Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify Administrative Charges for Distributors of Proprietary Data Feed Products, 96152-96155 [2016-31482]

Download as PDF asabaliauskas on DSK3SPTVN1PROD with NOTICES 96152 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices met the proposed new standards (but not those in the existing rule) and there is no evidence that they have proven unfit for exchange trading. The Exchange also believes that the proposal to modify Section 102.06 to allow an AC to conduct a tender offer for all shares of all shareholders in exchange for a pro rata share of the cash held in trust by the AC in compliance with Rule 13e–4 and Regulation 14E under the Act instead of soliciting a shareholder vote protects investors and the public interest, as it will help prevent ‘‘greenmail’’ strategies where professional investors seek to force ACs to give them consideration not available to other shareholders as a condition for voting in favor of an acquisition. The Exchange believes that it is consistent with the protection of investors to delete the requirement that a Business Combination not go forward if shareholders exceeding a threshold amount exercise their conversion rights, as shareholders will be informed in advance of the fact that the size of the post-Business Combination entity will vary depending on the amount of securities that are converted and they will be able to make their own informed decisions as to whether to participate in light of that disclosure. The Exchange believes that the proposed amendments to the continued listing standards are consistent with the protection of investors as the requirements for preBusiness Combination ACs would be as high as those applied to operating companies and the standard applied at the time of the Business Combination would be significantly higher than that applied to other continued listings. While the proposed amended quantitative requirements for the listing of ACs would be lower than those for other listing applicants, the Exchange does not believe that this difference is unfairly discriminatory. The Exchange believes this to be the case because market value-based listing standards are largely adopted to ensure adequate trading liquidity and, consequently, efficient market pricing of a company’s securities. As an investment in an AC prior to its Business Combination represents a right to a pro rata share of the AC’s assets held in trust, AC shares typically have a trading price very close to their liquidation value and the liquidity and market efficiency concerns relevant to listed operating companies do not arise to the same degree. As such, the Exchange does not believe it is unfairly discriminatory to apply different market value requirements to ACs than to other listing applicants. VerDate Sep<11>2014 18:41 Dec 28, 2016 Jkt 241001 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. The proposed rule change is designed to harmonize the Exchange’s rules with changes in the AC structure prevalent in the marketplace and embodied in the rules of other listing markets. As such, it is intended to promote competition for the listing of ACs. 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 Within 45 days of the date of publication of this notice in the Federal Register or up to 90 days (i) as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will: (A) by order approve or disapprove the proposed rule change, or (B) institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s Internet comment form (http://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– NYSE–2016–72 on the subject line. Paper Comments • Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–NYSE–2016–72. 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 PO 00000 Frm 00197 Fmt 4703 Sfmt 4703 only one method. The Commission will post all comments on the Commission’s Internet Web site (http://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549 on official business days between the hours of 10:00 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–NYSE– 2016–72 and should be submitted on or before January 19, 2017. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.10 Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2016–31488 Filed 12–28–16; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–79667; File No. SR–BX– 2016–071] Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify Administrative Charges for Distributors of Proprietary Data Feed Products December 22, 2016. 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 December 14, 2016, NASDAQ BX, Inc. (‘‘BX’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) the proposed rule change as described in Items I, II, and III below, which Items have been 10 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 E:\FR\FM\29DEN1.SGM 29DEN1 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices 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 The Exchange proposes to amend the Exchange’s market data fees at Rule 7035 to change the billing cycle for administrative fees paid by distributors of BX market data from annual to monthly, and to: (1) Replace the current $500 annual administrative fee assessed to distributors of delayed market data with a $50 monthly administrative fee, and (2) replace the current $1,000 annual administrative fee assessed to distributors of real-time market data with a $100 monthly administrative fee. The proposal is described