Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend Fee Pilot Program for NASDAQ Last Sale, 62820-62825 [2013-24545]
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Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Notices
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (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 such
filing also will be available for
inspection and copying at the principal
offices of the Exchange. All comments
received will be posted without change;
the Commission does not edit personal
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submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–CFE–
2013–005, and should be submitted on
or before November 12, 2013.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.13
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2013–24567 Filed 10–21–13; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
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[Release No. 34–70575; File No. SR–
NASDAQ–2013–126]
Self-Regulatory Organizations; The
NASDAQ Stock Market LLC; Notice of
Filing and Immediate Effectiveness of
Proposed Rule Change To Extend Fee
Pilot Program for NASDAQ Last Sale
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September 30, 2013.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b-4 thereunder,2
notice is hereby given that on
September 25, 2013, The NASDAQ
Stock Market LLC (‘‘NASDAQ’’ or the
‘‘Exchange’’) filed with the Securities
and Exchange Commission
(‘‘Commission’’) a proposed rule change
13 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b-4.
1 15
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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 the Substance
of the Proposed Rule Change
NASDAQ is proposing to extend for
three months the fee pilot pursuant to
which NASDAQ distributes the
NASDAQ Last Sale (‘‘NLS’’) market data
products. NLS allows data distributors
to have access to real-time market data
for a capped fee, enabling those
distributors to provide free access to the
data to millions of individual investors
via the internet and television.
Specifically, NASDAQ offers the
‘‘NASDAQ Last Sale for NASDAQ’’ and
‘‘NASDAQ Last Sale for NYSE/NYSE
MKT’’ data feeds containing last sale
activity in U.S. equities within the
NASDAQ Market Center and reported to
the FINRA/NASDAQ Trade Reporting
Facility (‘‘FINRA/NASDAQ TRF’’),
which is jointly operated by NASDAQ
and the Financial Industry Regulatory
Authority (‘‘FINRA’’). The purpose of
this proposal is to extend the existing
pilot program for three months, from
October 1, 2013 to December 31, 2013.
This pilot program supports the
aspiration of Regulation NMS to
increase the availability of proprietary
data by allowing market forces to
determine the amount of proprietary
market data information that is made
available to the public and at what
price. During the pilot period, the
program has vastly increased the
availability of NASDAQ proprietary
market data to individual investors.
Based upon data from NLS distributors,
NASDAQ believes that since its launch
in July 2008, the NLS data has been
viewed by millions of investors on Web
sites operated by Google, Interactive
Data, and Dow Jones, among others.
The text of the proposed rule change
is below. Proposed new language is in
italics; proposed deletions are in
brackets.
*
*
*
*
*
7039. NASDAQ Last Sale Data Feeds
(a) For a three month pilot period
commencing on [July] October 1, 2013,
NASDAQ shall offer two proprietary
data feeds containing real-time last sale
information for trades executed on
NASDAQ or reported to the NASDAQ/
FINRA Trade Reporting Facility.
(1)–(2) No change.
(b)–(c) No change.
*
*
*
*
*
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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
Statutory Basis for, the Proposed Rule
Change
1. Purpose
Prior to the launch of NLS, public
investors that wished to view market
data to monitor their portfolios
generally had two choices: (1) pay for
real-time market data or (2) use free data
that is 15 to 20 minutes delayed. To
increase consumer choice, NASDAQ
proposed a pilot to offer access to realtime market data to data distributors for
a capped fee, enabling those distributors
to disseminate the data at no cost to
millions of internet users and television
viewers. NASDAQ now proposes a
three-month extension of that pilot
program, subject to the same fee
structure as is applicable today.
NLS consists of two separate ‘‘Level
1’’ products containing last sale activity
within the NASDAQ market and
reported to the jointly-operated FINRA/
NASDAQ TRF. First, the ‘‘NASDAQ
Last Sale for NASDAQ’’ data product is
a real-time data feed that provides realtime last sale information including
execution price, volume, and time for
executions occurring within the
NASDAQ system as well as those
reported to the FINRA/NASDAQ TRF.
Second, the ‘‘NASDAQ Last Sale for
NYSE/NYSE MKT’’ data product
provides real-time last sale information
including execution price, volume, and
time for NYSE- and NYSE MKTsecurities executions occurring within
the NASDAQ system as well as those
reported to the FINRA/NASDAQ TRF.
By contrast, the securities information
processors (‘‘SIPs’’) that provide ‘‘core’’
data consolidate last sale information
from all exchanges and trade reporting
facilities (‘‘TRFs’’). Thus, NLS replicates
a subset of the information provided by
the SIPs.
NASDAQ established two different
pricing models, one for clients that are
able to maintain username/password
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entitlement systems and/or quote
counting mechanisms to account for
usage, and a second for those that are
not. Firms with the ability to maintain
username/password entitlement systems
and/or quote counting mechanisms are
eligible for a specified fee schedule for
the NASDAQ Last Sale for NASDAQ
Product and a separate fee schedule for
the NASDAQ Last Sale for NYSE/NYSE
MKT Product. Firms that are unable to
maintain username/password
entitlement systems and/or quote
counting mechanisms also have
multiple options for purchasing the
NASDAQ Last Sale data. These firms
choose between a ‘‘Unique Visitor’’
model for internet delivery or a
‘‘Household’’ model for television
delivery. Unique Visitor and Household
populations must be reported monthly
and must be validated by a third-party
vendor or ratings agency approved by
NASDAQ at NASDAQ’s sole discretion.
In addition, to reflect the growing
confluence between these media outlets,
NASDAQ offered a reduction in fees
when a single distributor distributes
NASDAQ Last Sale Data Products via
multiple distribution mechanisms.
NASDAQ also established a cap on
the monthly fee, currently set at $50,000
per month, for all NASDAQ Last Sale
products. The fee cap enables NASDAQ
to compete effectively against other
exchanges that also offer last sale data
for purchase or at no charge.
As with the distribution of other
NASDAQ proprietary products, all
distributors of the NASDAQ Last Sale
for NASDAQ and/or NASDAQ Last Sale
for NYSE/NYSE MKT products pay a
single $1,500/month NASDAQ Last Sale
Distributor Fee in addition to any
applicable usage fees. The $1,500
monthly fee applies to all distributors
and does not vary based on whether the
distributor distributes the data
internally or externally or distributes
the data via both the internet and
television.
2. Statutory Basis
NASDAQ believes that the proposed
rule change is consistent with the
provisions of Section 6 of the Act,3 in
general, and with Section 6(b)(4) of the
Act,4 in particular, in that it provides an
equitable allocation of reasonable fees
among users and recipients of the data.
In adopting Regulation NMS, the
Commission granted self-regulatory
organizations (‘‘SROs’’) and brokerdealers (‘‘BDs’’) increased authority and
flexibility to offer new and unique
market data to the public. It was
U.S.C. 78f.
4 15 U.S.C. 78f(b)(4).
21:08 Oct 21, 2013
[E]fficiency is promoted when brokerdealers who do not need the data beyond the
prices, sizes, market center identifications of
the NBBO and consolidated last sale
information are not required to receive (and
pay for) such data. The Commission also
believes that efficiency is promoted when
broker-dealers may choose to receive (and
pay for) additional market data based on their
own internal analysis of the need for such
data.5
By removing unnecessary regulatory
restrictions on the ability of exchanges
to sell their own data, Regulation NMS
advanced the goals of the Act and the
principles reflected in its legislative
history. If the free market should
determine whether proprietary data is
sold to BDs at all, it follows that the
price at which such data is sold should
be set by the market as well.
The decision of the United States
Court of Appeals for the District of
Columbia Circuit in NetCoalition v.
