Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Establishing a Fee for Television Distribution of the NYSE MKT Trades Data Product, 42535-42539 [2012-17552]
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Federal Register / Vol. 77, No. 139 / Thursday, July 19, 2012 / Notices
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exchange.13 Specifically, the
Commission finds that the proposal is
consistent with Section 6(b)(5) of the
Act,14 which requires, among other
things, that the rules of a national
securities exchange be designed to
prevent fraudulent and manipulative
acts and practices, to promote just and
equitable principles of trade, to foster
cooperation and coordination with
persons engaged in facilitating
transactions in securities, to remove
impediments to and perfect the
mechanism of a free and open market
and a national market system, and, in
general, to protect investors and the
public interest.
The proposal would accommodate the
merger of Archipelago Holdings, an
intermediate holding company, into and
with NYSE Group, thereby eliminating
Archipelago Holdings from the
ownership structure of the Exchange.
The Commission notes that the
proposed rule changes would otherwise
have no substantive impact on other
rules of the Exchange, including those
concerning the voting and ownership
restrictions that currently apply to the
Exchange and its affiliates.15 The
Exchange would continue as an indirect
wholly-owned subsidiary of NYSE
Euronext. In addition, the Commission
notes that the Board made certain
findings set forth in the Resolution that
the direct ownership of NYSE Arca
Holdings by NYSE Group as
contemplated by the Merger is in the
best interests of NYSE Arca Holdings,
its shareholders, and the Exchange. In
addition, the Board found that neither
NYSE Group, nor any of its Related
Persons, is (1) An ETP Holder of NYSE
Arca Equities, Inc. (except as otherwise
permitted by the NYSE Arca Holdings
Certificate) (2) an OTP Holder of the
Exchange (except as otherwise
permitted by the NYSE Arca Holdings
Certificate); or (3) subject to any
‘‘statutory disqualification.’’ 16
In light of these representations and
findings, the Commission believes that
the proposed rule changes are consistent
with the Act and will not impair the
ability of the Commission or the
Exchange to discharge their respective
responsibilities under the Act.
IV. Conclusion
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,17 that the
13 In approving this proposed rule change, the
Commission has considered the proposed rule’s
impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
14 15 U.S.C. 78f(b)(5).
15 See supra note 11.
16 See Resolution.
17 15 U.S.C. 78s(b)(2).
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proposed rule change (SR–NYSEArca–
2012–45) be, and it hereby is, approved.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.18
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2012–17549 Filed 7–18–12; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–67438; File No. SR–
NYSEMKT–2012–19]
Self-Regulatory Organizations; NYSE
MKT LLC; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change Establishing a Fee for
Television Distribution of the NYSE
MKT Trades Data Product
July 13, 2012.
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934 (the
‘‘Act’’) 2 and Rule 19b–4 thereunder,3
notice is hereby given that, on July 3,
2012, NYSE MKT LLC (the ‘‘Exchange’’
or ‘‘NYSE MKT’’) filed with the
Securities and Exchange Commission
(the ‘‘Commission’’) the proposed rule
change as described in Items I, II, and
III below, which Items have been
prepared by the self-regulatory
organization. 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 television distribution of the
NYSE MKT Trades data product. The
text of the proposed rule change is
available on the Exchange’s Web site at
www.nyse.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
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.
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18 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 15 U.S.C. 78a.
3 17 CFR 240.19b–4.
1 15
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42535
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
The Exchange proposes to establish a
fee for television distribution of the
NYSE MKT Trades data product.
In 2010, the Commission approved
the NYSE MKT Trades data product and
its fees.4 NYSE MKT Trades is a NYSE
MKT-only market data service that
allows a vendor to redistribute on a realtime basis the same last sale information
that the Exchange reports under the
Consolidated Tape Association (‘‘CTA’’)
Plan and the NASDAQ Unlisted Trading
Privileges Plan (‘‘NASDAQ UTP Plan’’)
for including in those plans’
consolidated data streams and certain
other related data elements (‘‘NYSE
MKT Last Sale Information’’). The
Exchange currently charges the datafeed
recipients (a) an access fee of $750 per
month (the ‘‘Access Fee’’),5 and (b) at
the election of the vendor, either (i) a
device fee for professional subscribers of
$10.00 per month or (ii) a fee based on
the number of ‘‘Subscriber
Entitlements’’ (the latter two fees
together, ‘‘User Fees’’).
The Exchange proposes to add a new
fee category for NYSE MKT Trades to
provide television broadcasters 6 with
an alternative enterprise fee (the
‘‘Broadcast Fee’’). For the receipt of
access to and the ability to display the
datafeeds of the NYSE MKT Trades
service by a television broadcaster, the
Exchange proposes to charge a flat fee
of $5,000 per month.7 Broadcasters will
not be required to track the number of
viewers.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
the provisions of Section 6 of the
4 See Securities Exchange Act Release No. 62187
(May 27, 2010); 75 FR 31500 (Jun. 3, 2010) (SR–
NYSEAmex–2010–35) (the ‘‘2010 Release’’). Since
that filing, the Exchange has changed its name from
NYSE Amex LLC to NYSE MKT LLC. See Securities
Exchange Act Release No. 67037 (May 21, 2012), 77
FR 31415 (May 25, 2012) (SR–NYSEAmex–2012–
32).