further below.3 While these amendments are effective upon filing, the Exchange has designated the proposed amendments to be operative on January 1, 2017. The text of the proposed rule change is available on the Exchange’s Web site at http://nasdaqbx.cchwallstreet.com/, at the principal office of the Exchange, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change asabaliauskas on DSK3SPTVN1PROD with NOTICES 1. Purpose The purpose of the proposed rule change is to change the billing cycle for 3 The NASDAQ Stock Market LLC and NASDAQ PHLX LLC are filing companion proposals similar to this one. All three proposals will change the billing cycle for administrative fees paid by distributors of market data from annual to monthly, and will: (1) Replace the current $500 annual administrative fee assessed to distributors of delayed market data with a $50 monthly administrative fee, and (2) replace the current $1,000 annual administrative fee assessed to distributors of real-time market data with a $100 monthly administrative fee. VerDate Sep<11>2014 18:41 Dec 28, 2016 Jkt 241001 administrative fees paid by distributors of BX market data from annual to monthly, and to: (1) Replace the current $500 annual administrative fee assessed to distributors of delayed market data with a $50 monthly administrative fee, and (2) replace the current $1,000 annual administrative fee assessed to distributors of real-time market data with a $100 monthly administrative fee. Annual Administrative Fee BX assesses an annual administrative fee to any market data distributor that receives a proprietary market data product. The amount of that fee is $500 for delayed market data and $1,000 for real-time market data. Distributors of both delayed and real-time market data are not required to pay both fees; they are charged only the higher fee. The time difference between ‘‘delayed’’ and ‘‘real-time’’ data varies by product. BX Last Sale (BLS), for example, is considered delayed after 15 minutes, while BX TotalView-ITCH data is considered delayed after midnight ET. The specific delay interval applicable to each product is published on the Nasdaq Trader Web site. The administrative fee is waived for BX members who, pursuant to BX rules, solely conduct an options business. The fee is not prorated if the distributor receives the data feed for less than a year. Proposed Changes The Exchange proposes to change the billing cycle for administrative fees paid by distributors of BX market data from annual to monthly, and to: (1) Replace the current $500 annual administrative fee assessed to distributors of delayed market data with a $50 monthly administrative fee, and (2) replace the current $1,000 annual administrative fee assessed to distributors of real-time market data with a $100 monthly administrative fee. The purposes of the proposal are to: (1) Facilitate billing by aligning the current annual administrative fee billing cycle with the standard monthly billing cycle used by the Exchange; (2) allocate the fee more equitably by charging distributors that receive less than a year of market data an administrative fee only for those months that they receive market data; and (3) bring the BX administrative fee into alignment with the Nasdaq and PHLX market data administrative fees, which, after current proposals take effect, will be charged the same administrative fees on the same billing cycle. The complexity of administering the market data program has increased significantly since the current fee was PO 00000 Frm 00198 Fmt 4703 Sfmt 4703 96153 set in 2009. New, more complex products and services require the Exchange to expend more resources in administration and monitoring. For example, the introduction of Enhanced Display Solutions—which allow subscribers to view BX TotalView and BX Basic on computer monitors and export it to applications—required the Exchange to create new reporting systems and review mechanisms for the use of market data. New reporting and review mechanisms also had to be created to implement Managed Data Solutions, which allow electronic systems access to BX TotalView without human intervention. These programs were created in response to customer demand, and require administrative expenditures that had not been necessary when the amount of the administrative fee was set in 2009. The administrative fee is entirely optional in that it applies only to firms that elect to distribute BX market data. The proposed changes do not raise the cost of any other BX product, except to the extent that they increase the total cost of purchasing market data. 2. Statutory Basis The Exchange believes that its proposal is consistent with Section 6(b) of the Act,4 in general, and furthers the objectives of Sections 6(b)(4) and 6(b)(5) of the Act,5 in particular, in that it provides for the equitable allocation of reasonable dues, fees and other charges among members and issuers and other persons using any facility, and is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers. The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system ‘‘has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.’’ 6 Likewise, in NetCoalition v. Securities and Exchange Commission 7 4 15 U.S.C. 78f(b). U.S.C. 78f(b)(4) and (5). 6 Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) (‘‘Regulation NMS Adopting Release’’). 7 NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010). 