite different from the NYSEArca depth-of-book data 
product at issue in NetCoalition. Accordingly, any findings of the 
court with respect to that product may not be relevant to the product 
at issue in this filing.
---------------------------------------------------------------------------

    \8\ It should also be noted that Section 916 of Dodd- Frank Wall 
Street Reform and Consumer Protection Act of 2010 (``Dodd-Frank 
Act'') has amended paragraph (A) of Section 19(b)(3) of the Act, 15 
U.S.C. 78s(b)(3) to make it clear that all exchange fees, including 
fees for market data, may be filed by exchanges on an immediately 
effective basis. Although this change in the law does not alter the 
Commission's authority to evaluate and ultimately disapprove 
exchange rules if it concludes that they are not consistent with the 
Act, it unambiguously reflects a conclusion that market data fee 
changes do not require prior Commission review before taking effect, 
and that a formal proceeding with regard to a particular fee change 
is required only if the Commission determines that it is necessary 
or appropriate to suspend the fee and institute such a proceeding.
---------------------------------------------------------------------------

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

    NASDAQ 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. NASDAQ's ability to 
price its Last Sale Data Products is constrained by (1) competition 
between exchanges and other trading platforms that compete with each 
other in a variety of dimensions; (2) the existence of inexpensive 
real-time consolidated data and market-specific data and free delayed 
consolidated data; and (3) the inherent contestability of the market 
for proprietary last sale data.
    The market for proprietary last sale data products is currently 
competitive and inherently contestable because there is fierce 
competition for the inputs necessary to the creation of proprietary 
data and strict pricing discipline for the proprietary products 
themselves. Numerous exchanges compete with each other for listings, 
trades, and market data itself, providing virtually limitless 
opportunities for entrepreneurs who wish to produce and distribute 
their own market data. This proprietary data is produced by each 
individual exchange, as well as other entities, in a vigorously 
competitive market.
    Transaction execution and proprietary data products are 
complementary in that market data is both an input and a byproduct of 
the execution service. In fact, market data and trade execution are a 
paradigmatic example of joint products with joint costs. The decision 
whether and on which platform to post an order will depend on the 
attributes of the platform where the order can be posted, including the 
execution fees, data quality and price and distribution of its data 
products. Without trade executions, exchange data products cannot 
exist. Moreover, data products are valuable to many end users only 
insofar as they provide information that end users expect will assist 
them or their customers in making trading decisions.
    The costs of producing market data include not only the costs of 
the data distribution infrastructure, but also the costs of designing, 
maintaining, and operating the exchange's transaction execution 
platform and the cost of regulating the exchange to ensure its fair 
operation and maintain investor confidence. The total return that a 
trading platform earns reflects the revenues it receives from both 
products and the joint costs it incurs. Moreover, the operation of the 
exchange is characterized by high fixed costs and low marginal costs. 
This cost structure is common in content and content distribution 
industries such as software, where developing new software typically 
requires a large initial investment (and continuing large investments 
to ``upgrade'' the software), but once the software is developed, the 
incremental cost of providing that software to an additional user is 
typically small, or even zero (e.g., if the software can be downloaded 
over the internet after being purchased).\9\ In NASDAQ's case, it is 
costly to build and maintain a trading platform, but the incremental 
cost of trading each additional share on an existing platform, or 
distributing an additional instance of data, is very low. Market 
information and executions are each produced jointly (in the sense that 
the activities of trading and placing order are the source of the 
information that is distributed) and are each subject to significant 
scale economies. In such cases, marginal cost pricing is not feasible 
because if all sales were priced at the margin, NASDAQ would be unable 
to defray its platform costs of providing the joint products.
---------------------------------------------------------------------------

    \9\ See William J. Baumol and Daniel G. Swanson, ``The New 
Economy and Ubiquitous Competitive Price Discrimination: Identifying 
Defensible Criteria of Market Power,'' Antitrust Law Journal, Vol. 
70, No. 3 (2003).

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[[Page 41848]]

