Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Establish a Fee for the NASDAQ MatchView Feed, 64158-64162 [2011-26672]

Download as PDF 64158 Federal Register / Vol. 76, No. 200 / Monday, October 17, 2011 / Notices A. Self-Regulatory Organization’s Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change SECURITIES AND EXCHANGE COMMISSION [Release No. 34–65525; File No. SR– NASDAQ–2011–139] 1. Purpose Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Establish a Fee for the NASDAQ MatchView Feed October 11, 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 September 29, 2011, The NASDAQ Stock Market LLC (‘‘NASDAQ’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to establish a fee for the NASDAQ MatchView Feed (the ‘‘Feed’’). The Feed provides a view of how the Exchange views the Best Bid and Offer (‘‘BBO’’) available from away market centers for each individual security the Exchange trades. The text of the proposed rule change is available on the Exchange’s Web site at http:// nasdaq.cchwallstreet.com, at the principal office of the Exchange, and at the Commission’s Public Reference Room. jlentini on DSK4TPTVN1PROD 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 Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. 1 15 2 17 U.S.C. 78s(b)(1). CFR 240.19b–4. VerDate Mar<15>2010 16:32 Oct 14, 2011 Jkt 226001 This proposal regards the NASDAQ MatchView Feed (formerly known as the NASDAQ Ouch BBO Feed). The Feed is currently available to all Exchange members and market participants equally at no charge, offering all participants transparent, real-time data concerning the Exchange’s view of the BBO data. NASDAQ is proposing to establish the following monthly distributor fees for internal distribution: Entitlement name NASDAQ MatchView NASDAQ MatchView Enterprise License. Monthly fee $5,000 per firm for 1st server. $10,000 per firm for 2+ servers. This new Distributor fee for the MatchView Feed is completely separate from the underlying fees associated with each data feed product used to calculate the MatchView data. The Exchange makes the Feed available on a subscription basis to market participants that are connected to the Exchange whether through extranets, direct connection, or Internet-based virtual private networks. MatchView reflects the Exchange’s view of the BBO data, at any given time, based on orders executed on the Exchange and on quote information from the network processors and individual exchange bids and offers received either from the network processor or directly from an exchange that disseminates bids and offers to vendors via a proprietary data feed.3 The Feed contains the following data elements: symbol, bid price, and ask price.4 Unlike the Nasdaq TotalView feed, the MatchView feed does not contain information about individual orders, either those residing within the Exchange system or those executed or routed by the Exchange. Unlike the network processor feeds containing the National Best Bid and Offer (‘‘NBBO’’), the MatchView Feed does not identify either the market center quoting the BBO or the size of the BBO quotes. It 3 For a more detailed description of the contents of the MatchView Feed, see Securities Exchange Act Release No. 65159 (Aug. 18, 2011); 76 FR 53007 (Aug. 24, 2011) (SR–NASDAQ–2011–118). NASDAQ is proposing no changes to the MatchView Feed from the existing, filed feed. 4 The Feed also contains a time stamp and message type field for reference. PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 merely contains the symbol and bid and offer prices. NASDAQ has continued to enhance the Feed to increase market transparency and foster competition among orders and markets. NASDAQ believes the Feed is valuable to member firms in that they may use the Feed to more accurately price their orders based on the information within this product, including bids and offers received via proprietary data feeds. As a consequence, member firms may more accurately price their orders on the Exchange, thereby avoiding price adjustments by the Exchange based on a quote that is no longer available. Additionally, members can use the Feed to price orders more aggressively to narrow the BBO and provide better reference prices for investors. 2. Statutory Basis NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,5 in general, and with Section 6(b)(4) of the Act,6 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 MatchView 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 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.7 By removing unnecessary regulatory restrictions on the ability of exchanges to sell their own data, Regulation NMS 5 15 U.S.C. 78f. U.S.C. 78f(b)(4). 7 Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496 (June 29, 2005). 6 15 E:\FR\FM\17OCN1.SGM 17OCN1 Federal Register / Vol. 76, No. 200 / Monday, October 17, 2011 / Notices 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, 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, 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 equitysecurities.’ ’’ 8 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.9 Moreover, NASDAQ further 8 NetCoaliton, at 535. 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 jlentini on DSK4TPTVN1PROD with NOTICES 9 It VerDate Mar<15>2010 16:32 Oct 14, 2011 Jkt 226001 notes that the product at issue in this filing—a NASDAQ quotation 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 MatchView 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 quotation data. The market for proprietary quotation 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.10 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 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. 10 See Exhibit 3, Statement of Janusz Ordover and Gustavo Bamberger, Compass Lexecon LLC, dated December 29, 2010. PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 64159 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).11 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. 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 11 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\17OCN1.SGM 17OCN1 jlentini on DSK4TPTVN1PROD with NOTICES 64160 Federal Register / Vol. 76, No. 200 / Monday, October 17, 2011 / Notices 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 MatchView 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 MatchView 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, VerDate Mar<15>2010 16:32 Oct 14, 2011 Jkt 226001 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 PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 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 MatchView, 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 SIP data products with a 15minute time delay, and finds a close substitute in quotation 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: E:\FR\FM\17OCN1.SGM 17OCN1 jlentini on DSK4TPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 200 / Monday, October 17, 2011 / Notices 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 quotation 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 MatchView is borne out by the performance of the market. One example is the NASDAQ Last Sale product, set forth in NASDAQ Rule 7039. In May 2008, the internet portal Yahoo! began offering its Web site 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 entitlements (including only NASDAQ Listed securities), and $150,000 for customers receiving both entitlements (NASDAQ and NYSE/ AMEX Listed securities. 