SEC, 615 F.3d 525 (D.C. Cir. 2010)
(‘‘NetCoalition I’’), upheld the
Commission’s reliance upon
competitive markets to set reasonable
and equitably allocated fees for market
data. ‘‘In fact, the legislative history
indicates that the Congress intended
that the market system ‘evolve through
the interplay of competitive forces as
unnecessary regulatory restrictions are
removed’ and that the SEC wield its
regulatory power ‘in those situations
where competition may not be
sufficient,’ such as in the creation of a
‘consolidated transactional reporting
system.’’’ NetCoalition I, at 535 (quoting
H.R. Rep. No. 94–229, at 92 (1975), as
reprinted in 1975 U.S.C.C.A.N. 321,
323). The court agreed with the
Commission’s conclusion that
‘‘Congress intended that ‘competitive
forces should dictate the services and
practices that constitute the U.S.
national market system for trading
equity securities.’ ’’ 6
The court in NetCoalition I, while
upholding the Commission’s conclusion
5 Securities Exchange Act Release No. 51808
(June 9, 2005), 70 FR 37496 (June 29, 2005).
6 NetCoalition I, at 535.
3 15
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believed that this authority would
expand the amount of data available to
consumers, and also spur innovation
and competition for the provision of
market data.
NASDAQ believes that its NASDAQ
Last Sale market data products are
precisely the sort of market data product
that the Commission envisioned when it
adopted Regulation NMS. The
Commission concluded that Regulation
NMS—by lessening regulation of the
market in proprietary data—would itself
further the Act’s goals of facilitating
efficiency and competition:
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that competitive forces may be relied
upon to establish the fairness of prices,
nevertheless concluded that the record
in that case did not adequately support
the Commission’s conclusions as to the
competitive nature of the market for
NYSE Arca’s data product at issue in
that case. As explained below in
NASDAQ’s Statement on Burden on
Competition, however, NASDAQ
believes that there is substantial
evidence of competition in the
marketplace for data that was not in the
record in the NetCoalition I case, and
that the Commission is entitled to rely
upon such evidence in concluding that
the fees established in this filing are the
product of competition, and therefore in
accordance with the relevant statutory
standards.7 Moreover, NASDAQ further
notes that the product at issue in this
filing—a NASDAQ last sale data
product that replicates a subset of the
information available through ‘‘core’’
data products whose fees have been
reviewed and approved by the SEC—is
quite different from the NYSE Arca
depth-of-book data product at issue in
NetCoalition I. Accordingly, any
findings of the court with respect to that
product may not be relevant to the
product at issue in this filing.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
NASDAQ does not believe that the
proposed rule change will result in any
burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act, as amended.
NASDAQ’s ability to price its Last Sale
Data Products is constrained by (1)
competition between exchanges and
other trading platforms that compete
with each other in a variety of
dimensions; (2) the existence of
inexpensive real-time consolidated data
and market-specific data and free
delayed consolidated data; and (3) the
inherent contestability of the market for
proprietary last sale data.
The market for proprietary last sale
data products is currently competitive
and inherently contestable because
there is fierce competition for the inputs
necessary to the creation of proprietary
data and strict pricing discipline for the
proprietary products themselves.
Numerous exchanges compete with
each other for listings, trades, and
market data itself, providing virtually
7 It should also be noted that Section 916 of the
Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010 (‘‘Dodd-Frank Act’’) has
amended paragraph (A) of Section 19(b)(3) of the
Act, 15 U.S.C. 78s(b)(3), to make it clear that all
exchange fees, including fees for market data, may
be filed by exchanges on an immediately effective
basis.
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limitless opportunities for entrepreneurs
who wish to produce and distribute
their own market data. This proprietary
data is produced by each individual
exchange, as well as other entities, in a
vigorously competitive market.
Transaction execution and proprietary
data products are complementary in that
market data is both an input and a
byproduct of the execution service. In
fact, market data and trade execution are
a paradigmatic example of joint
products with joint costs. The decision
whether and on which platform to post
an order will depend on the attributes
of the platform where the order can be
posted, including the execution fees,
data quality and price, and distribution
of its data products. Without trade
executions, exchange data products
cannot exist. Moreover, data products
are valuable to many end users only
insofar as they provide information that
end users expect will assist them or
their customers in making trading
decisions.
The costs of producing market data
include not only the costs of the data
distribution infrastructure, but also the
costs of designing, maintaining, and
operating the exchange’s transaction
execution platform and the cost of
regulating the exchange to ensure its fair
operation and maintain investor
confidence. The total return that a
trading platform earns reflects the
revenues it receives from both products
and the joint costs it incurs. Moreover,
the operation of the exchange is
characterized by high fixed costs and
low marginal costs. This cost structure
is common in content and content
distribution industries such as software,
where developing new software
typically requires a large initial
investment (and continuing large
investments to upgrade the software),
but once the software is developed, the
incremental cost of providing that
software to an additional user is
typically small, or even zero (e.g., if the
software can be downloaded over the
internet after being purchased).8 In
NASDAQ’s case, it is costly to build and
maintain a trading platform, but the
incremental cost of trading each
additional share on an existing platform,
or distributing an additional instance of
data, is very low. Market information
and executions are each produced
jointly (in the sense that the activities of
trading and placing orders are the
source of the information that is
distributed) and are each subject to
8 See William J. Baumol and Daniel G. Swanson,
‘‘The New Economy and Ubiquitous Competitive
Price Discrimination: Identifying Defensible Criteria
of Market Power,’’ Antitrust Law Journal, Vol. 70,
No. 3 (2003).
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significant scale economies. In such
cases, marginal cost pricing is not
feasible because if all sales were priced
at the margin, NASDAQ would be
unable to defray its platform costs of
providing the joint products.
An exchange’s BD customers view the
costs of transaction executions and of
data as a unified cost of doing business
with the exchange. A BD will direct
orders to a particular exchange only if
the expected revenues from executing
trades on the exchange exceed net
transaction execution costs and the cost
of data that the BD chooses to buy to
support its trading decisions (or those of
its customers). The choice of data
products is, in turn, a product of the
value of the products in making
profitable trading decisions. If the cost
of the product exceeds its expected
value, the BD will choose not to buy it.
Moreover, as a BD chooses to direct
fewer orders to a particular exchange,
the value of the product to that BD
decreases, for two reasons. First, the
product will contain less information,
because executions of the BD’s trading
activity will not be reflected in it.
Second, and perhaps more important,
the product will be less valuable to that
BD because it does not provide
information about the venue to which it
is directing its orders. Data from the
competing venue to which the BD is
directing orders will become
correspondingly more valuable.
Similarly, in the case of products such
as NLS that are distributed through
market data vendors, the vendors
provide price discipline for proprietary
data products because they control the
primary means of access to end users.
Vendors impose price restraints based
upon their business models. For
example, vendors such as Bloomberg
and Reuters that assess a surcharge on
data they sell may refuse to offer
proprietary products that end users will
not purchase in sufficient numbers.
Internet portals, such as Google, impose
a discipline by providing only data that
will enable them to attract ‘‘eyeballs’’
that contribute to their advertising
revenue. Retail BDs, such as Schwab
and Fidelity, offer their customers
proprietary data only if it promotes
trading and generates sufficient
commission revenue. Although the
business models may differ, these
vendors’ pricing discipline is the same:
they can simply refuse to purchase any
proprietary data product that fails to
provide sufficient value. NASDAQ and
other producers of proprietary data
products must understand and respond
to these varying business models and
pricing disciplines in order to market
proprietary data products successfully.
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Moreover, NASDAQ believes that
products such as NLS can enhance
order flow to NASDAQ by providing
more widespread distribution of
information about transactions in real
time, thereby encouraging wider
participation in the market by investors
with access to the internet or television.
Conversely, the value of such products
to distributors and investors decreases if
order flow falls, because the products
contain less content.
Analyzing the cost of market data
distribution in isolation from the cost of
all of the inputs supporting the creation
of market data will inevitably
underestimate the cost of the data. Thus,
because it is impossible to create data
without a fast, technologically robust,
and well-regulated execution system,
system costs and regulatory costs affect
the price of market data. It would be
equally misleading, however, to
attribute all of the exchange’s costs to
the market data portion of an exchange’s
joint product. Rather, all of the
exchange’s costs are incurred for the
unified purposes of attracting order
flow, executing and/or routing orders,
and generating and selling data about
market activity. The total return that an
exchange earns reflects the revenues it
receives from the joint products and the
total costs of the joint products.