5 15 E:\FR\FM\29DEN1.SGM 29DEN1 96154 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices asabaliauskas on DSK3SPTVN1PROD with NOTICES (‘‘NetCoalition’’) the D.C. Circuit upheld the Commission’s use of a market-based approach in evaluating the fairness of market data fees against a challenge claiming that Congress mandated a costbased approach.8 As the court emphasized, the Commission ‘‘intended in Regulation NMS that ‘market forces, rather than regulatory requirements’ play a role in determining the market data . . . to be made available to investors and at what cost.’’ 9 Further, ‘‘[n]o one disputes that competition for order flow is ‘fierce.’ . . . As the SEC explained, ‘[i]n the U.S. national market system, buyers and sellers of securities, and the brokerdealers that act as their order-routing agents, have a wide range of choices of where to route orders for execution’; [and] ‘no exchange can afford to take its market share percentages for granted’ because ‘no exchange possesses a monopoly, regulatory or otherwise, in the execution of order flow from broker dealers’ . . . .’’ 10 The Exchange believes that the proposal to replace the current $500 annual administrative fee assessed to distributors of delayed market data with a $50 monthly administrative fee, and the current $1,000 annual administrative fee assessed to distributors of real-time data with a $100 monthly administrative fee, is fair and equitable in accordance with Section 6(b)(4) of the Act, and not unreasonably discriminatory in accordance with Section 6(b)(5) of the Act. As described above, the proposed fee change is reasonable and necessary to facilitate billing, allocate fees more equitably, and align the administrative fees with those of the Nasdaq and PHLX exchanges. Moreover, administrative fees are constrained by the Exchange’s need to compete for order flow. The Exchange believes that the proposed change is an equitable allocation and is not unfairly discriminatory because the Exchange will apply the same fee to all similarlysituated distributors. 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 not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly 8 See NetCoalition, at 534–535. at 537. 10 Id. at 539 (quoting Securities Exchange Act Release No. 59039 (December 2, 2008), 73 FR 74770, 74782–83 (December 9, 2008) (SR– NYSEArca-2006–21)). 9 Id. VerDate Sep<11>2014 18:41 Dec 28, 2016 Jkt 241001 competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited. The proposal is to replace the current $500 annual administrative fee assessed to distributors of delayed market data with a $50 monthly administrative fee, and the current $1,000 annual administrative fee assessed to distributors of real-time market data with a $100 monthly administrative fee. If the changes proposed herein are unattractive to market participants, it is likely that the Exchange will lose market share as a result. Specifically, market forces constrain administrative fees in three respects. First, all fees associated with proprietary data are constrained by competition among exchanges and other entities attracting order flow. Second, administrative fees impact the total cost of market data, and are constrained by the total cost of the market data offered by other entities. Third, competition among distributors constrains the total cost of market data, including administrative fees. Competition for Order Flow Administrative fees are constrained by competition among exchanges and other entities seeking to attract order flow. Order flow is the ‘‘life blood’’ of the exchanges. Broker-dealers currently have numerous alternative venues for their order flow, including thirteen selfregulatory organization (‘‘SRO’’) markets, as well as internalizing brokerdealers (‘‘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. The existence of fierce competition for order flow implies a high degree of price sensitivity on the part of BDs, which may readily reduce PO 00000 Frm 00199 Fmt 4703 Sfmt 4703 costs by directing orders toward the lowest-cost trading venues. The level of competition and contestability in the market for order flow is demonstrated by the numerous 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 BATS/ Direct Edge. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume. For a variety of reasons, competition from new entrants, especially for order execution, has increased dramatically over the last decade. Each SRO, TRF, ATS, and BD that competes for order flow is permitted to produce proprietary data products. Many currently do or have announced plans to do so, including NYSE, NYSE Amex, NYSE Arca, BATS, and IEX. This is because Regulation NMS deregulated the market for proprietary data. While BDs had previously published their proprietary data individually, Regulation NMS encourages market data vendors and BDs to produce market data products cooperatively in a manner never before possible. Order routers and market data vendors can facilitate production of proprietary data products for single or multiple BDs. The potential sources of proprietary products are virtually limitless. The markets for order flow and market data are inextricably linked: A trading platform cannot generate market information unless it receives trade orders. As a result, the competition for order flow constrains the prices that platforms can charge for proprietary data products. Firms make decisions on how much and what types of data to consume based on the total cost of interacting with an