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- VerDate Mar<15>2010 16:32 Oct 14, 2011 Jkt 226001 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 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 MatchView would impair the willingness of distributors to take a product for which there are numerous alternatives, impacting MatchView data revenues, the value of MatchView 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 MatchView Products, NASDAQ considered the competitiveness of the market for quotation 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 MatchView, including real-time consolidated data, free delayed PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 64161 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 MatchView 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 No written comments were either solicited or received. 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. 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–2011–139 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–2011–139. This file number should be included on the subject line if e-mail is used. To help the 12 15 E:\FR\FM\17OCN1.SGM U.S.C. 78s(b)(3)(A)(ii). 17OCN1 64162 Federal Register / Vol. 76, No. 200 / Monday, October 17, 2011 / Notices 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 Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 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–2011–139 and should be submitted on or before November 7, 2011. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.13 Elizabeth M. Murphy, Secretary. [FR Doc. 2011–26672 Filed 10–14–11; 8:45 am] BILLING CODE 8011–01–P DEPARTMENT OF STATE [Public Notice 7647] 60-Day Notice of Proposed Department of State Standard Terms and Conditions for Domestic Federal Assistance Awards Notice of Standard Terms and Conditions for Domestic Federal Assistance Awards at the Department of State. ACTION: The Department of State has submitted the following Standard Terms and Conditions in accordance with Title 2 Government-wide Grants and Agreements that are subject to 2 CFR part 215, Office of Management and Budget (OMB) Circular A–110, ‘‘Uniform Administrative Requirements jlentini on DSK4TPTVN1PROD with NOTICES SUMMARY: 13 17 for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations.’’ This request to the Office of Management and Budget (OMB) for approval is in accordance with the Paperwork Reduction Act of 1995. Dated: October 7, 2011. Kimberly S. Butler, Acting, Federal Assistance Director, Office of the Procurement Executive, Department of State. Submit comments to the U.S. Department of State, Federal Assistance Division, Point of Contact Kimberly S. Butler at: ButlerKS2@state.gov for up to 60 days from October 17, 2011. DEPARTMENT OF TRANSPORTATION DATES: Direct comments to the Department of State Desk Officer in the Office of Procurement Executive, Federal Assistance Division (A/OPE/ FA). You may submit comments by the following methods: • E-mail: Kimberly S. Butler, ButlerKS2@state.gov. You must include OMB control number in the subject line of your message. • Fax: 703–875–6155. Attention: Kimberly S. Butler, Desk Officer for the Department of State. ADDRESSES: You may obtain copies of the proposed via Web site by going to http:// fa.statebuy.state.gov, click on ‘‘Proposed Standard Terms and Conditions’’ for comment. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: I. Background and Purpose of Today’s Federal Register Notice: This proposal establishes uniform administrative requirements for the U.S. Department of State Federal Assistance awards (Grants and Cooperative Agreements) awarded to institutions of higher education, hospitals, other non-profit and commercial organizations. The Grants Officer shall incorporate this part into federal assistance awards made to organizations to which it will be applied. The Department of State shall not impose inconsistent requirements, except as provided or required by Federal statute or Executive Order. This part applies to federal assistance, grants and cooperative agreements awarded to foreign governments, organizations under the jurisdiction of foreign governments and international organizations unless otherwise determined by the Grants Officer after coordination with the appropriate program officials. Non-profit organizations that implement Federal programs for States are also subject to State requirements. CFR 200.30–3(a)(12). VerDate Mar<15>2010 16:32 Oct 14, 2011 Jkt 226001 PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 [FR Doc. 2011–26781 Filed 10–14–11; 8:45 am] BILLING CODE 4710–19–P Federal Aviation Administration Notice of Intent To Rule on Passenger Facility Charge (PFC) Application 10– 16–U–00–OAK To Use PFC Revenue, Collected at Metropolitan Oakland International Airport, Oakland, CA Federal Aviation Administration (FAA), DOT. ACTION: Notice of Intent to Rule on Application. AGENCY: The FAA proposes to rule and invites public comment on the application to use PFC revenue collected at Metropolitan Oakland International Airport, under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101–508) and Part 158 of the Federal Aviation Regulations (Title 14 CFR part 158). DATES: Comments must be received on or before November 16, 2011. ADDRESSES: Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Federal Aviation Administration, Airports Division, 15000 Aviation Blvd., Room 3012, Lawndale, CA 90261. In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Ms. Deborah Ale-Flint, Director of Aviation, Metropolitan Oakland International Airport, at the following address: Port of Oakland, 530 Water Street, Oakland, California 94604. Air carriers and foreign air carriers may submit copies of written comments previously provided to the Port of Oakland under section 158.23 of part 158. FOR FURTHER INFORMATION CONTACT: Arlene Draper, Assistant Manager, San Francisco Airports District Office, 831 Mitten Road, Room 210, Burlingame, CA 94010–1303, Telephone: (650) 876– 2778, extension 601. The application may be reviewed in person at this same location. SUPPLEMENTARY INFORMATION: The FAA proposes to rule and invites public comment on the application to use PFC revenue collected at Metropolitan SUMMARY: E:\FR\FM\17OCN1.SGM 17OCN1