    An exchange's BD customers view the costs of transaction executions 
and of data as a unified cost of doing business with the exchange. A BD 
will direct orders to a particular exchange only if the expected 
revenues from executing trades on the exchange exceed net transaction 
execution costs and the cost of data that the BD chooses to buy to 
support its trading decisions (or those of its customers). The choice 
of data products is, in turn, a product of the value of the products in 
making profitable trading decisions. If the cost of the product exceeds 
its expected value, the BD will choose not to buy it. Moreover, as a BD 
chooses to direct fewer orders to a particular exchange, the value of 
the product to that BD decreases, for two reasons. First, the product 
will contain less information, because executions of the BD's trading 
activity will not be reflected in it. Second, and perhaps more 
important, the product will be less valuable to that BD because it does 
not provide information about the venue to which it is directing its 
orders. Data from the competing venue to which the BD is directing 
orders will become correspondingly more valuable.
    Similarly, in the case of products such as NLS that are distributed 
through market data vendors, the vendors provide price discipline for 
proprietary data products because they control the primary means of 
access to end users. Vendors impose price restraints based upon their 
business models. For example, vendors such as Bloomberg and Reuters 
that assess a surcharge on data they sell may refuse to offer 
proprietary products that end users will not purchase in sufficient 
numbers. Internet portals, such as Google, impose a discipline by 
providing only data that will enable them to attract ``eyeballs'' that 
contribute to their advertising revenue. Retail BDs, such as Schwab and 
Fidelity, offer their customers proprietary data only if it promotes 
trading and generates sufficient commission revenue. Although the 
business models may differ, these vendors' pricing discipline is the 
same: They can simply refuse to purchase any proprietary data product 
that fails to provide sufficient value. NASDAQ and other producers of 
proprietary data products must understand and respond to these varying 
business models and pricing disciplines in order to market proprietary 
data products successfully. Moreover, NASDAQ believes that products 
such as NLS can enhance order flow to NASDAQ by providing more 
widespread distribution of information about transactions in real time, 
thereby encouraging wider participation in the market by investors with 
access to the internet or television. Conversely, the value of such 
products to distributors and investors decreases if order flow falls, 
because the products contain less content.
    Analyzing the cost of market data distribution in isolation from 
the cost of all of the inputs supporting the creation of market data 
will inevitably underestimate the cost of the data. Thus, because it is 
impossible to create data without a fast, technologically robust, and 
well-regulated execution system, system costs and regulatory costs 
affect the price of market data. It would be equally misleading, 
however, to attribute all of the exchange's costs to the market data 
portion of an exchange's joint product. Rather, all of the exchange's 
costs are incurred for the unified purposes of attracting order flow, 
executing and/or routing orders, and generating and selling data about 
market activity. The total return that an exchange earns reflects the 
revenues it receives from the joint products and the total costs of the 
joint products.
    Competition among trading platforms can be expected to constrain 
the aggregate return each platform earns from the sale of its joint 
products, but different platforms may choose from a range of possible, 
and equally reasonable, pricing strategies as the means of recovering 
total costs. NASDAQ pays rebates to attract orders, charges relatively 
low prices for market information and charges relatively high prices 
for accessing posted liquidity. Other platforms may choose a strategy 
of paying lower liquidity rebates to attract orders, setting relatively 
low prices for accessing posted liquidity, and setting relatively high 
prices for market information. Still others may provide most data free 
of charge and rely exclusively on transaction fees to recover their 
costs. Finally, some platforms may incentivize use by providing 
opportunities for equity ownership, which may allow them to charge 
lower direct fees for executions and data.
    In this environment, there is no economic basis for regulating 
maximum prices for one of the joint products in an industry in which 
suppliers face competitive constraints with regard to the joint 
offering. Such regulation is unnecessary because an ``excessive'' price 
for one of the joint products will ultimately have to be reflected in 
lower prices for other products sold by the firm, or otherwise the firm 
experience a loss in the volume of its sales that will be adverse to 
its overall profitability. In other words, an increase in the price of 
data will ultimately have to be accompanied by a decrease in the cost 
of executions, or the volume of both data and executions will fall.
    The level of competition and contestability in the market is 
evident in the numerous alternative venues that compete for order flow, 
including thirteen SRO markets, as well as internalizing BDs and 
various forms of alternative trading systems (``ATSs''), including dark 
pools and electronic communication networks (``ECNs''). Each SRO market 
competes to produce transaction reports via trade executions, and two 
FINRA-regulated Trade Reporting Facilities (``TRFs'') compete to 
attract internalized transaction reports. It is common for BDs to 
further and exploit this competition by sending their order flow and 
transaction reports to multiple markets, rather than providing them all 
to a single market. Competitive markets for order flow, executions, and 
transaction reports provide pricing discipline for the inputs of 
proprietary data products.
    The large number of SROs, TRFs, BDs, and ATSs that currently 
produce proprietary data or are currently capable of producing it 
provides further pricing discipline for proprietary data products. Each 
SRO, TRF, ATS, and BD is currently permitted to produce proprietary 
data products, and many currently do or have announced plans to do so, 
including NASDAQ, NYSE, NYSE Amex, NYSEArca, BATS, and Direct Edge.
    Any ATS or BD can combine with any other ATS, BD, or multiple ATSs 
or BDs to produce joint proprietary data products. Additionally, order 
routers and market data vendors can facilitate single or multiple BDs' 
production of proprietary data products. The potential sources of 
proprietary products are virtually limitless.
    The fact that proprietary data from ATSs, BDs, and vendors can by-
pass SROs is significant in two respects. First, non-SROs can compete 
directly with SROs for the production and sale of proprietary data 
products, as BATS and Arca did before registering as exchanges by 
publishing proprietary book data on the Internet. Second, because a 
single order or transaction report can appear in a core data product, 
an SRO proprietary product, and/or a non-SRO proprietary product, the 
data available in proprietary products is exponentially greater than 
the actual number of orders and transaction reports that exist in the 
marketplace. Indeed, in the case of NLS, the data provided through that 
product appears both in (i) real-time core data products offered by the 
SIPs for a fee, and (ii) free