exchange. Administrative fees are part of the total cost of proprietary data. A supracompetitive increase in the fees charged for either transactions or market data has the potential to impair revenues from both products. Competition From Market Data Providers Administrative fees are constrained by competition from other exchanges that sell market data. If administrative fees were to become excessive, distributors may elect to discontinue one or two products or services purchased from the Exchange, or reduce the level of their purchases, to signal that the overall cost of market data had become excessive. Such a reduction in purchases would act as a discipline to E:\FR\FM\29DEN1.SGM 29DEN1 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Notices the BX administrative fees, and would constrain the Exchange in its pricing decisions. • Send an email to rule-comments@ sec.gov. Please include File Number SR– BX–2016–071 on the subject line. Competition Among Distributors Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–BX–2016–071. 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 (http://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission’s Public Reference Room, 100 F Street NE., Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such filing also will be available for inspection and copying at the principal office of 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–BX– 2016–071, and should be submitted on or before January 19, 2017. Distributors provide another form of price discipline for market data products. Distributors are in competition for users, and can curtail their purchases of market data if the total price of market data, including administrative fees, were set above competitive levels. In summary, market forces constrain the level of administrative fees through competition for order flow, competition from other sources of proprietary data, and in the competition among distributors for customers. For these reasons, the Exchange has provided a substantial basis demonstrating that the fee is equitable, fair, reasonable, and not unreasonably discriminatory, and therefore consistent with and in furtherance of the purposes of the Exchange Act. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were either solicited or received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.11 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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved. asabaliauskas on DSK3SPTVN1PROD with NOTICES IV. Solicitation of Comments [FR Doc. 2016–31482 Filed 12–28–16; 8:45 am] Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s Internet comment form (http://www.sec.gov/ rules/sro.shtml); or 11 15 U.S.C. 78s(b)(3)(A)(ii). VerDate Sep<11>2014 18:41 Dec 28, 2016 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.12 Eduardo A. Aleman, Assistant Secretary. BILLING CODE 8011–01–P SMALL BUSINESS ADMINISTRATION Announcement of the Aspire Challenge—An Agency Prize Competition U.S. Small Business Administration. ACTION: Notice. AGENCY: 12 17 Jkt 241001 PO 00000 CFR 200.30–3(a)(12). Frm 00200 Fmt 4703 Sfmt 4703 96155 The Aspire Challenge is a prize competition conducted under the America Competes Act. The objective of the prizes is to spur the development and provision of innovative entrepreneurial development and access to capital resources for formerly incarcerated individuals or those who are non-violent ex-offenders DATES: The submission period for entries will begin on December 29, 2016 and close on February 13, 2017. SBA anticipates that winners will be announced no later than March 14, 2017. FOR FURTHER INFORMATION CONTACT: Matthew Stevens, Strategic Initiatives Manager, Office of Entrepreneurial Development, U.S. Small Business Administration, 409 Third Street SW., 6th Floor, Washington, DC 20416, (202) 205–7699, SI@sba.gov. SUPPLEMENTARY INFORMATION: SUMMARY: Background The U.S. Small Business Administration (SBA), officially established in 1953, maintains and strengthens the nation’s economy by aiding, counseling, assisting, and protecting the interests of small businesses, and by helping families and businesses to recover from national disasters. The SBA’s mission includes assisting small businesses to start, grow, and compete in markets by providing quality training, counseling, and access to resources. The Aspire Challenge is a prize competition designed to spur the development and provision of innovative entrepreneurial development and access to capital resources for formerly incarcerated individuals or those who are non-violent ex-offenders. Of the 600,000 individuals released on average each year from federal prisons, an estimated 60 percent remain unemployed one year after their release, raising the risk of recidivism and resulting in lost lifetime earnings. In fact, two-thirds of these individuals historically are rearrested within three years of their release. This challenge competition is separate but builds on the momentum of the Aspire Entrepreneurship Initiative, a public-private partnership announced in August 2016 between the SBA, W.K. Kellogg Foundation and JUSTINE Petersen. The three-year initiative is a pilot to test entrepreneurship education programming and microloan assistance through SBA Microloan Intermediaries to formerly incarcerated individuals in St. Louis, MO, Chicago, IL, Louisville, KY and Detroit, MI. The goal of the Aspire Challenge is to source additional E:\FR\FM\29DEN1.SGM 29DEN1