Competition among trading platforms
can be expected to constrain the
aggregate return each platform earns
from the sale of its joint products, but
different platforms may choose from a
range of possible, and equally
reasonable, pricing strategies as the
means of recovering total costs.
NASDAQ pays rebates to attract orders,
charges relatively low prices for market
information and charges relatively high
prices for accessing posted liquidity.
Other platforms may choose a strategy
of paying lower liquidity rebates to
attract orders, setting relatively low
prices for accessing posted liquidity,
and setting relatively high prices for
market information. Still others may
provide most data free of charge and
rely exclusively on transaction fees to
recover their costs. Finally, some
platforms may incentivize use by
providing opportunities for equity
ownership, which may allow them to
charge lower direct fees for executions
and data.
In this environment, there is no
economic basis for regulating maximum
prices for one of the joint products in an
industry in which suppliers face
competitive constraints with regard to
the joint offering. Such regulation is
unnecessary because an ‘‘excessive’’
price for one of the joint products will
ultimately have to be reflected in lower
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prices for other products sold by the
firm, or otherwise the firm will
experience a loss in the volume of its
sales that will be adverse to its overall
profitability. In other words, an increase
in the price of data will ultimately have
to be accompanied by a decrease in the
cost of executions, or the volume of both
data and executions will fall.
The level of competition and
contestability in the market is evident in
the numerous alternative venues that
compete for order flow, including
thirteen SRO markets, as well as
internalizing BDs and various forms of
alternative trading systems (‘‘ATSs’’),
including dark pools and electronic
communication networks (‘‘ECNs’’).
Each SRO market competes to produce
transaction reports via trade executions,
and two FINRA-regulated TRFs compete
to attract internalized transaction
reports. It is common for BDs to further
and exploit this competition by sending
their order flow and transaction reports
to multiple markets, rather than
providing them all to a single market.
Competitive markets for order flow,
executions, and transaction reports
provide pricing discipline for the inputs
of proprietary data products.
The large number of SROs, TRFs, BDs,
and ATSs that currently produce
proprietary data or are currently capable
of producing it provides further pricing
discipline for proprietary data products.
Each SRO, TRF, ATS, and BD is
currently permitted to produce
proprietary data products, and many
currently do or have announced plans to
do so, including NASDAQ, NYSE,
NYSE MKT, NYSE Arca, BATS, and
Direct Edge.
Any ATS or BD can combine with any
other ATS, BD, or multiple ATSs or BDs
to produce joint proprietary data
products. Additionally, order routers
and market data vendors can facilitate
single or multiple BDs’ production of
proprietary data products. The potential
sources of proprietary products are
virtually limitless.
The fact that proprietary data from
ATSs, BDs, and vendors can by-pass
SROs is significant in two respects.
First, non-SROs can compete directly
with SROs for the production and sale
of proprietary data products, as BATS
and Arca did before registering as
exchanges by publishing proprietary
book data on the internet. Second,
because a single order or transaction
report can appear in a core data product,
an SRO proprietary product, and/or a
non-SRO proprietary product, the data
available in proprietary products is
exponentially greater than the actual
number of orders and transaction
reports that exist in the marketplace.
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Indeed, in the case of NLS, the data
provided through that product appears
both in (i) real-time core data products
offered by the SIPs for a fee, and (ii) free
SIP data products with a 15-minute time
delay, and finds a close substitute in
last-sale products of competing venues.
In addition to the competition and
price discipline described above, the
market for proprietary data products is
also highly contestable because market
entry is rapid, inexpensive, and
profitable. The history of electronic
trading is replete with examples of
entrants that swiftly grew into some of
the largest electronic trading platforms
and proprietary data producers:
Archipelago, Bloomberg Tradebook,
Island, RediBook, Attain, TracECN,
BATS Trading and Direct Edge. A
proliferation of dark pools and other
ATSs operate profitably with
fragmentary shares of consolidated
market volume.
Regulation NMS, by deregulating the
market for proprietary data, has
increased the contestability of that
market. While BDs have previously
published their proprietary data
individually, Regulation NMS
encourages market data vendors and
BDs to produce proprietary products
cooperatively in a manner never before
possible. Multiple market data vendors
already have the capability to aggregate
data and disseminate it on a profitable
scale, including Bloomberg and
Thomson Reuters.
Moreover, consolidated data provides
two additional measures of pricing
discipline for proprietary data products
that are a subset of the consolidated data
stream. First, the consolidated data is
widely available in real-time at $1 per
month for non-professional users.
Second, consolidated data is also
available at no cost with a 15- or 20minute delay. Because consolidated
data contains marketwide information,
it effectively places a cap on the fees
assessed for proprietary data (such as
last sale data) that is simply a subset of
the consolidated data. The mere
availability of low-cost or free
consolidated data provides a powerful
form of pricing discipline for
proprietary data products that contain
data elements that are a subset of the
consolidated data, by highlighting the
optional nature of proprietary products.
The competitive nature of the market
for products such as NLS is borne out
by the performance of the market. In
May 2008, the internet portal Yahoo!
began offering its Web site viewers realtime last sale data (as well as best quote
data) provided by BATS. In response, in
June 2008, NASDAQ launched NLS,
which was initially subject to an
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‘‘enterprise cap’’ of $100,000 for
customers receiving only one of the NLS
products, and $150,000 for customers
receiving both products. The majority of
NASDAQ’s sales were at the capped
level. In early 2009, BATS expanded its
offering of free data to include depth-ofbook data. Also in early 2009, NYSE
Arca announced the launch of a
competitive last sale product with an
enterprise price of $30,000 per month.
In response, NASDAQ combined the
enterprise cap for the NLS products and
reduced the cap to $50,000 (i.e., a
reduction of $100,000 per month).
Although each of these products offers
only a specific subset of data available
from the SIPs, NASDAQ believes that
the products are viewed as substitutes
for each other and for core last-sale data,
rather than as products that must be
obtained in tandem. For example, while
Yahoo! and Google now both
disseminate NASDAQ’s product, several
other major content providers, including
MSN and Morningstar, use the BATS
product.
In this environment, a supercompetitive increase in the fees charged
for either transactions or data has the
potential to impair revenues from both
products. ‘‘No one disputes that
competition for order flow is ‘fierce’.’’
NetCoalition I at 24. The existence of
fierce competition for order flow
implies a high degree of price sensitivity
on the part of BDs with order flow, since
they may readily reduce costs by
directing orders toward the lowest-cost
trading venues. A BD that shifted its
order flow from one platform to another
in response to order execution price
differentials would both reduce the
value of that platform’s market data and
reduce its own need to consume data
from the disfavored platform. If a
platform increases its market data fees,
the change will affect the overall cost of
doing business with the platform, and
affected BDs will assess whether they
can lower their trading costs by
directing orders elsewhere and thereby
lessening the need for the more
expensive data. Similarly, increases in
the cost of NLS would impair the
willingness of distributors to take a
product for which there are numerous
alternatives, impacting NLS data
revenues, the value of NLS as a tool for
attracting order flow, and ultimately, the
volume of orders routed to NASDAQ
and the value of its other data products.
In establishing the price for the
NASDAQ Last Sale Products, NASDAQ
considered the competitiveness of the
market for last sale data and all of the
implications of that competition.
NASDAQ believes that it has considered
all relevant factors and has not
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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 NLS, including real-time
consolidated data, free delayed
consolidated data, and proprietary data
from other sources ensures that
NASDAQ cannot set unreasonable fees,
or fees that are unreasonably
discriminatory, without losing business
to these alternatives. Accordingly,
NASDAQ believes that the acceptance
of the NLS product in the marketplace
demonstrates the consistency of these
fees with applicable statutory standards.
sroberts on DSK5SPTVN1PROD with FRONT MATTER
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
Three comment letters were filed
regarding the proposed rule change as
originally published for comment.