5 The Access Fee also covers the NYSE MKT BBO
service. See the 2010 Release at 31501.
6 Television broadcast can be through cable,
satellite, or traditional means.
7 Although the Broadcast Fee will not vary based
on the amount of time that the datafeed is displayed
during the day or the number of channels the
broadcaster utilizes, it will be prorated if a
television broadcaster initiates the service during
the middle of a month.
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Securities Exchange Act of 1934 (the
‘‘Act’’) 8 in general and with Section
6(b)(4) and 6(b)(5) of the Act 9 in
particular in that it provides an
equitable allocation of reasonable fees
among users and recipients of the data
and is not designed to permit unfair
discrimination among customers,
issuers, and brokers. The proposed
Broadcast Fee is reasonable, equitable,
and not unfairly discriminatory because
it will provide a convenient and easyto-administer way for a television
broadcaster to display real-time NYSE
MKT-only data on television, thereby
providing public investors and other
market participants who watch the
broadcaster’s channel with another
means to obtain current market data.
The Exchange believes that the
Broadcast Fee will be attractive to
television broadcasters because it will
enable them to provide market data to
their viewers that will complement the
broadcasters’ news reporting services
without the added administrative
burden and cost of keeping track of the
number of viewers of the datafeed. The
proposed distribution method differs,
however, from other distribution
methods in that the data will be
available in temporary, view-only mode
on television screens.10 Other available
distribution methods for NYSE MKT
Trades and alternative data products
may allow the end-user to download
and analyze last sale data in order to
make trading decisions. For these
reasons, the Exchange believes that
establishing a different pricing scheme
for television broadcasters is justified.
The Exchange also believes that its
pricing is reasonable in light of other
similar products. By way of comparison,
for example, the television ticker
display fee for CTA Network A market
data (i.e., consolidated last sale data for
securities listed on the New York Stock
Exchange) is based on the number of
viewers of the ticker, and is capped at
$125,000/month, and the television
ticker display fee for NASDAQ
securities, similarly based on the
number of households reached by the
broadcaster, is capped at $50,000. Both
of these products require the
broadcaster to track the number of
viewers of the ticker.11
The existence of alternatives to the
NYSE MKT Trades data product,
8 15
U.S.C. 78f(b).
9 15 U.S.C. 78f(b)(4) and (5).
10 A television broadcaster could elect to combine
for broadcast the NYSE MKT Trades data with other
data available to it for broadcast.
11 The Network A Rate Schedule is available at
https://www.nyxdata.com/CTA. See also NASDAQ
Rule 7039, which sets forth fees for the distribution
of NASDAQ Last Sale Data Products via Television.
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including real-time consolidated data,
free delayed consolidated data, and
proprietary last sale data from other
sources, ensures that the Exchange
cannot set unreasonable fees, or fees
that are unreasonably discriminatory,
when vendors and subscribers can elect
such alternatives. The recent decision of
the United States Court of Appeals for
the District of Columbia Circuit in
NetCoalition v. SEC, No. 09–1042 (D.C.
Cir. 2010), upheld the Commission’s
reliance upon the existence of
competitive market mechanisms to set
reasonable and equitably allocated fees
for proprietary 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.’
NetCoalition at 15 (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.’ ’’ 12
As explained below in the Exchange’s
Statement on Burden on Competition,
the Exchange believes that there is
substantial evidence of competition in
the marketplace for data and that the
Commission can rely upon such
evidence in concluding that the fees
established in this filing are the product
of competition and therefore satisfy the
relevant statutory standards.13
As the NetCoalition decision noted,
the Commission is not required to
undertake a cost-of-service or
ratemaking approach, and the Exchange
incorporates by reference into this
proposed rule change its affiliate’s
analysis of this topic in another recent
rule filing.14
For these reasons, the Exchange
believes that the proposed fee is
reasonable, equitable, and not unfairly
discriminatory.
at 16.
916 of the Dodd-Frank Wall Street
Reform and Consumer Protection Act of 2010
(‘‘Dodd-Frank Act’’) amended paragraph (A) of
Section 19(b)(3) of the Act, 15 U.S.C. 78s(b)(3), to
make clear that all exchange fees for market data
may be filed by exchanges on an immediately
effective basis.
14 See Securities Exchange Act Release No. 63291
(Nov. 9, 2010), 75 FR 70311 (Nov. 17, 2010) (SR–
NYSEArca–2010–97).
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12 NetCoalition
13 Section
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B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act. An
exchange’s ability to price its datafeed
products is constrained by (1)
Competition among exchanges and
other trading platforms that compete
with one another in a variety of
dimensions, (2) the existence of
inexpensive real-time consolidated 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.
It is common for broker-dealers to
further exploit this competition by
sending their order flow and transaction
reports to multiple markets, rather than
providing them all to a single market.