Agencies

[Federal Register Volume 76, Number 200 (Monday, October 17, 2011)]
[Notices]
[Pages 64158-64162]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26672]



[[Page 64158]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65525; File No. SR-NASDAQ-2011-139]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Establish a Fee for the NASDAQ MatchView Feed

October 11, 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 September 29, 2011, The NASDAQ Stock Market LLC (``NASDAQ'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I, II, and III below, which Items have been prepared by the 
Exchange. The Commission is publishing this notice to solicit comments 
on the proposed rule change from interested persons.
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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

    The Exchange proposes to establish a fee for the NASDAQ MatchView 
Feed (the ``Feed''). The Feed provides a view of how the Exchange views 
the Best Bid and Offer (``BBO'') available from away market centers for 
each individual security the Exchange trades. The text of the proposed 
rule change is available on the Exchange's Web site at http://nasdaq.cchwallstreet.com, at the principal office of the Exchange, and 
at the Commission's Public Reference Room.

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

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

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

1. Purpose
    This proposal regards the NASDAQ MatchView Feed (formerly known as 
the NASDAQ Ouch BBO Feed). The Feed is currently available to all 
Exchange members and market participants equally at no charge, offering 
all participants transparent, real-time data concerning the Exchange's 
view of the BBO data. NASDAQ is proposing to establish the following 
monthly distributor fees for internal distribution:

------------------------------------------------------------------------
             Entitlement name                        Monthly fee
------------------------------------------------------------------------
NASDAQ MatchView..........................  $5,000 per firm for 1st
                                             server.
NASDAQ MatchView Enterprise License.......  $10,000 per firm for 2+
                                             servers.
------------------------------------------------------------------------