NASDAQ responded to these comments
in a letter dated December 13, 2007.
Both the comment letters and
NASDAQ’s response are available on
the SEC Web site at https://www.sec.gov/
comments/sr-nasdaq-2006-060/
nasdaq2006060.shtml. In addition, in
response to prior filings to extend the
NLS pilot,9 the Securities Industry and
Financial Markets Association
(‘‘SIFMA’’) and/or NetCoalition10 filed
comment letters contending that the
SEC should suspend and institute
disapproval proceedings with respect to
the filing. SIFMA and NetCoalition had
also filed petitions seeking review by
the United States Court of Appeals for
the District of Columbia Circuit with
respect to the NLS pricing pilots in
effect from July 1, 2011 through
September 30, 2011, from October 1,
2011 through December 31, 2011, from
July 1, 2012 through September 30,
2012, and from January 1, 2013 through
March 31, 2013. These appeals were
9 Securities Exchange Act Release Nos. 69245
(March 27, 2013), 78 FR 19772 (April 2, 2013) (SR–
NASDAQ–2013–053); 68568 (January 3, 2013), 78
FR 1910 (January 9, 2013) (SR–NASDAQ–2012–
145); 67376 (July 9, 2012), 77 FR 41467 (July 13,
2012) (SR–NASDAQ–2012–078); 65488 (October 5,
2011), 76 FR 63334 (October 21, 2011) (SR–
NASDAQ–2011–132); 64856 (July 12, 2011), 76 FR
41845 (July 15, 2011) (SR–NASDAQ–2011–092);
64188 (April 5, 2011), 76 FR 20054 (April 11, 2011)
(SR–NASDAQ–2011–044).
10 It was recently reported that NetCoalition is
terminating its operations. See Martinez,
‘‘NetCoalition Winds Down Operations’’ (available
at https://thehill.com/blogs/hillicon-valley/
technology/263793-netcoalition-winds-downoperations). Accordingly, NASDAQ notes that the
most recent comment letter was filed solely by
SIFMA. See Letter from Ira D. Hammerman, Senior
Managing Director & General Counsel, SIFMA, to
Elizabeth M. Murphy, Secretary, Commission (April
23, 2013).
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stayed pending resolution of the
consolidated case NetCoalition v. SEC,
Nos. 10–1421, 10–1422, 11–1001, and
11–1065 (‘‘NetCoalition II’’). On April
30, 2013, the court issued a decision
dismissing NetCoalition II, concluding
that it lacked jurisdiction to entertain
the case. Subsequently, the court issued
orders dismissing each of the pending
petitions seeking review of prior
extensions of the NLS pricing pilot. On
May 30, 2013, SIFMA filed with the
Commission an ‘‘Application for an
Order Setting Aside Rule Changes of
Certain Self-Regulatory Organizations
Limiting Access to their Services’’ that
purports to challenge prior filings under
Section 19(d) and (f) of the Act.11
Pursuant to a Commission procedural
order, interested parties have recently
completed submission of briefs to the
Commission regarding appropriate
procedures and other threshold
questions.
It appears to NASDAQ that SIFMA’s
contentions in this new proceeding are
similar to the contentions in its
numerous prior comment letters, which
have repeatedly argued that market data
fees are improper unless established
through public utility-style rate-making
proceedings that are nowhere
contemplated by the Act. In making its
arguments, SIFMA has sought to rely
upon NetCoalition I, while repeatedly
mischaracterizing the import of that
case. Specifically, the court made
findings about the extent of the
Commission’s record in support of
determinations about a depth-of-book
product offered by NYSE Arca. In
making this limited finding, the court
nevertheless squarely rejected
contentions that cost-based review of
market data fees was required by the
Act:
The petitioners believe that the SEC’s
market-based approach is prohibited under
the Exchange Act because the Congress
intended ‘‘fair and reasonable’’ to be
determined using a cost-based approach. The
SEC counters that, because it has statutorilygranted flexibility in evaluating market data
fees, its market-based approach is fully
consistent with the Exchange Act. We agree
with the SEC.12
While the court noted that cost data
could sometimes be relevant in
determining the reasonableness of fees,
it acknowledged that submission of cost
data may be inappropriate where there
are ‘‘difficulties in calculating the direct
11 Admin. Proc. File No. 3–15351. See also
Admin Proc. File No. 13–15350 (similar proceeding
with respect to NYSEArca data product). As with
prior SIFMA challenges, the pendency of SIFMA’s
new action should in no way affect the continuation
of the pilot for NASDAQ Last Sale.
12 NetCoalition I, 615 F.3d at 534.
PO 00000
Frm 00242
Fmt 4703
Sfmt 4703
costs . . . of market data,’’ id. at 539.
That is the case here, due to the fact that
the fixed costs of market data
production are inseparable from the
fixed costs of providing a trading
platform, and the marginal costs of
market data production are minimal.13
Because the costs of providing
execution services and market data are
not unique to either of the provided
services, there is no meaningful way to
allocate these costs among the two
‘‘joint products’’—and any attempt to do
so would result in inherently arbitrary
cost allocations.14
SIFMA further contended that prior
filings lacked evidence supporting a
conclusion that the market for NLS is
competitive, asserting that arguments
about competition for order flow and
substitutability were rejected in
NetCoalition I. While the court did
determine that the record before it was
not sufficient to allow it to endorse
those theories on the facts of that case,
the court did not itself make any
conclusive findings about the actual
presence or absence of competition or
the accuracy of these theories: rather, it
simply made a finding about the state of
the SEC’s record. Moreover, analysis
about competition in the market for
depth-of-book data is only tangentially
relevant to the market for last sale data.
As discussed above and in prior filings,
perfect and partial substitutes for NLS
exist in the form of real-time core
market data, free delayed core market
data, and the last sale products of
competing venues; additional
competitive entry is possible; and
evidence of competition is readily
apparent in the pricing behavior of the
venues offering last sale products and
the consumption patterns of their
customers. Thus, although NASDAQ
believes that the competitive nature of
the market for all market data, including
depth-of-book data, will ultimately be
established, SIFMA’s submissions have
not only mischaracterized the
13 Because the fees charged for products must
cover these fixed costs, pricing at marginal cost is
impossible.
14 The court also explicitly acknowledged that the
‘‘joint product’’ theory set forth by NASDAQ’s
economic experts in NetCoalition I (and also
described in this filing) could explain the
competitive dynamic of the market and explain
why consideration of cost data would be
unavailing. Indeed, the Commission relied on that
theory before the D.C. Circuit, but the court
declined to reach the question because the
Commission raised it for the first time on appeal.
Id. at 541 n.16. For the purpose of providing a
complete explanation of the theory, NASDAQ is
further submitting as Exhibit 3 to this filing a study
that was submitted to the Commission in SR–
NASDAQ–2011–010. See Statement of Janusz
Ordover and Gustavo Bamberger at 2–17 (December
29, 2010).
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NetCoalition I decision, but have also
failed to address the characteristics of
the product at issue and the evidence
already presented.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become
effective pursuant to Section
19(b)(3)(A)(ii) of the Act.15 At any time
within 60 days of the filing of the
proposed rule change, the Commission
summarily may temporarily suspend
such rule change if it appears to the
Commission that such action is
necessary or appropriate in the public
interest, for the protection of investors,
or otherwise in furtherance of the
purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
sroberts on DSK5SPTVN1PROD with FRONT MATTER
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–
NASDAQ–2013–126 on the subject line.
Paper Comments
• Send paper comments in triplicate
to Elizabeth M. Murphy, Secretary,
Securities and Exchange Commission,
100 F Street NE., Washington, DC
20549–1090.
All submissions should refer to File
Number SR–NASDAQ–2013–126. 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
15 15
U.S.C. 78s(b)(3)(A)(ii).