As a recent Commission Concept
Release noted, the ‘‘current market
structure can be described as dispersed
and complex’’ with ‘‘trading volume
* * * dispersed among many highly
automated trading centers that compete
for order flow in the same stocks’’ and
‘‘trading centers offer[ing] a wide range
of services that are designed to attract
different types of market participants
with varying trading needs.’’ 15
Competitive markets for order flow,
executions, and transaction reports
provide pricing discipline for the inputs
of proprietary data products and
therefore constrain markets from
overpricing proprietary market data.
The U.S. Department of Justice recently
acknowledged the aggressive
competition among exchanges. In
announcing the abandoned bid for
NYSE Euronext by NASDAQ OMX
Group Inc. and
15 Concept Release on Equity Market Structure,
Securities Exchange Act Release No. 61358 (Jan. 14,
2010), 75 FR 3594 (Jan. 22, 2010) (File No. S7–02–
10). This Concept Release included data from the
third quarter of 2009 showing that no market center
traded more than 20% of the volume of listed
stocks, further evidencing the dispersal of and
competition for trading activity. Id. at 3598.
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IntercontinentalExchange Inc., Assistant
Attorney General Christine Varney
stated that exchanges ‘‘compete head to
head to offer real-time equity data
products. These data products include
the best bid and offer of every exchange
and information on each equity trade,
including the last sale.’’ 16
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.
Further, 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 Exchange notes in that respect that
making the NYSE MKT Trades service
available on television at a more
economical and easier to administer fee
would encourage more television
broadcasters to choose to offer the
datafeed and thereby benefit public
investors and other market participants
who follow market developments
through that medium by providing them
with a convenient way to track price
trends while watching news programs
during the course of the trading day,
thereby complementing NYSE MKT
Trades offerings through other means.
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,
an exchange’s broker-dealer customers
view the costs of transaction executions
and of data as a unified cost of doing
business with the exchange.
Similarly, in the case of products that
are distributed through market data
vendors, the vendors provide price
16 Press Release, U.S. Department of Justice,
Assistant Attorney General Christine Varney Holds
Conference Call Regarding NASDAQ OMX Group
Inc. and IntercontinentalExchange Inc. Abandoning
Their Bid for NYSE Euronext (May 16, 2011),
available at https://www.justice.gov/iso/opa/atr/
speeches/2011/at-speech-110516.html.
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discipline for proprietary data products
because they control the primary means
of access to certain end users. Vendors
impose price restraints based upon their
business models. For example, vendors
such as Bloomberg and Thomson
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. Similarly, television
broadcasters will not elect to display
NYSE MKT Trades unless they believe
it will help them attract or maintain
viewers.
Other market participants have noted
that the liquidity provided by the order
book, trade execution, core market data,
and non-core market data are joint
products of a joint platform and have
common costs.17 The Exchange agrees
with and adopts those discussions and
the arguments therein. The Exchange
also notes that the economics literature
confirms that there is no way to allocate
common costs between joint products
that would shed any light on
competitive or efficient pricing.18
17 See Securities Exchange Act Release No. 62887
(Sept. 10, 2010), 75 FR 57092, 57095 (Sept. 17,
2010) (SR–Phlx–2010–121); Securities Exchange
Act Release No. 62907 (Sept. 14, 2010), 75 FR
57314, 57317 (Sept. 20, 2010) (SR–NASDAQ–2010–
110); and Securities Exchange Act Release No.
62908 (Sept. 14, 2010) (SR–NASDAQ–2010–111),
75 FR 57321, 57324 (Sept. 20, 2010) (‘‘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.’’); see also August 1, 2008 Comment
Letter of Jeffrey S. Davis, Vice President and Deputy
General Counsel, NASDAQ OMX Group, Inc.,
Statement of Janusz Ordover and Gustavo
Bamberger (‘‘because market data is both an input
to and a byproduct of executing trades on a
particular platform, market data and trade
execution services are an example of ‘joint
products’ with ‘joint costs.’’’), attachment at pg. 4,
available at www.sec.gov/comments/34-57917/
3457917-12.pdf.
18 See generally Mark Hirschey, Fundamentals of
Managerial Economics, at 600 (2009) (‘‘It is
important to note, however, that although it is
possible to determine the separate marginal costs of
goods produced in variable proportions, it is
impossible to determine their individual average
costs. This is because common costs are expenses
necessary for manufacture of a joint product.
Common costs of production—raw material and
equipment costs, management expenses, and other
overhead—cannot be allocated to each individual
by-product on any economically sound basis.* * *
Any allocation of common costs is wrong and
arbitrary.’’). This is not new economic theory. See,
e.g., F.W. Taussig, ‘‘A Contribution to the Theory
of Railway Rates,’’ Quarterly Journal of Economics
V(4) 438, 465 (July 1891) (‘‘Yet, surely, the division
is purely arbitrary. These items of cost, in fact, are
jointly incurred for both sorts of traffic; and I cannot
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42537
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 an exchange’s costs to the
market data portion of an exchange’s
joint product. Rather, all of an
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 that 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. For
example, some platforms may choose to
pay rebates to attract orders, charge
relatively low prices for market
information (or provide information free
of charge), and charge relatively high
prices for accessing posted liquidity.