Agencies

[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Notices]
[Pages 96152-96155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31482]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79667; File No. SR-BX-2016-071]


Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Modify 
Administrative Charges for Distributors of Proprietary Data Feed 
Products

December 22, 2016.
    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 December 14, 2016, NASDAQ BX, Inc. (``BX'' or ``Exchange'') filed 
with the Securities and Exchange Commission (``SEC'' or ``Commission'') 
the proposed rule change as described in Items I, II, and III below, 
which Items have been

[[Page 96153]]

prepared by the Exchange. The Commission is publishing this notice to 
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes to amend the Exchange's market data fees at 
Rule 7035 to change the billing cycle for administrative fees paid by 
distributors of BX market data from annual to monthly, and to: (1) 
Replace the current $500 annual administrative fee assessed to 
distributors of delayed market data with a $50 monthly administrative 
fee, and (2) replace the current $1,000 annual administrative fee 
assessed to distributors of real-time market data with a $100 monthly 
administrative fee. The proposal is described further below.\3\
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    \3\ The NASDAQ Stock Market LLC and NASDAQ PHLX LLC are filing 
companion proposals similar to this one. All three proposals will 
change the billing cycle for administrative fees paid by 
distributors of market data from annual to monthly, and will: (1) 
Replace the current $500 annual administrative fee assessed to 
distributors of delayed market data with a $50 monthly 
administrative fee, and (2) replace the current $1,000 annual 
administrative fee assessed to distributors of real-time market data 
with a $100 monthly administrative fee.
---------------------------------------------------------------------------

    While these amendments are effective upon filing, the Exchange has 
designated the proposed amendments to be operative on January 1, 2017.
    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqbx.cchwallstreet.com/, at the principal office 
of the Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The purpose of the proposed rule change is to change the billing 
cycle for administrative fees paid by distributors of BX market data 
from annual to monthly, and to: (1) Replace the current $500 annual 
administrative fee assessed to distributors of delayed market data with 
a $50 monthly administrative fee, and (2) replace the current $1,000 
annual administrative fee assessed to distributors of real-time market 
data with a $100 monthly administrative fee.
Annual Administrative Fee
    BX assesses an annual administrative fee to any market data 
distributor that receives a proprietary market data product. The amount 
of that fee is $500 for delayed market data and $1,000 for real-time 
market data. Distributors of both delayed and real-time market data are 
not required to pay both fees; they are charged only the higher fee. 
The time difference between ``delayed'' and ``real-time'' data varies 
by product. BX Last Sale (BLS), for example, is considered delayed 
after 15 minutes, while BX TotalView-ITCH data is considered delayed 
after midnight ET. The specific delay interval applicable to each 
product is published on the Nasdaq Trader Web site. The administrative 
fee is waived for BX members who, pursuant to BX rules, solely conduct 
an options business. The fee is not prorated if the distributor 
receives the data feed for less than a year.
Proposed Changes
    The Exchange proposes to change the billing cycle for 
administrative fees paid by distributors of BX market data from annual 
to monthly, and to: (1) Replace the current $500 annual administrative 
fee assessed to distributors of delayed market data with a $50 monthly 
administrative fee, and (2) replace the current $1,000 annual 
administrative fee assessed to distributors of real-time market data 
with a $100 monthly administrative fee.
    The purposes of the proposal are to: (1) Facilitate billing by 
aligning the current annual administrative fee billing cycle with the 
standard monthly billing cycle used by the Exchange; (2) allocate the 
fee more equitably by charging distributors that receive less than a 
year of market data an administrative fee only for those months that 
they receive market data; and (3) bring the BX administrative fee into 
alignment with the Nasdaq and PHLX market data administrative fees, 
which, after current proposals take effect, will be charged the same 
administrative fees on the same billing cycle.
    The complexity of administering the market data program has 
increased significantly since the current fee was set in 2009. New, 
more complex products and services require the Exchange to expend more 
resources in administration and monitoring. For example, the 
introduction of Enhanced Display Solutions--which allow subscribers to 
view BX TotalView and BX Basic on computer monitors and export it to 
applications--required the Exchange to create new reporting systems and 
review mechanisms for the use of market data. New reporting and review 
mechanisms also had to be created to implement Managed Data Solutions, 
which allow electronic systems access to BX TotalView without human 
intervention. These programs were created in response to customer 
demand, and require administrative expenditures that had not been 
necessary when the amount of the administrative fee was set in 2009.
    The administrative fee is entirely optional in that it applies only 
to firms that elect to distribute BX market data.
    The proposed changes do not raise the cost of any other BX product, 
except to the extent that they increase the total cost of purchasing 
market data.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\4\ in general, and furthers the objectives of Sections 
6(b)(4) and 6(b)(5) of the Act,\5\ in particular, in that it provides 
for the equitable allocation of reasonable dues, fees and other charges 
among members and issuers and other persons using any facility, and is 
not designed to permit unfair discrimination between customers, 
issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78f(b).
    \5\ 15 U.S.C. 78f(b)(4) and (5).
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    The Commission and the courts have repeatedly expressed their 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. In Regulation 
NMS, while adopting a series of steps to improve the current market 
model, the Commission highlighted the importance of market forces in 
determining prices and SRO revenues and, also, recognized that current 
regulation of the market system ``has been remarkably successful in 
promoting market competition in its broader forms that are most 
important to investors and listed companies.'' \6\
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    \6\ Securities Exchange Act Release No. 51808 (June 9, 2005), 70 
FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting 
Release'').
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    Likewise, in NetCoalition v. Securities and Exchange Commission \7\