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21:08 Oct 21, 2013
Jkt 232001
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 such
filing also will be available for
inspection and copying at the principal
office of NASDAQ. All comments
received will be posted without change;
the Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–
NASDAQ–2013–126 and should be
submitted on or before November 12,
2013.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.16
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2013–24545 Filed 10–21–13; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–70697; File No. SR–NYSE–
2013–69]
Self-Regulatory Organizations; New
York Stock Exchange LLC; Notice of
Filing and Immediate Effectiveness of
Proposed Rule Change for a
Temporary Suspension of Those
Aspects of Rules 36.20 and 36.21 That
Would Not Permit Floor Brokers To
Use Personal Portable Phone Devices
on The Trading Floor Due to the
Unavailability of Exchange-Provided
Cell Phones Beginning on October 10,
2013 Until the Earlier of When Cell
Phone Service Is Restored or October
11, 2013
October 16, 2013.
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 October
10, 2013, New York Stock Exchange
LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed
with the Securities and Exchange
Commission (the ‘‘Commission’’) the
proposed rule change as described in
Items I and II 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.
16 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
PO 00000
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Sfmt 4703
62825
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes a temporary
suspension of those aspects of Rules
36.20 and 36.21 that would not permit
Floor brokers to use personal portable
phone devices on the Trading Floor due
to the unavailability of Exchangeprovided cell phones beginning on
October 10, 2013 until the earlier of
when cell phone service is restored or
October 11, 2013. 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
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to temporarily
suspend those aspects of Rules 36.20
and 36.21 that would not permit Floor
brokers to use personal portable phone
devices on the Trading Floor.4 As
proposed, all other aspects of Rule 36
remain applicable and the temporary
suspensions of the applicable Rule 36
requirements are in effect beginning
October 10, 2013 when the outage
began, and remain in place until the
earlier of when phone service is restored
or close of business Friday, October 11,
2013.5
On October 10, 2013, the third-party
carrier that provides service for the
Exchange-provided cell phones
experienced an issue that affected
Exchange authorized and provided
4 Pursuant to Rule 6A, the Trading Floor is
defined as the restricted-access physical areas
designated by the Exchange for the trading of
securities.
5 The Exchange provided Floor brokers with
notice of this rule filing, including the applicable
recordkeeping and other requirements related to
using personal cell phones during the temporary
suspension of Rule 36.
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]]>Agencies
[Federal Register Volume 78, Number 204 (Tuesday, October 22, 2013)]
[Notices]
[Pages 62820-62825]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-24545]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-70575; File No. SR-NASDAQ-2013-126]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Extend Fee Pilot Program for NASDAQ Last Sale
September 30, 2013.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on September 25, 2013, The NASDAQ Stock Market LLC (``NASDAQ'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') a 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.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change
NASDAQ is proposing to extend for three months the fee pilot
pursuant to which NASDAQ distributes the NASDAQ Last Sale (``NLS'')
market data products. NLS allows data distributors to have access to
real-time market data for a capped fee, enabling those distributors to
provide free access to the data to millions of individual investors via
the internet and television. Specifically, NASDAQ offers the ``NASDAQ
Last Sale for NASDAQ'' and ``NASDAQ Last Sale for NYSE/NYSE MKT'' data
feeds containing last sale activity in U.S. equities within the NASDAQ
Market Center and reported to the FINRA/NASDAQ Trade Reporting Facility
(``FINRA/NASDAQ TRF''), which is jointly operated by NASDAQ and the
Financial Industry Regulatory Authority (``FINRA''). The purpose of
this proposal is to extend the existing pilot program for three months,
from October 1, 2013 to December 31, 2013.
This pilot program supports the aspiration of Regulation NMS to
increase the availability of proprietary data by allowing market forces
to determine the amount of proprietary market data information that is
made available to the public and at what price. During the pilot
period, the program has vastly increased the availability of NASDAQ
proprietary market data to individual investors. Based upon data from
NLS distributors, NASDAQ believes that since its launch in July 2008,
the NLS data has been viewed by millions of investors on Web sites
operated by Google, Interactive Data, and Dow Jones, among others.
The text of the proposed rule change is below. Proposed new
language is in italics; proposed deletions are in brackets.
* * * * *
7039. NASDAQ Last Sale Data Feeds
(a) For a three month pilot period commencing on [July] October 1,
2013, NASDAQ shall offer two proprietary data feeds containing real-
time last sale information for trades executed on NASDAQ or reported to
the NASDAQ/FINRA Trade Reporting Facility.
(1)-(2) No change.
(b)-(c) No change.
* * * * *
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
Prior to the launch of NLS, public investors that wished to view
market data to monitor their portfolios generally had two choices: (1)
pay for real-time market data or (2) use free data that is 15 to 20
minutes delayed. To increase consumer choice, NASDAQ proposed a pilot
to offer access to real-time market data to data distributors for a
capped fee, enabling those distributors to disseminate the data at no
cost to millions of internet users and television viewers. NASDAQ now
proposes a three-month extension of that pilot program, subject to the
same fee structure as is applicable today.
NLS consists of two separate ``Level 1'' products containing last
sale activity within the NASDAQ market and reported to the jointly-
operated FINRA/NASDAQ TRF. First, the ``NASDAQ Last Sale for NASDAQ''
data product is a real-time data feed that provides real-time last sale
information including execution price, volume, and time for executions
occurring within the NASDAQ system as well as those reported to the
FINRA/NASDAQ TRF. Second, the ``NASDAQ Last Sale for NYSE/NYSE MKT''
data product provides real-time last sale information including
execution price, volume, and time for NYSE- and NYSE MKT-securities
executions occurring within the NASDAQ system as well as those reported
to the FINRA/NASDAQ TRF. By contrast, the securities information
processors (``SIPs'') that provide ``core'' data consolidate last sale
information from all exchanges and trade reporting facilities
(``TRFs''). Thus, NLS replicates a subset of the information provided
by the SIPs.
NASDAQ established two different pricing models, one for clients
that are able to maintain username/password
[[Page 62821]]
entitlement systems and/or quote counting mechanisms to account for
usage, and a second for those that are not. Firms with the ability to
maintain username/password entitlement systems and/or quote counting
mechanisms are eligible for a specified fee schedule for the NASDAQ
Last Sale for NASDAQ Product and a separate fee schedule for the NASDAQ
Last Sale for NYSE/NYSE MKT Product. Firms that are unable to maintain
username/password entitlement systems and/or quote counting mechanisms
also have multiple options for purchasing the NASDAQ Last Sale data.
These firms choose between a ``Unique Visitor'' model for internet
delivery or a ``Household'' model for television delivery. Unique
Visitor and Household populations must be reported monthly and must be
validated by a third-party vendor or ratings agency approved by NASDAQ
at NASDAQ's sole discretion. In addition, to reflect the growing
confluence between these media outlets, NASDAQ offered a reduction in
fees when a single distributor distributes NASDAQ Last Sale Data
Products via multiple distribution mechanisms.
NASDAQ also established a cap on the monthly fee, currently set at
$50,000 per month, for all NASDAQ Last Sale products. The fee cap
enables NASDAQ to compete effectively against other exchanges that also
offer last sale data for purchase or at no charge.
As with the distribution of other NASDAQ proprietary products, all
distributors of the NASDAQ Last Sale for NASDAQ and/or NASDAQ Last Sale
for NYSE/NYSE MKT products pay a single $1,500/month NASDAQ Last Sale
Distributor Fee in addition to any applicable usage fees. The $1,500
monthly fee applies to all distributors and does not vary based on
whether the distributor distributes the data internally or externally
or distributes the data via both the internet and television.
2. Statutory Basis
NASDAQ believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\3\ in general, and with Section
6(b)(4) of the Act,\4\ in particular, in that it provides an equitable
allocation of reasonable fees among users and recipients of the data.
In adopting Regulation NMS, the Commission granted self-regulatory
organizations (``SROs'') and broker-dealers (``BDs'') increased
authority and flexibility to offer new and unique market data to the
public. It was believed that this authority would expand the amount of
data available to consumers, and also spur innovation and competition
for the provision of market data.