Other platforms may choose a strategy
of paying lower rebates (or no rebates)
to attract orders, setting relatively high
prices for market information, and
setting relatively low prices for
accessing posted liquidity. 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.
The level of competition and
contestability in the market is evident in
the numerous alternative venues that
compete for order flow, including 12
equities self-regulatory organization
(‘‘SRO’’) markets, as well as
internalizing broker-dealers (‘‘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.
share the hope entertained by the statistician of the
Commission, Professor Henry C. Adams, that we
shall ever reach a mode of apportionment that will
lead to trustworthy results.’’).
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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 but not limited to the
Exchange, NYSE, NYSE Arca, NASDAQ
OMX, BATS, and Direct Edge.
The fact that proprietary data from
ATSs, BDs, and vendors can bypass
SROs is significant in two respects.
First, non-SROs can compete directly
with SROs for the production and sale
of proprietary data products. Second,
because a single order or transaction
report can appear in an SRO proprietary
product, a non-SRO proprietary
product, or both, the amount of data
available via proprietary products is
greater in size than the actual number of
orders and transaction reports that exist
in the marketplace. Because market data
users can thus find suitable substitutes
for most proprietary market data
products (in this case both a CTA
product and a NASDAQ proprietary
product are direct alternatives), a market
that overprices its market data products
stands a high risk that users may
substitute another source of market
information for its own.
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 Exchange notes that its Broadcast
Fee for NYSE MKT Trades is
substantially less than the fee for a
similar CTA product.
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
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the largest electronic trading platforms
and proprietary data producers:
Archipelago, Bloomberg Tradebook,
Island, RediBook, Attain, TrackECN,
BATS Trading and Direct Edge. Today,
BATS and Direct Edge provide data at
no charge on their Web sites in order to
attract more order flow, and use market
data revenue rebates from resulting
additional executions to maintain low
execution charges for its users.19
In establishing the Broadcast Fee for
the NYSE MKT Trades service, the
Exchange considered the
competitiveness of the market for data
and all of the implications of that
competition. The Exchange believes that
it has considered all relevant factors and
has not considered irrelevant factors in
order to establish fair, reasonable, and
not unreasonably discriminatory fees
and an equitable allocation of fees
among all users. The existence of
numerous alternatives to the Exchange’s
product, including real-time
consolidated data, free delayed
consolidated data, and proprietary data
from other sources, ensures that the
Exchange cannot set unreasonable fees,
or fees that are unreasonably
discriminatory, when vendors and
subscribers can elect these alternatives.
Accordingly, the Exchange believes that
the acceptance of datafeed products 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 solicited
or received with respect to the proposed
rule change.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
The foregoing rule change is effective
upon filing pursuant to Section
19(b)(3)(A)20 of the Act and
subparagraph (f)(2) of Rule 19b–421
thereunder, because it establishes a due,
fee, or other charge imposed by NYSE
MKT.
At any time within 60 days of the
filing of such proposed rule change, the
Commission summarily may
temporarily suspend such rule change if
19 This is simply a securities market-specific
example of the well-established principle that in
certain circumstances more sales at lower margins
can be more profitable than fewer sales at higher
margins; this example is additional evidence that
market data is an inherent part of a market’s joint
platform.
20 15 U.S.C. 78s(b)(3)(A).
21 17 CFR 240.19b–4(f)(2).
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it appears to the Commission that such
action is necessary or appropriate in the
public interest, for the protection of
investors, or otherwise in furtherance of
the purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rulecomments@sec.gov. Please include File
Number SR–NYSEMKT–2012–19 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–NYSEMKT–2012–19. This
file number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for Web site viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE.,
Washington, DC 20549, on official
business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of 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–
NYSEMKT–2012–19 and should be
submitted on or before August 9, 2012.
E:\FR\FM\19JYN1.SGM
19JYN1
Federal Register / Vol. 77, No. 139 / Thursday, July 19, 2012 / Notices
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.22
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2012–17552 Filed 7–18–12; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–67440; File No. SR–CBOE–
2012–062]
Self-Regulatory Organizations;
Chicago Board Options Exchange,
Incorporated; Notice of Filing and
Immediate Effectiveness of a Proposed
Rule Change To Amend the Fees
Schedule
July 13, 2012.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (the
‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on July 2,
2012, Chicago Board Options Exchange,
Incorporated (the ‘‘Exchange’’ or
‘‘CBOE’’) filed with the Securities and
Exchange Commission (the
‘‘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 amend its
Fees Schedule. The text of the proposed
rule change is available on the
Exchange’s Web site (https://
www.cboe.org/legal), at the Exchange’s
Office of the Secretary, and at the
Commission’s Public Reference Room.
emcdonald on DSK67QTVN1PROD 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.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to raise from
$0.25 per contract to $0.30 per contract
the fee for electronic executions by
voluntary professionals and
professionals in equity options and
index, ETF, ETN and HOLDRs options
(excluding OEX, XEO, SPXW and
Volatility Indexes) classes. The
Exchange also proposes to raise from
$0.45 per contract to $0.60 per contract
the fee for electronic executions by
broker-dealers in non-Penny Pilot equity
options and index, ETF, ETN and
HOLDRs options (excluding OEX, XEO,
SPXW and Volatility Indexes) classes.