[[Page 96154]]

(``NetCoalition'') the D.C. Circuit upheld the Commission's use of a 
market-based approach in evaluating the fairness of market data fees 
against a challenge claiming that Congress mandated a cost-based 
approach.\8\ As the court emphasized, the Commission ``intended in 
Regulation NMS that `market forces, rather than regulatory 
requirements' play a role in determining the market data . . . to be 
made available to investors and at what cost.'' \9\
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    \7\ NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \8\ See NetCoalition, at 534-535.
    \9\ Id. at 537.
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    Further, ``[n]o one disputes that competition for order flow is 
`fierce.' . . . As the SEC explained, `[i]n the U.S. national market 
system, buyers and sellers of securities, and the broker-dealers that 
act as their order-routing agents, have a wide range of choices of 
where to route orders for execution'; [and] `no exchange can afford to 
take its market share percentages for granted' because `no exchange 
possesses a monopoly, regulatory or otherwise, in the execution of 
order flow from broker dealers' . . . .'' \10\
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    \10\ Id. at 539 (quoting Securities Exchange Act Release No. 
59039 (December 2, 2008), 73 FR 74770, 74782-83 (December 9, 2008) 
(SR-NYSEArca-2006-21)).
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    The Exchange believes that the proposal to replace the current $500 
annual administrative fee assessed to distributors of delayed market 
data with a $50 monthly administrative fee, and the current $1,000 
annual administrative fee assessed to distributors of real-time data 
with a $100 monthly administrative fee, is fair and equitable in 
accordance with Section 6(b)(4) of the Act, and not unreasonably 
discriminatory in accordance with Section 6(b)(5) of the Act. As 
described above, the proposed fee change is reasonable and necessary to 
facilitate billing, allocate fees more equitably, and align the 
administrative fees with those of the Nasdaq and PHLX exchanges. 
Moreover, administrative fees are constrained by the Exchange's need to 
compete for order flow.
    The Exchange believes that the proposed change is an equitable 
allocation and is not unfairly discriminatory because the Exchange will 
apply the same fee to all similarly-situated distributors.

