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]

Download as PDF Federal Register / Vol. 77, No. 139 / Thursday, July 19, 2012 / Notices emcdonald on DSK67QTVN1PROD with NOTICES 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). VerDate Mar<15>2010 15:07 Jul 18, 2012 Jkt 226001 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. PO 00000 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 Frm 00054 Fmt 4703 Sfmt 4703 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. E:\FR\FM\19JYN1.SGM 19JYN1 42536 Federal Register / Vol. 77, No. 139 / Thursday, July 19, 2012 / Notices emcdonald on DSK67QTVN1PROD with NOTICES 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. VerDate Mar<15>2010 17:10 Jul 18, 2012 Jkt 226001 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). PO 00000 12 NetCoalition 13 Section Frm 00055 Fmt 4703 Sfmt 4703 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. E:\FR\FM\19JYN1.SGM 19JYN1 emcdonald on DSK67QTVN1PROD with NOTICES Federal Register / Vol. 77, No. 139 / Thursday, July 19, 2012 / Notices 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. VerDate Mar<15>2010 17:29 Jul 18, 2012 Jkt 226001 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 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 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.’’). E:\FR\FM\19JYN1.SGM 19JYN1 emcdonald on DSK67QTVN1PROD with NOTICES 42538 Federal Register / Vol. 77, No. 139 / Thursday, July 19, 2012 / Notices 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 VerDate Mar<15>2010 15:07 Jul 18, 2012 Jkt 226001 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). PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 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]


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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.
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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\
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    \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.
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    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\
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    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78s(b)(3)(A).
    \21\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    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
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