Transactions executed as Qualified
Contingent Cross (‘‘QCC’’) trades or
transactions executed through the
Exchange’s Automated Improvement
Mechanism (‘‘AIM’’) when the
professional, voluntary professional or
broker-dealer is on the Agency/Primary
side are excepted from these changes.
These changes are proposed to better
reflect the costs associated with
supporting a larger number of option
classes, option series, and overall
transaction volumes that have grown
over time which has caused the
Exchange to continually invest in
software, hardware and personnel,
including increased costs for network
infrastructure and regulatory systems.
The Exchange also believes that
increasing the broker-dealer fees for
electronic executions by broker-dealers
in non-Penny Pilot equity options and
index, ETF, ETN and HOLDRs options
(excluding OEX, XEO, SPXW and
Volatility Indexes) classes will allow the
Exchange to compete more effectively
by covering these increased costs while
still subsidizing lower customer fees.
The amounts of these new fees are in
line with those assessed by other
exchanges. NASDAQ OMX PHLX LLC
(‘‘Phlx’’) assesses to broker-dealers a fee
of $0.60 per contract for electronic
transactions in non-Penny Pilot options
on equities, indexes, ETFs, ETNs, and
HOLDRs that are multiply-listed.3 The
NASDAQ Options Market (‘‘NOM’’)
assesses to professional customers a
Maker fee of $0.30 per contract and a
Taker fee of $0.50 per contract for
electronic transactions.4
The proposed changes are to take
effect on July 1, 2012.
22 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
1 15
VerDate Mar<15>2010
15:07 Jul 18, 2012
3 See
4 See
Jkt 226001
PO 00000
Phlx Fee Schedule, Section II.
NOM Fee Schedule, Section 2(1).
Frm 00058
Fmt 4703
Sfmt 4703
42539
2. Statutory Basis
The Exchange believes the proposed
rule change is consistent with the Act
and the rules and regulations
thereunder applicable to the Exchange
and, in particular, the requirements of
Section 6(b) of the Act.5 Specifically,
the Exchange believes the proposed rule
change is consistent with Section 6(b)(4)
of the Act,6 which provides that
Exchange rules may provide for the
equitable allocation of reasonable dues,
fees, and other charges among its
Trading Permit Holders and other
persons using its facilities. Increasing
fees for electronic executions by
voluntary professionals and
professionals in equity options and
index, ETF, ETN and HOLDRs options
(excluding OEX, XEO, SPXW and
Volatility Indexes) classes is reasonable
because the new proposed fee amounts
are in line with comparable fees
assessed by other exchanges.7 Further,
this would allow the Exchange to
recoup costs associated with the growth
in professional and voluntary
professional trading volume while
continuing to assess such fees at a rate
that is lower than fees assessed to
broker-dealers for similar transactions.
Increasing fees for electronic
executions by professionals and
voluntary professionals is equitable and
not unfairly discriminatory and [sic]
because of the growth in trading volume
that requires the Exchange to
continually invest in software and
hardware (the increase in professional
and voluntary professional trading
volume is much greater than any
increases in trading volume over the
same period of time by any other type
of Exchange market participant).8
Further, professionals and voluntary
professionals will still be assessed lower
fees than broker-dealers for electronic
executions in equity options and index,
ETF, ETN and HOLDRs options
(excluding OEX, XEO, SPXW and
Volatility Indexes) classes 9 (brokerdealers, as Trading Permit Holders, have
direct access to the Exchange’s trade
engine, while professionals and
voluntary professionals do not). CBOE
Market-Makers/DPMs/e-DPMs will be
assessed lower fees of $0.20 per contract
5 15
U.S.C. 78f(b).
U.S.C. 78f(b).
7 See NOM Fee Schedule, Section 2(1).
8 Exchange professional and voluntary
professional trading volume has increased from
49,313 contract sides in February 2009 to 3,946,055
contract sides in May 2012.
9 See CBOE Fees Schedule, Section 1, which
shows that broker-dealers are assessed $0.45 per
contract for Penny Pilot transactions and, following
the submission of this proposed rule change, $0.60
per contract for non-Penny Pilot transactions.
6 15
E:\FR\FM\19JYN1.SGM
19JYN1
Agencies
[Federal Register Volume 77, Number 139 (Thursday, July 19, 2012)]
[Notices]
[Pages 42535-42539]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17552]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-67438; File No. SR-NYSEMKT-2012-19]
Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and
Immediate Effectiveness of Proposed Rule Change Establishing a Fee for
Television Distribution of the NYSE MKT Trades Data Product
July 13, 2012.
Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on July 3, 2012, NYSE MKT LLC (the ``Exchange'' or ``NYSE
MKT'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to establish a fee for television
distribution of the NYSE MKT Trades data product. The text of the
proposed rule change is available on the Exchange's Web site at
www.nyse.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 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
The Exchange proposes to establish a fee for television
distribution of the NYSE MKT Trades data product.