---------------------------------------------------------------------------
\3\ 15 U.S.C. 78f.
\4\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------
NASDAQ believes that its NASDAQ Last Sale market data products are
precisely the sort of market data product that the Commission
envisioned when it adopted Regulation NMS. The Commission concluded
that Regulation NMS--by lessening regulation of the market in
proprietary data--would itself further the Act's goals of facilitating
efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the
data beyond the prices, sizes, market center identifications of the
NBBO and consolidated last sale information are not required to
receive (and pay for) such data. The Commission also believes that
efficiency is promoted when broker-dealers may choose to receive
(and pay for) additional market data based on their own internal
analysis of the need for such data.\5\
---------------------------------------------------------------------------
\5\ Securities Exchange Act Release No. 51808 (June 9, 2005), 70
FR 37496 (June 29, 2005).
By removing unnecessary regulatory restrictions on the ability of
exchanges to sell their own data, Regulation NMS advanced the goals of
the Act and the principles reflected in its legislative history. If the
free market should determine whether proprietary data is sold to BDs at
all, it follows that the price at which such data is sold should be set
by the market as well.
The decision of the United States Court of Appeals for the District
of Columbia Circuit in NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir.
2010) (``NetCoalition I''), upheld the Commission's reliance upon
competitive markets to set reasonable and equitably allocated fees for
market data. ``In fact, the legislative history indicates that the
Congress intended that the market system `evolve through the interplay
of competitive forces as unnecessary regulatory restrictions are
removed' and that the SEC wield its regulatory power `in those
situations where competition may not be sufficient,' such as in the
creation of a `consolidated transactional reporting system.'''
NetCoalition I, at 535 (quoting H.R. Rep. No. 94-229, at 92 (1975), as
reprinted in 1975 U.S.C.C.A.N. 321, 323). The court agreed with the
Commission's conclusion that ``Congress intended that `competitive
forces should dictate the services and practices that constitute the
U.S. national market system for trading equity securities.' '' \6\
---------------------------------------------------------------------------
\6\ NetCoalition I, at 535.
---------------------------------------------------------------------------
The court in NetCoalition I, while upholding the Commission's
conclusion that competitive forces may be relied upon to establish the
fairness of prices, nevertheless concluded that the record in that case
did not adequately support the Commission's conclusions as to the
competitive nature of the market for NYSE Arca's data product at issue
in that case. As explained below in NASDAQ's Statement on Burden on
Competition, however, NASDAQ believes that there is substantial
evidence of competition in the marketplace for data that was not in the
record in the NetCoalition I case, and that the Commission is entitled
to rely upon such evidence in concluding that the fees established in
this filing are the product of competition, and therefore in accordance
with the relevant statutory standards.\7\ Moreover, NASDAQ further
notes that the product at issue in this filing--a NASDAQ last sale data
product that replicates a subset of the information available through
``core'' data products whose fees have been reviewed and approved by
the SEC--is quite different from the NYSE Arca depth-of-book data
product at issue in NetCoalition I. Accordingly, any findings of the
court with respect to that product may not be relevant to the product
at issue in this filing.
---------------------------------------------------------------------------
\7\ It should also be noted that Section 916 of the Dodd-Frank
Wall Street Reform and Consumer Protection Act of 2010 (``Dodd-Frank
Act'') has amended paragraph (A) of Section 19(b)(3) of the Act, 15
U.S.C. 78s(b)(3), to make it clear that all exchange fees, including
fees for market data, may be filed by exchanges on an immediately
effective basis.
---------------------------------------------------------------------------
B. Self-Regulatory Organization's Statement on Burden on Competition
NASDAQ does not believe that the proposed rule change will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended. NASDAQ's ability to
price its Last Sale Data Products is constrained by (1) competition
between exchanges and other trading platforms that compete with each
other in a variety of dimensions; (2) the existence of inexpensive
real-time consolidated data and market-specific data and free delayed
consolidated data; and (3) the inherent contestability of the market
for proprietary last sale data.
The market for proprietary last sale data products is currently
competitive and inherently contestable because there is fierce
competition for the inputs necessary to the creation of proprietary
data and strict pricing discipline for the proprietary products
themselves. Numerous exchanges compete with each other for listings,
trades, and market data itself, providing virtually
[[Page 62822]]
limitless opportunities for entrepreneurs who wish to produce and
distribute their own market data. This proprietary data is produced by
each individual exchange, as well as other entities, in a vigorously
competitive market.
Transaction execution and proprietary data products are
complementary in that market data is both an input and a byproduct of
the execution service. In fact, market data and trade execution are a
paradigmatic example of joint products with joint costs. The decision
whether and on which platform to post an order will depend on the
attributes of the platform where the order can be posted, including the
execution fees, data quality and price, and distribution of its data
products. Without trade executions, exchange data products cannot
exist. Moreover, data products are valuable to many end users only
insofar as they provide information that end users expect will assist
them or their customers in making trading decisions.
The costs of producing market data include not only the costs of
the data distribution infrastructure, but also the costs of designing,
maintaining, and operating the exchange's transaction execution
platform and the cost of regulating the exchange to ensure its fair
operation and maintain investor confidence. The total return that a
trading platform earns reflects the revenues it receives from both
products and the joint costs it incurs. Moreover, the operation of the
exchange is characterized by high fixed costs and low marginal costs.
This cost structure is common in content and content distribution
industries such as software, where developing new software typically
requires a large initial investment (and continuing large investments
to upgrade the software), but once the software is developed, the
incremental cost of providing that software to an additional user is
typically small, or even zero (e.g., if the software can be downloaded
over the internet after being purchased).\8\ In NASDAQ's case, it is
costly to build and maintain a trading platform, but the incremental
cost of trading each additional share on an existing platform, or
distributing an additional instance of data, is very low. Market
information and executions are each produced jointly (in the sense that
the activities of trading and placing orders are the source of the
information that is distributed) and are each subject to significant
scale economies. In such cases, marginal cost pricing is not feasible
because if all sales were priced at the margin, NASDAQ would be unable
to defray its platform costs of providing the joint products.
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\8\ See William J. Baumol and Daniel G. Swanson, ``The New
Economy and Ubiquitous Competitive Price Discrimination: Identifying
Defensible Criteria of Market Power,'' Antitrust Law Journal, Vol.
70, No. 3 (2003).
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An exchange's BD customers view the costs of transaction executions
and of data as a unified cost of doing business with the exchange. A BD
will direct orders to a particular exchange only if the expected
revenues from executing trades on the exchange exceed net transaction
execution costs and the cost of data that the BD chooses to buy to
support its trading decisions (or those of its customers). The choice
of data products is, in turn, a product of the value of the products in
making profitable trading decisions. If the cost of the product exceeds
its expected value, the BD will choose not to buy it. Moreover, as a BD
chooses to direct fewer orders to a particular exchange, the value of
the product to that BD decreases, for two reasons. First, the product
will contain less information, because executions of the BD's trading
activity will not be reflected in it. Second, and perhaps more
important, the product will be less valuable to that BD because it does
not provide information about the venue to which it is directing its
orders. Data from the competing venue to which the BD is directing
orders will become correspondingly more valuable.
Similarly, in the case of products such as NLS that are distributed
through market data vendors, the vendors provide price discipline for
proprietary data products because they control the primary means of
access to end users. Vendors impose price restraints based upon their
business models. For example, vendors such as Bloomberg and Reuters
that assess a surcharge on data they sell may refuse to offer
proprietary products that end users will not purchase in sufficient
numbers. Internet portals, such as Google, impose a discipline by
providing only data that will enable them to attract ``eyeballs'' that
contribute to their advertising revenue. Retail BDs, such as Schwab and
Fidelity, offer their customers proprietary data only if it promotes
trading and generates sufficient commission revenue. Although the
business models may differ, these vendors' pricing discipline is the
same: they can simply refuse to purchase any proprietary data product
that fails to provide sufficient value. NASDAQ and other producers of
proprietary data products must understand and respond to these varying
business models and pricing disciplines in order to market proprietary
data products successfully. Moreover, NASDAQ believes that products
such as NLS can enhance order flow to NASDAQ by providing more
widespread distribution of information about transactions in real time,
thereby encouraging wider participation in the market by investors with
access to the internet or television. Conversely, the value of such
products to distributors and investors decreases if order flow falls,
because the products contain less content.