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 not necessary or appropriate in 
furtherance of the purposes of the Act. In terms of inter-market 
competition, the Exchange notes that it operates in a highly 
competitive market in which market participants can readily favor 
competing venues if they deem fee levels at a particular venue to be 
excessive. In such an environment, the Exchange must continually adjust 
its fees to remain competitive with other exchanges and with 
alternative trading systems that have been exempted from compliance 
with the statutory standards applicable to exchanges. Because 
competitors are free to modify their own fees in response, and because 
market participants may readily adjust their order routing practices, 
the Exchange believes that the degree to which fee changes in this 
market may impose any burden on competition is extremely limited.
    The proposal is to replace the current $500 annual administrative 
fee assessed to distributors of delayed market data with a $50 monthly 
administrative fee, and the current $1,000 annual administrative fee 
assessed to distributors of real-time market data with a $100 monthly 
administrative fee. If the changes proposed herein are unattractive to 
market participants, it is likely that the Exchange will lose market 
share as a result.
    Specifically, market forces constrain administrative fees in three 
respects. First, all fees associated with proprietary data are 
constrained by competition among exchanges and other entities 
attracting order flow. Second, administrative fees impact the total 
cost of market data, and are constrained by the total cost of the 
market data offered by other entities. Third, competition among 
distributors constrains the total cost of market data, including 
administrative fees.
Competition for Order Flow
    Administrative fees are constrained by competition among exchanges 
and other entities seeking to attract order flow. Order flow is the 
``life blood'' of the exchanges. Broker-dealers currently have numerous 
alternative venues for their order flow, including thirteen 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. The existence of fierce competition for order flow implies a 
high degree of price sensitivity on the part of BDs, which may readily 
reduce costs by directing orders toward the lowest-cost trading venues.
    The level of competition and contestability in the market for order 
flow is demonstrated by the numerous 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 BATS/Direct Edge. A 
proliferation of dark pools and other ATSs operate profitably with 
fragmentary shares of consolidated market volume. For a variety of 
reasons, competition from new entrants, especially for order execution, 
has increased dramatically over the last decade.
    Each SRO, TRF, ATS, and BD that competes for order flow is 
permitted to produce proprietary data products. Many currently do or 
have announced plans to do so, including NYSE, NYSE Amex, NYSE Arca, 
BATS, and IEX. This is because Regulation NMS deregulated the market 
for proprietary data. While BDs had previously published their 
proprietary data individually, Regulation NMS encourages market data 
vendors and BDs to produce market data products cooperatively in a 
manner never before possible. Order routers and market data vendors can 
facilitate production of proprietary data products for single or 
multiple BDs. The potential sources of proprietary products are 
virtually limitless.
    The markets for order flow and market data are inextricably linked: 
A trading platform cannot generate market information unless it 
receives trade orders. As a result, the competition for order flow 
constrains the prices that platforms can charge for proprietary data 
products. Firms make decisions on how much and what types of data to 
consume based on the total cost of interacting with an exchange. 
Administrative fees are part of the total cost of proprietary data. A 
supracompetitive increase in the fees charged for either transactions 
or market data has the potential to impair revenues from both products.
Competition From Market Data Providers
    Administrative fees are constrained by competition from other 
exchanges that sell market data. If administrative fees were to become 
excessive, distributors may elect to discontinue one or two products or 
services purchased from the Exchange, or reduce the level of their 
purchases, to signal that the overall cost of market data had become 
excessive. Such a reduction in purchases would act as a discipline to

[[Page 96155]]

the BX administrative fees, and would constrain the Exchange in its 
pricing decisions.
Competition Among Distributors
    Distributors provide another form of price discipline for market 
data products. Distributors are in competition for users, and can 
curtail their purchases of market data if the total price of market 
data, including administrative fees, were set above competitive levels.
    In summary, market forces constrain the level of administrative 
fees through competition for order flow, competition from other sources 
of proprietary data, and in the competition among distributors for 
customers. For these reasons, the Exchange has provided a substantial 
basis demonstrating that the fee is equitable, fair, reasonable, and 
not unreasonably discriminatory, and therefore consistent with and in 
furtherance of the purposes of the Exchange Act.

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

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act.\11\
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    \11\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    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: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in furtherance of the 
purposes of the Act. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-BX-2016-071 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BX-2016-071. 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 (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549 on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available 
for inspection and copying at the principal office of 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-BX-2016-071, and should be 
submitted on or before January 19, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2016-31482 Filed 12-28-16; 8:45 am]
 BILLING CODE 8011-01-P