In 2010, the Commission approved the NYSE MKT Trades data product
and its fees.\4\ NYSE MKT Trades is a NYSE MKT-only market data service
that allows a vendor to redistribute on a real-time basis the same last
sale information that the Exchange reports under the Consolidated Tape
Association (``CTA'') Plan and the NASDAQ Unlisted Trading Privileges
Plan (``NASDAQ UTP Plan'') for including in those plans' consolidated
data streams and certain other related data elements (``NYSE MKT Last
Sale Information''). The Exchange currently charges the datafeed
recipients (a) an access fee of $750 per month (the ``Access Fee''),\5\
and (b) at the election of the vendor, either (i) a device fee for
professional subscribers of $10.00 per month or (ii) a fee based on the
number of ``Subscriber Entitlements'' (the latter two fees together,
``User Fees'').
---------------------------------------------------------------------------
\4\ See Securities Exchange Act Release No. 62187 (May 27,
2010); 75 FR 31500 (Jun. 3, 2010) (SR-NYSEAmex-2010-35) (the ``2010
Release''). Since that filing, the Exchange has changed its name
from NYSE Amex LLC to NYSE MKT LLC. See Securities Exchange Act
Release No. 67037 (May 21, 2012), 77 FR 31415 (May 25, 2012) (SR-
NYSEAmex-2012-32).
\5\ The Access Fee also covers the NYSE MKT BBO service. See the
2010 Release at 31501.
---------------------------------------------------------------------------
The Exchange proposes to add a new fee category for NYSE MKT Trades
to provide television broadcasters \6\ with an alternative enterprise
fee (the ``Broadcast Fee''). For the receipt of access to and the
ability to display the datafeeds of the NYSE MKT Trades service by a
television broadcaster, the Exchange proposes to charge a flat fee of
$5,000 per month.\7\ Broadcasters will not be required to track the
number of viewers.
---------------------------------------------------------------------------
\6\ Television broadcast can be through cable, satellite, or
traditional means.
\7\ Although the Broadcast Fee will not vary based on the amount
of time that the datafeed is displayed during the day or the number
of channels the broadcaster utilizes, it will be prorated if a
television broadcaster initiates the service during the middle of a
month.
---------------------------------------------------------------------------
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the
[[Page 42536]]
Securities Exchange Act of 1934 (the ``Act'') \8\ in general and with
Section 6(b)(4) and 6(b)(5) of the Act \9\ in particular in that it
provides an equitable allocation of reasonable fees among users and
recipients of the data and is not designed to permit unfair
discrimination among customers, issuers, and brokers. The proposed
Broadcast Fee is reasonable, equitable, and not unfairly discriminatory
because it will provide a convenient and easy-to-administer way for a
television broadcaster to display real-time NYSE MKT-only data on
television, thereby providing public investors and other market
participants who watch the broadcaster's channel with another means to
obtain current market data. The Exchange believes that the Broadcast
Fee will be attractive to television broadcasters because it will
enable them to provide market data to their viewers that will
complement the broadcasters' news reporting services without the added
administrative burden and cost of keeping track of the number of
viewers of the datafeed. The proposed distribution method differs,
however, from other distribution methods in that the data will be
available in temporary, view-only mode on television screens.\10\ Other
available distribution methods for NYSE MKT Trades and alternative data
products may allow the end-user to download and analyze last sale data
in order to make trading decisions. For these reasons, the Exchange
believes that establishing a different pricing scheme for television
broadcasters is justified. The Exchange also believes that its pricing
is reasonable in light of other similar products. By way of comparison,
for example, the television ticker display fee for CTA Network A market
data (i.e., consolidated last sale data for securities listed on the
New York Stock Exchange) is based on the number of viewers of the
ticker, and is capped at $125,000/month, and the television ticker
display fee for NASDAQ securities, similarly based on the number of
households reached by the broadcaster, is capped at $50,000. Both of
these products require the broadcaster to track the number of viewers
of the ticker.\11\
---------------------------------------------------------------------------
\8\ 15 U.S.C. 78f(b).
\9\ 15 U.S.C. 78f(b)(4) and (5).
\10\ A television broadcaster could elect to combine for
broadcast the NYSE MKT Trades data with other data available to it
for broadcast.
\11\ The Network A Rate Schedule is available at https://www.nyxdata.com/CTA. See also NASDAQ Rule 7039, which sets forth
fees for the distribution of NASDAQ Last Sale Data Products via
Television.
---------------------------------------------------------------------------
The existence of alternatives to the NYSE MKT Trades data product,
including real-time consolidated data, free delayed consolidated data,
and proprietary last sale data from other sources, ensures that the
Exchange cannot set unreasonable fees, or fees that are unreasonably
discriminatory, when vendors and subscribers can elect such
alternatives. The recent decision of the United States Court of Appeals
for the District of Columbia Circuit in NetCoalition v. SEC, No. 09-
1042 (D.C. Cir. 2010), upheld the Commission's reliance upon the
existence of competitive market mechanisms to set reasonable and
equitably allocated fees for proprietary 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.'