Analyzing the cost of market data distribution in isolation from
the cost of all of the inputs supporting the creation of market data
will inevitably underestimate the cost of the data. Thus, because it is
impossible to create data without a fast, technologically robust, and
well-regulated execution system, system costs and regulatory costs
affect the price of market data. It would be equally misleading,
however, to attribute all of the exchange's costs to the market data
portion of an exchange's joint product. Rather, all of the exchange's
costs are incurred for the unified purposes of attracting order flow,
executing and/or routing orders, and generating and selling data about
market activity. The total return that an exchange earns reflects the
revenues it receives from the joint products and the total costs of the
joint products.
Competition among trading platforms can be expected to constrain
the aggregate return each platform earns from the sale of its joint
products, but different platforms may choose from a range of possible,
and equally reasonable, pricing strategies as the means of recovering
total costs. NASDAQ pays rebates to attract orders, charges relatively
low prices for market information and charges relatively high prices
for accessing posted liquidity. Other platforms may choose a strategy
of paying lower liquidity rebates to attract orders, setting relatively
low prices for accessing posted liquidity, and setting relatively high
prices for market information. Still others may provide most data free
of charge and rely exclusively on transaction fees to recover their
costs. Finally, some platforms may incentivize use by providing
opportunities for equity ownership, which may allow them to charge
lower direct fees for executions and data.
In this environment, there is no economic basis for regulating
maximum prices for one of the joint products in an industry in which
suppliers face competitive constraints with regard to the joint
offering. Such regulation is unnecessary because an ``excessive'' price
for one of the joint products will ultimately have to be reflected in
lower
[[Page 62823]]
prices for other products sold by the firm, or otherwise the firm will
experience a loss in the volume of its sales that will be adverse to
its overall profitability. In other words, an increase in the price of
data will ultimately have to be accompanied by a decrease in the cost
of executions, or the volume of both data and executions will fall.
The level of competition and contestability in the market is
evident in the numerous alternative venues that compete for order flow,
including thirteen SRO markets, as well as internalizing BDs and
various forms of alternative trading systems (``ATSs''), including dark
pools and electronic communication networks (``ECNs''). Each SRO market
competes to produce transaction reports via trade executions, and two
FINRA-regulated TRFs compete to attract internalized transaction
reports. It is common for BDs to further and exploit this competition
by sending their order flow and transaction reports to multiple
markets, rather than providing them all to a single market. Competitive
markets for order flow, executions, and transaction reports provide
pricing discipline for the inputs of proprietary data products.
The large number of SROs, TRFs, BDs, and ATSs that currently
produce proprietary data or are currently capable of producing it
provides further pricing discipline for proprietary data products. Each
SRO, TRF, ATS, and BD is currently permitted to produce proprietary
data products, and many currently do or have announced plans to do so,
including NASDAQ, NYSE, NYSE MKT, NYSE Arca, BATS, and Direct Edge.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs
or BDs to produce joint proprietary data products. Additionally, order
routers and market data vendors can facilitate single or multiple BDs'
production of proprietary data products. The potential sources of
proprietary products are virtually limitless.
The fact that proprietary data from ATSs, BDs, and vendors can by-
pass SROs is significant in two respects. First, non-SROs can compete
directly with SROs for the production and sale of proprietary data
products, as BATS and Arca did before registering as exchanges by
publishing proprietary book data on the internet. Second, because a
single order or transaction report can appear in a core data product,
an SRO proprietary product, and/or a non-SRO proprietary product, the
data available in proprietary products is exponentially greater than
the actual number of orders and transaction reports that exist in the
marketplace. Indeed, in the case of NLS, the data provided through that
product appears both in (i) real-time core data products offered by the
SIPs for a fee, and (ii) free SIP data products with a 15-minute time
delay, and finds a close substitute in last-sale products of competing
venues.
In addition to the competition and price discipline described
above, the market for proprietary data products is also highly
contestable because market entry is rapid, inexpensive, and profitable.
The history of electronic trading is replete with examples of entrants
that swiftly grew into some of the largest electronic trading platforms
and proprietary data producers: Archipelago, Bloomberg Tradebook,
Island, RediBook, Attain, TracECN, BATS Trading and Direct Edge. A
proliferation of dark pools and other ATSs operate profitably with
fragmentary shares of consolidated market volume.
Regulation NMS, by deregulating the market for proprietary data,
has increased the contestability of that market. While BDs have
previously published their proprietary data individually, Regulation
NMS encourages market data vendors and BDs to produce proprietary
products cooperatively in a manner never before possible. Multiple
market data vendors already have the capability to aggregate data and
disseminate it on a profitable scale, including Bloomberg and Thomson
Reuters.
Moreover, consolidated data provides two additional measures of
pricing discipline for proprietary data products that are a subset of
the consolidated data stream. First, the consolidated data is widely
available in real-time at $1 per month for non-professional users.
Second, consolidated data is also available at no cost with a 15- or
20- minute delay. Because consolidated data contains marketwide
information, it effectively places a cap on the fees assessed for
proprietary data (such as last sale data) that is simply a subset of
the consolidated data. The mere availability of low-cost or free
consolidated data provides a powerful form of pricing discipline for
proprietary data products that contain data elements that are a subset
of the consolidated data, by highlighting the optional nature of
proprietary products.
The competitive nature of the market for products such as NLS is
borne out by the performance of the market. In May 2008, the internet
portal Yahoo! began offering its Web site viewers real-time last sale
data (as well as best quote data) provided by BATS. In response, in
June 2008, NASDAQ launched NLS, which was initially subject to an
``enterprise cap'' of $100,000 for customers receiving only one of the
NLS products, and $150,000 for customers receiving both products. The
majority of NASDAQ's sales were at the capped level. In early 2009,
BATS expanded its offering of free data to include depth-of-book data.
Also in early 2009, NYSE Arca announced the launch of a competitive
last sale product with an enterprise price of $30,000 per month. In
response, NASDAQ combined the enterprise cap for the NLS products and
reduced the cap to $50,000 (i.e., a reduction of $100,000 per month).
Although each of these products offers only a specific subset of data
available from the SIPs, NASDAQ believes that the products are viewed
as substitutes for each other and for core last-sale data, rather than
as products that must be obtained in tandem. For example, while Yahoo!
and Google now both disseminate NASDAQ's product, several other major
content providers, including MSN and Morningstar, use the BATS product.
In this environment, a super-competitive increase in the fees
charged for either transactions or data has the potential to impair
revenues from both products. ``No one disputes that competition for
order flow is `fierce'.'' NetCoalition I at 24. The existence of fierce
competition for order flow implies a high degree of price sensitivity
on the part of BDs with order flow, since they may readily reduce costs
by directing orders toward the lowest-cost trading venues. A BD that
shifted its order flow from one platform to another in response to
order execution price differentials would both reduce the value of that
platform's market data and reduce its own need to consume data from the
disfavored platform. If a platform increases its market data fees, the
change will affect the overall cost of doing business with the
platform, and affected BDs will assess whether they can lower their
trading costs by directing orders elsewhere and thereby lessening the
need for the more expensive data. Similarly, increases in the cost of
NLS would impair the willingness of distributors to take a product for
which there are numerous alternatives, impacting NLS data revenues, the
value of NLS as a tool for attracting order flow, and ultimately, the
volume of orders routed to NASDAQ and the value of its other data
products.