    This new Distributor fee for the MatchView Feed is completely 
separate from the underlying fees associated with each data feed 
product used to calculate the MatchView data. The Exchange makes the 
Feed available on a subscription basis to market participants that are 
connected to the Exchange whether through extranets, direct connection, 
or Internet-based virtual private networks.
    MatchView reflects the Exchange's view of the BBO data, at any 
given time, based on orders executed on the Exchange and on quote 
information from the network processors and individual exchange bids 
and offers received either from the network processor or directly from 
an exchange that disseminates bids and offers to vendors via a 
proprietary data feed.\3\ The Feed contains the following data 
elements: symbol, bid price, and ask price.\4\ Unlike the Nasdaq 
TotalView feed, the MatchView feed does not contain information about 
individual orders, either those residing within the Exchange system or 
those executed or routed by the Exchange. Unlike the network processor 
feeds containing the National Best Bid and Offer (``NBBO''), the 
MatchView Feed does not identify either the market center quoting the 
BBO or the size of the BBO quotes. It merely contains the symbol and 
bid and offer prices.
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    \3\ For a more detailed description of the contents of the 
MatchView Feed, see Securities Exchange Act Release No. 65159 (Aug. 
18, 2011); 76 FR 53007 (Aug. 24, 2011) (SR-NASDAQ-2011-118). NASDAQ 
is proposing no changes to the MatchView Feed from the existing, 
filed feed.
    \4\ The Feed also contains a time stamp and message type field 
for reference.
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    NASDAQ has continued to enhance the Feed to increase market 
transparency and foster competition among orders and markets. NASDAQ 
believes the Feed is valuable to member firms in that they may use the 
Feed to more accurately price their orders based on the information 
within this product, including bids and offers received via proprietary 
data feeds. As a consequence, member firms may more accurately price 
their orders on the Exchange, thereby avoiding price adjustments by the 
Exchange based on a quote that is no longer available. Additionally, 
members can use the Feed to price orders more aggressively to narrow 
the BBO and provide better reference prices for investors.
2. Statutory Basis
    NASDAQ believes that the proposed rule change is consistent with 
the provisions of Section 6 of the Act,\5\ in general, and with Section 
6(b)(4) of the Act,\6\ 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.
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    \5\ 15 U.S.C. 78f.
    \6\ 15 U.S.C. 78f(b)(4).
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    NASDAQ believes that its MatchView 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 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.\7\
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    \7\ 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

[[Page 64159]]

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, 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, 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 
equitysecurities.' '' \8\
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    \8\ NetCoaliton, at 535.
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    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.\9\ Moreover, NASDAQ further notes 
that the product at issue in this filing--a NASDAQ quotation 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.
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    \9\ 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.
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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 MatchView 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 quotation data.
    The market for proprietary quotation 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.\10\ 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.
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    \10\ See Exhibit 3, Statement of Janusz Ordover and Gustavo 
Bamberger, Compass Lexecon LLC, dated December 29, 2010.
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    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).\11\ 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.
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    \11\ 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).
---------------------------------------------------------------------------

    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

[[Page 64160]]

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 MatchView 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 MatchView 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 MatchView, 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 SIP data products with a 
15-minute time delay, and finds a close substitute in quotation 
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:

[[Page 64161]]

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 quotation 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 MatchView 
is borne out by the performance of the market. One example is the 
NASDAQ Last Sale product, set forth in NASDAQ Rule 7039. In May 2008, 
the internet portal Yahoo! began offering its Web site 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 entitlements (including only NASDAQ 
Listed securities), and $150,000 for customers receiving both 
entitlements (NASDAQ and NYSE/AMEX Listed securities. 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 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 
MatchView would impair the willingness of distributors to take a 
product for which there are numerous alternatives, impacting MatchView 
data revenues, the value of MatchView 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 MatchView Products, NASDAQ 
considered the competitiveness of the market for quotation 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 MatchView, 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 MatchView 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

    No written comments were either solicited or received.

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).
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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-2011-139 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-2011-139. This 
file number should be included on the subject line if e-mail is used. 
To help the

[[Page 64162]]

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 Web site viewing and printing in 
the Commission's Public Reference Room, 100 F Street, NE., Washington, 
DC 20549, on official business days between the hours of 10 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-2011-139 and should be submitted 
on or before November 7, 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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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-26672 Filed 10-14-11; 8:45 am]
BILLING CODE 8011-01-P