NetCoalition at 15 (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.' '' \12\
---------------------------------------------------------------------------
\12\ NetCoalition at 16.
---------------------------------------------------------------------------
As explained below in the Exchange's Statement on Burden on
Competition, the Exchange believes that there is substantial evidence
of competition in the marketplace for data and that the Commission can
rely upon such evidence in concluding that the fees established in this
filing are the product of competition and therefore satisfy the
relevant statutory standards.\13\
---------------------------------------------------------------------------
\13\ Section 916 of the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010 (``Dodd-Frank Act'') amended
paragraph (A) of Section 19(b)(3) of the Act, 15 U.S.C. 78s(b)(3),
to make clear that all exchange fees for market data may be filed by
exchanges on an immediately effective basis.
---------------------------------------------------------------------------
As the NetCoalition decision noted, the Commission is not required
to undertake a cost-of-service or ratemaking approach, and the Exchange
incorporates by reference into this proposed rule change its
affiliate's analysis of this topic in another recent rule filing.\14\
---------------------------------------------------------------------------
\14\ See Securities Exchange Act Release No. 63291 (Nov. 9,
2010), 75 FR 70311 (Nov. 17, 2010) (SR-NYSEArca-2010-97).
---------------------------------------------------------------------------
For these reasons, the Exchange believes that the proposed fee is
reasonable, equitable, and not unfairly discriminatory.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. An exchange's ability to
price its datafeed products is constrained by (1) Competition among
exchanges and other trading platforms that compete with one another in
a variety of dimensions, (2) the existence of inexpensive real-time
consolidated 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.
It is common for broker-dealers to further exploit this competition
by sending their order flow and transaction reports to multiple
markets, rather than providing them all to a single market. As a recent
Commission Concept Release noted, the ``current market structure can be
described as dispersed and complex'' with ``trading volume * * *
dispersed among many highly automated trading centers that compete for
order flow in the same stocks'' and ``trading centers offer[ing] a wide
range of services that are designed to attract different types of
market participants with varying trading needs.'' \15\
---------------------------------------------------------------------------
\15\ Concept Release on Equity Market Structure, Securities
Exchange Act Release No. 61358 (Jan. 14, 2010), 75 FR 3594 (Jan. 22,
2010) (File No. S7-02-10). This Concept Release included data from
the third quarter of 2009 showing that no market center traded more
than 20% of the volume of listed stocks, further evidencing the
dispersal of and competition for trading activity. Id. at 3598.
---------------------------------------------------------------------------
Competitive markets for order flow, executions, and transaction
reports provide pricing discipline for the inputs of proprietary data
products and therefore constrain markets from overpricing proprietary
market data. The U.S. Department of Justice recently acknowledged the
aggressive competition among exchanges. In announcing the abandoned bid
for NYSE Euronext by NASDAQ OMX Group Inc. and
[[Page 42537]]
IntercontinentalExchange Inc., Assistant Attorney General Christine
Varney stated that exchanges ``compete head to head to offer real-time
equity data products. These data products include the best bid and
offer of every exchange and information on each equity trade, including
the last sale.'' \16\
---------------------------------------------------------------------------
\16\ Press Release, U.S. Department of Justice, Assistant
Attorney General Christine Varney Holds Conference Call Regarding
NASDAQ OMX Group Inc. and IntercontinentalExchange Inc. Abandoning
Their Bid for NYSE Euronext (May 16, 2011), available at https://www.justice.gov/iso/opa/atr/speeches/2011/at-speech-110516.html.
---------------------------------------------------------------------------
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.
Further, 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 Exchange notes in that
respect that making the NYSE MKT Trades service available on television
at a more economical and easier to administer fee would encourage more
television broadcasters to choose to offer the datafeed and thereby
benefit public investors and other market participants who follow
market developments through that medium by providing them with a
convenient way to track price trends while watching news programs
during the course of the trading day, thereby complementing NYSE MKT
Trades offerings through other means.
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, an exchange's broker-
dealer customers view the costs of transaction executions and of data
as a unified cost of doing business with the exchange.
Similarly, in the case of products 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 certain end users. Vendors impose price restraints based upon
their business models. For example, vendors such as Bloomberg and
Thomson 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. Similarly,
television broadcasters will not elect to display NYSE MKT Trades
unless they believe it will help them attract or maintain viewers.
Other market participants have noted that the liquidity provided by
the order book, trade execution, core market data, and non-core market
data are joint products of a joint platform and have common costs.\17\
The Exchange agrees with and adopts those discussions and the arguments
therein. The Exchange also notes that the economics literature confirms
that there is no way to allocate common costs between joint products
that would shed any light on competitive or efficient pricing.\18\
---------------------------------------------------------------------------
\17\ See Securities Exchange Act Release No. 62887 (Sept. 10,
2010), 75 FR 57092, 57095 (Sept. 17, 2010) (SR-Phlx-2010-121);
Securities Exchange Act Release No. 62907 (Sept. 14, 2010), 75 FR
57314, 57317 (Sept. 20, 2010) (SR-NASDAQ-2010-110); and Securities
Exchange Act Release No. 62908 (Sept. 14, 2010) (SR-NASDAQ-2010-
111), 75 FR 57321, 57324 (Sept. 20, 2010) (``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.''); see also August 1, 2008
Comment Letter of Jeffrey S. Davis, Vice President and Deputy
General Counsel, NASDAQ OMX Group, Inc., Statement of Janusz Ordover
and Gustavo Bamberger (``because market data is both an input to and
a byproduct of executing trades on a particular platform, market
data and trade execution services are an example of `joint products'
with `joint costs.'''), attachment at pg. 4, available at
www.sec.gov/comments/34-57917/3457917-12.pdf.