In establishing the price for the NASDAQ Last Sale Products, NASDAQ
considered the competitiveness of the market for last sale data and all
of the implications of that competition. NASDAQ believes that it has
considered all relevant factors and has not
[[Page 62824]]
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 NLS,
including real-time consolidated data, free delayed consolidated data,
and proprietary data from other sources ensures that NASDAQ cannot set
unreasonable fees, or fees that are unreasonably discriminatory,
without losing business to these alternatives. Accordingly, NASDAQ
believes that the acceptance of the NLS product in the marketplace
demonstrates the consistency of these fees with applicable statutory
standards.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
Three comment letters were filed regarding the proposed rule change
as originally published for comment. NASDAQ responded to these comments
in a letter dated December 13, 2007. Both the comment letters and
NASDAQ's response are available on the SEC Web site at https://www.sec.gov/comments/sr-nasdaq-2006-060/nasdaq2006060.shtml. In
addition, in response to prior filings to extend the NLS pilot,\9\ the
Securities Industry and Financial Markets Association (``SIFMA'') and/
or NetCoalition\10\ filed comment letters contending that the SEC
should suspend and institute disapproval proceedings with respect to
the filing. SIFMA and NetCoalition had also filed petitions seeking
review by the United States Court of Appeals for the District of
Columbia Circuit with respect to the NLS pricing pilots in effect from
July 1, 2011 through September 30, 2011, from October 1, 2011 through
December 31, 2011, from July 1, 2012 through September 30, 2012, and
from January 1, 2013 through March 31, 2013. These appeals were stayed
pending resolution of the consolidated case NetCoalition v. SEC, Nos.
10-1421, 10-1422, 11-1001, and 11-1065 (``NetCoalition II''). On April
30, 2013, the court issued a decision dismissing NetCoalition II,
concluding that it lacked jurisdiction to entertain the case.
Subsequently, the court issued orders dismissing each of the pending
petitions seeking review of prior extensions of the NLS pricing pilot.
On May 30, 2013, SIFMA filed with the Commission an ``Application for
an Order Setting Aside Rule Changes of Certain Self-Regulatory
Organizations Limiting Access to their Services'' that purports to
challenge prior filings under Section 19(d) and (f) of the Act.\11\
Pursuant to a Commission procedural order, interested parties have
recently completed submission of briefs to the Commission regarding
appropriate procedures and other threshold questions.
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\9\ Securities Exchange Act Release Nos. 69245 (March 27, 2013),
78 FR 19772 (April 2, 2013) (SR-NASDAQ-2013-053); 68568 (January 3,
2013), 78 FR 1910 (January 9, 2013) (SR-NASDAQ-2012-145); 67376
(July 9, 2012), 77 FR 41467 (July 13, 2012) (SR-NASDAQ-2012-078);
65488 (October 5, 2011), 76 FR 63334 (October 21, 2011) (SR-NASDAQ-
2011-132); 64856 (July 12, 2011), 76 FR 41845 (July 15, 2011) (SR-
NASDAQ-2011-092); 64188 (April 5, 2011), 76 FR 20054 (April 11,
2011) (SR-NASDAQ-2011-044).
\10\ It was recently reported that NetCoalition is terminating
its operations. See Martinez, ``NetCoalition Winds Down Operations''
(available at https://thehill.com/blogs/hillicon-valley/technology/263793-netcoalition-winds-down-operations). Accordingly, NASDAQ
notes that the most recent comment letter was filed solely by SIFMA.
See Letter from Ira D. Hammerman, Senior Managing Director & General
Counsel, SIFMA, to Elizabeth M. Murphy, Secretary, Commission (April
23, 2013).
\11\ Admin. Proc. File No. 3-15351. See also Admin Proc. File
No. 13-15350 (similar proceeding with respect to NYSEArca data
product). As with prior SIFMA challenges, the pendency of SIFMA's
new action should in no way affect the continuation of the pilot for
NASDAQ Last Sale.
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It appears to NASDAQ that SIFMA's contentions in this new
proceeding are similar to the contentions in its numerous prior comment
letters, which have repeatedly argued that market data fees are
improper unless established through public utility-style rate-making
proceedings that are nowhere contemplated by the Act. In making its
arguments, SIFMA has sought to rely upon NetCoalition I, while
repeatedly mischaracterizing the import of that case. Specifically, the
court made findings about the extent of the Commission's record in
support of determinations about a depth-of-book product offered by NYSE
Arca. In making this limited finding, the court nevertheless squarely
rejected contentions that cost-based review of market data fees was
required by the Act:
The petitioners believe that the SEC's market-based approach is
prohibited under the Exchange Act because the Congress intended
``fair and reasonable'' to be determined using a cost-based
approach. The SEC counters that, because it has statutorily-granted
flexibility in evaluating market data fees, its market-based
approach is fully consistent with the Exchange Act. We agree with
the SEC.\12\
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\12\ NetCoalition I, 615 F.3d at 534.
While the court noted that cost data could sometimes be relevant in
determining the reasonableness of fees, it acknowledged that submission
of cost data may be inappropriate where there are ``difficulties in
calculating the direct costs . . . of market data,'' id. at 539. That
is the case here, due to the fact that the fixed costs of market data
production are inseparable from the fixed costs of providing a trading
platform, and the marginal costs of market data production are
minimal.\13\ Because the costs of providing execution services and
market data are not unique to either of the provided services, there is
no meaningful way to allocate these costs among the two ``joint
products''--and any attempt to do so would result in inherently
arbitrary cost allocations.\14\
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\13\ Because the fees charged for products must cover these
fixed costs, pricing at marginal cost is impossible.
\14\ The court also explicitly acknowledged that the ``joint
product'' theory set forth by NASDAQ's economic experts in
NetCoalition I (and also described in this filing) could explain the
competitive dynamic of the market and explain why consideration of
cost data would be unavailing. Indeed, the Commission relied on that
theory before the D.C. Circuit, but the court declined to reach the
question because the Commission raised it for the first time on
appeal. Id. at 541 n.16. For the purpose of providing a complete
explanation of the theory, NASDAQ is further submitting as Exhibit 3
to this filing a study that was submitted to the Commission in SR-
NASDAQ-2011-010. See Statement of Janusz Ordover and Gustavo
Bamberger at 2-17 (December 29, 2010).
---------------------------------------------------------------------------
SIFMA further contended that prior filings lacked evidence
supporting a conclusion that the market for NLS is competitive,
asserting that arguments about competition for order flow and
substitutability were rejected in NetCoalition I. While the court did
determine that the record before it was not sufficient to allow it to
endorse those theories on the facts of that case, the court did not
itself make any conclusive findings about the actual presence or
absence of competition or the accuracy of these theories: rather, it
simply made a finding about the state of the SEC's record. Moreover,
analysis about competition in the market for depth-of-book data is only
tangentially relevant to the market for last sale data. As discussed
above and in prior filings, perfect and partial substitutes for NLS
exist in the form of real-time core market data, free delayed core
market data, and the last sale products of competing venues; additional
competitive entry is possible; and evidence of competition is readily
apparent in the pricing behavior of the venues offering last sale
products and the consumption patterns of their customers. Thus,
although NASDAQ believes that the competitive nature of the market for
all market data, including depth-of-book data, will ultimately be
established, SIFMA's submissions have not only mischaracterized the
[[Page 62825]]
NetCoalition I decision, but have also failed to address the
characteristics of the product at issue and the evidence already
presented.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\15\ At any time within 60 days of the
filing of the proposed rule change, the Commission summarily may
temporarily suspend such rule change if it appears to the Commission
that such action is necessary or appropriate in the public interest,
for the protection of investors, or otherwise in furtherance of the
purposes of the Act.
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\15\ 15 U.S.C. 78s(b)(3)(A)(ii).
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IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to rule-comments@sec.gov. Please include
File Number SR-NASDAQ-2013-126 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2013-126. 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 such filing also will be available
for inspection and copying at the principal office of NASDAQ. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NASDAQ-2013-126 and should
be submitted on or before November 12, 2013.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
Kevin M. O'Neill,
Deputy Secretary.
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\16\ 17 CFR 200.30-3(a)(12).
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[FR Doc. 2013-24545 Filed 10-21-13; 8:45 am]
BILLING CODE 8011-01-P