[[Page 41849]]

SIP data products with a 15-minute time delay, and finds a close 
substitute in last-sale products of competing venues.
    In addition to the competition and price discipline described 
above, the market for proprietary data products is also highly 
contestable because market entry is rapid, inexpensive, and profitable. 
The history of electronic trading is replete with examples of entrants 
that swiftly grew into some of the largest electronic trading platforms 
and proprietary data producers: Archipelago, Bloomberg Tradebook, 
Island, RediBook, Attain, TracECN, BATS Trading and Direct Edge. Today, 
BATS and Direct Edge provide data at no charge in order to attract 
order flow, and use market data revenue rebates from the resulting 
executions to maintain low execution charges for their users. A 
proliferation of dark pools and other ATSs operate profitably with 
fragmentary shares of consolidated market volume.
    Regulation NMS, by deregulating the market for proprietary data, 
has increased the contestability of that market. While BDs have 
previously published their proprietary data individually, Regulation 
NMS encourages market data vendors and BDs to produce proprietary 
products cooperatively in a manner never before possible. Multiple 
market data vendors already have the capability to aggregate data and 
disseminate it on a profitable scale, including Bloomberg and Thomson 
Reuters.
    Moreover, consolidated data provides two additional measures of 
pricing discipline for proprietary data products that are a subset of 
the consolidated data stream. First, the consolidated data is widely 
available in real-time at $1 per month for non-professional users. 
Second, consolidated data is also available at no cost with a 15- or 
20- minute delay. Because consolidated data contains marketwide 
information, it effectively places a cap on the fees assessed for 
proprietary data (such as last sale data) that is simply a subset of 
the consolidated data. The mere availability of low-cost or free 
consolidated data provides a powerful form of pricing discipline for 
proprietary data products that contain data elements that are a subset 
of the consolidated data, by highlighting the optional nature of 
proprietary products.
    The competitive nature of the market for products such as NLS is 
borne out by the performance of the market. In May 2008, the internet 
portal Yahoo! began offering its website viewers real-time last sale 
data (as well as best quote data) provided by BATS Trading. In 
response, in June 2008, NASDAQ launched NLS, which was initially 
subject to an ``enterprise cap'' of $100,000 for customers receiving 
only one of the NLS products, and $150,000 for customers receiving both 
products. The majority of NASDAQ's sales were at the capped level. In 
early 2009, BATS expanded its offering of free data to include depth-
of-book data. Also in early 2009, NYSEArca announced the launch of a 
competitive last sale product with an enterprise price of $30,000 per 
month. In response, NASDAQ combined the enterprise cap for the NLS 
products and reduced the cap to $50,000 (i.e., a reduction of $100,000 
per month). Although each of these products offers only a specific 
subset of data available from the SIPs, NASDAQ believes that the 
products are viewed as substitutes for each other and for core last-
sale data, rather than as products that must be obtained in tandem. For 
example, while the internet portal Yahoo! continues to disseminate only 
the BATS last sale product, Google disseminates only NASDAQ's product.
    In this environment, a super-competitive increase in the fees 
charged for either transactions or data has the potential to impair 
revenues from both products. ``No one disputes that competition for 
order flow is `fierce'.'' NetCoalition at 24. The existence of fierce 
competition for order flow implies a high degree of price sensitivity 
on the part of BDs with order flow, since they may readily reduce costs 
by directing orders toward the lowest-cost trading venues. A BD that 
shifted its order flow from one platform to another in response to 
order execution price differentials would both reduce the value of that 
platform's market data and reduce its own need to consume data from the 
disfavored platform. If a platform increases its market data fees, the 
change will affect the overall cost of doing business with the 
platform, and affected BDs will assess whether they can lower their 
trading costs by directing orders elsewhere and thereby lessening the 
need for the more expensive data. Similarly, increases in the cost of 
NLS would impair the willingness of distributors to take a product for 
which there are numerous alternatives, impacting NLS data revenues, the 
value of NLS as a tool for attracting order flow, and ultimately, the 
volume of orders routed to NASDAQ and the value of its other data 
products.
    In establishing the price for the NASDAQ Last Sale Products, NASDAQ 
considered the competitiveness of the market for last sale data and all 
of the implications of that competition. NASDAQ believes that it has 
considered all relevant factors and has not considered irrelevant 
factors in order to establish a fair, reasonable, and not unreasonably 
discriminatory fees and an equitable allocation of fees among all 
users. The existence of numerous alternatives to NLS, including real-
time consolidated data, free delayed consolidated data, and proprietary 
data from other sources ensures that NASDAQ cannot set unreasonable 
fees, or fees that are unreasonably discriminatory, without losing 
business to these alternatives. Accordingly, NASDAQ believes that the 
acceptance of the NLS product in the marketplace demonstrates the 
consistency of these fees with applicable statutory standards.