\18\ See generally Mark Hirschey, Fundamentals of Managerial
Economics, at 600 (2009) (``It is important to note, however, that
although it is possible to determine the separate marginal costs of
goods produced in variable proportions, it is impossible to
determine their individual average costs. This is because common
costs are expenses necessary for manufacture of a joint product.
Common costs of production--raw material and equipment costs,
management expenses, and other overhead--cannot be allocated to each
individual by-product on any economically sound basis.* * * Any
allocation of common costs is wrong and arbitrary.''). This is not
new economic theory. See, e.g., F.W. Taussig, ``A Contribution to
the Theory of Railway Rates,'' Quarterly Journal of Economics V(4)
438, 465 (July 1891) (``Yet, surely, the division is purely
arbitrary. These items of cost, in fact, are jointly incurred for
both sorts of traffic; and I cannot share the hope entertained by
the statistician of the Commission, Professor Henry C. Adams, that
we shall ever reach a mode of apportionment that will lead to
trustworthy results.'').
---------------------------------------------------------------------------
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 an exchange's costs to the market data
portion of an exchange's joint product. Rather, all of an 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 that 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. For example, some platforms may choose to pay
rebates to attract orders, charge relatively low prices for market
information (or provide information free of charge), and charge
relatively high prices for accessing posted liquidity. Other platforms
may choose a strategy of paying lower rebates (or no rebates) to
attract orders, setting relatively high prices for market information,
and setting relatively low prices for accessing posted liquidity. 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.
The level of competition and contestability in the market is
evident in the numerous alternative venues that compete for order flow,
including 12 equities self-regulatory organization (``SRO'') markets,
as well as internalizing broker-dealers (``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.
[[Page 42538]]
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 but not limited to the Exchange, NYSE, NYSE Arca, NASDAQ OMX,
BATS, and Direct Edge.
The fact that proprietary data from ATSs, BDs, and vendors can
bypass SROs is significant in two respects. First, non-SROs can compete
directly with SROs for the production and sale of proprietary data
products. Second, because a single order or transaction report can
appear in an SRO proprietary product, a non-SRO proprietary product, or
both, the amount of data available via proprietary products is greater
in size than the actual number of orders and transaction reports that
exist in the marketplace. Because market data users can thus find
suitable substitutes for most proprietary market data products (in this
case both a CTA product and a NASDAQ proprietary product are direct
alternatives), a market that overprices its market data products stands
a high risk that users may substitute another source of market
information for its own.
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 Exchange notes that its Broadcast Fee for
NYSE MKT Trades is substantially less than the fee for a similar CTA
product.
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, TrackECN, BATS Trading and Direct Edge.
Today, BATS and Direct Edge provide data at no charge on their Web
sites in order to attract more order flow, and use market data revenue
rebates from resulting additional executions to maintain low execution
charges for its users.\19\
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\19\ This is simply a securities market-specific example of the
well-established principle that in certain circumstances more sales
at lower margins can be more profitable than fewer sales at higher
margins; this example is additional evidence that market data is an
inherent part of a market's joint platform.
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In establishing the Broadcast Fee for the NYSE MKT Trades service,
the Exchange considered the competitiveness of the market for data and
all of the implications of that competition. The Exchange believes that
it has considered all relevant factors and has not considered
irrelevant factors in order to establish fair, reasonable, and not
unreasonably discriminatory fees and an equitable allocation of fees
among all users. The existence of numerous alternatives to the
Exchange's product, including real-time consolidated data, free delayed
consolidated data, and proprietary data from other sources, ensures
that the Exchange cannot set unreasonable fees, or fees that are
unreasonably discriminatory, when vendors and subscribers can elect
these alternatives. Accordingly, the Exchange believes that the
acceptance of datafeed products 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 solicited or received with respect to the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A)\20\ of the Act and subparagraph (f)(2) of Rule 19b-
4\21\ thereunder, because it establishes a due, fee, or other charge
imposed by NYSE MKT.
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\20\ 15 U.S.C. 78s(b)(3)(A).
\21\ 17 CFR 240.19b-4(f)(2).
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At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to rule-comments@sec.gov. Please
include File Number SR-NYSEMKT-2012-19 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-NYSEMKT-2012-19. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of 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-NYSEMKT-2012-19 and should
be submitted on or before August 9, 2012.
[[Page 42539]]
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
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\22\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-17552 Filed 7-18-12; 8:45 am]
BILLING CODE 8011-01-P