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

    Three comment letters were filed regarding the proposed rule change 
as originally published for comment. NASDAQ responded to these comments 
in a letter dated December 13, 2007. Both the comment letters and 
NASDAQ's response are available on the SEC Web site at http://www.sec.gov/comments/sr-nasdaq-2006-060/nasdaq2006060.shtml. In 
addition, in response to a prior filing to extend the NLS pilot,\10\ 
the Securities Industry and Financial Markets Association (``SIFMA'') 
and NetCoalition filed a comment letter contending that the SEC should 
suspend and institute disapproval proceedings with respect to the 
filing. The letter incorrectly asserts that the NetCoalition case 
stands for the proposition that the Commission must review cost data to 
substantiate a determination that competitive forces constrain the 
price of market data. In fact, the court held the opposite:
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    \10\ Securities Exchange Act Release No. 64188 (April 5, 2011), 
76 FR 20054 (April 11, 2011) (SR-NASDAQ-2011-044).
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    The petitioners believe that the SEC's market-based approach is 
prohibited under the Exchange Act because the Congress intended ``fair 
and reasonable'' to be determined using a cost-based approach. The SEC 
counters that, because it has statutorily-granted flexibility in 
evaluating market data fees, its market-based approach is fully 
consistent with the Exchange Act. We agree with the SEC.\11\
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    \11\ NetCoalition, 615 F3d. at 534. While the court noted that 
cost data could sometimes be relevant in determining the 
reasonableness of fees, it acknowledged that submission of cost data 
may be inappropriate where there are ``difficulties in calculating 
the direct costs * * * of market data,'' Id. at 539. That is the 
case here, due to the fact that the fixed costs of market data 
production are inseparable from the fixed costs of providing a 
trading platform, and the marginal costs of market data production 
are minimal or even zero. Because the costs of providing execution 
services and market data are not unique to either of the provided 
services, there is no meaningful way to allocate these costs among 
the two ``joint products''--and any attempt to do so would result in 
inherently arbitrary cost allocations.
    The court explicitly acknowledged that the ``joint product'' 
theory set forth by NASDAQ's economic experts in NetCoalition (and 
also described in this filing) could explain the competitive dynamic 
of the market and explain why consideration of cost data would be 
unavailing. The court found, however, that the Commission could not 
rely on the theory because it was not in the Commission's record. 
Id. at 541 n.16. For the purpose of providing a complete explanation 
of the theory, NASDAQ is further submitting as Exhibit 3 to this 
filing a study that was recently submitted to the Commission in SR-
NASDAQ-2010-174. See Statement of Janusz Ordover and Gustavo 
Bamberger at 2-17 (December 29, 2010).

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[[Page 41850]]

    SIFMA and NetCoalition further contend the prior filing lacked 
evidence supporting a conclusion that the market for NLS is 
competitive, asserting that arguments about competition for order flow 
and substitutability were rejected in NetCoalition. While the court did 
determine that the record before it was not sufficient to allow it to 
endorse those theories on the facts of that case, the court did not 
itself make any conclusive findings about the actual presence or 
absence of competition or the accuracy of these theories: Rather, it 
simply made a finding about the state of the SEC's record. Moreover, 
analysis about competition in the market for depth-of-book data is only 
tangentially relevant to the market for last sale data. As discussed 
above and in the prior filing, perfect and partial substitutes for NLS 
exist in the form of real-time core market data, free delayed core 
market data, and the last sale products of competing venues, additional 
competitive entry is possible, and evidence of competition is readily 
apparent in the pricing behavior of the venues offering last sale 
products and the consumption patterns of their customers. Thus, 
although NASDAQ believes that the competitive nature of the market for 
all market data, including depth-of-book data, will ultimately be 
established, SIFMA and NetCoalition's letter not only mischaracterizes 
the NetCoalition decision, it also fails to address the characteristics 
of the product at issue and the evidence already presented.

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)(ii) of the Act.\12\ 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.
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    \12\ 15 U.S.C. 78s(b)(3)(a)(ii) [sic].
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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 (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number SR-NASDAQ-2011-092 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASDAQ-2011-092. 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 (http://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 website 
viewing and printing 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-NASDAQ-2011-092 and should be submitted on or before 
August 5, 2011.

    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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Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-17870 Filed 7-14-11; 8:45 am]
BILLING CODE 8011-01-P