Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Incorporate the “PSX Last Sale and Nasdaq Last Sale Plus Data Feeds” Into the Market Data Enterprise License Proposed by the Nasdaq Stock Market LLC, 40578-40582 [2018-17492]

Download as PDF 40578 Federal Register / Vol. 83, No. 158 / Wednesday, August 15, 2018 / Notices daltland on DSKBBV9HB2PROD with NOTICES can be accessed through compliance with the requirements of 39 CFR 3007.40. The Commission invites comments on whether the Postal Service’s request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II. II. Docketed Proceeding(s) 1. Docket No(s).: CP2017–249; Filing Title: Notice of the United States Postal Service of Filing Modification Two to a Global Plus 3 Negotiated Service Agreement; Filing Acceptance Date: August 9, 2018; Filing Authority: 39 CFR 3015.5; Public Representative: Christopher C. Mohr; Comments Due: August 17, 2018. 2. Docket No(s).: CP2018–283; Filing Title: Notice of the United States Postal Service Filing of a Functionally Equivalent International Business Reply Service Competitive Contract 3 Negotiated Service Agreement; Filing Acceptance Date: August 9, 2018; Filing Authority: 39 CFR 3015.5; Public Representative: Christopher C. Mohr; Comments Due: August 17, 2018. 3. Docket No(s).: MC2018–204 and CP2018–284; Filing Title: USPS Request to Add Priority Mail Contract 460 to Competitive Product List and Notice of Filing Materials Under Seal; Filing Acceptance Date: August 9, 2018; Filing Authority: 39 U.S.C. 3642 and 39 CFR 3020.30 et seq.; Public Representative: Christopher C. Mohr; Comments Due: August 17, 2018. 4. Docket No(s).: MC2018–205 and CP2018–285; Filing Title: USPS Request to Add Priority Mail Contract 461 to Competitive Product List and Notice of Filing Materials Under Seal; Filing Acceptance Date: August 9, 2018; Filing Authority: 39 U.S.C. 3642 and 39 CFR 3020.30 et seq.; Public Representative: Christopher C. Mohr; Comments Due: August 17, 2018. This Notice will be published in the Federal Register. POSTAL SERVICE Product Change—Priority Mail Negotiated Service Agreement Postal ServiceTM. ACTION: Notice. AGENCY: The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule’s Competitive Products List. DATES: Date of required notice: August 15, 2018. FOR FURTHER INFORMATION CONTACT: Elizabeth Reed, 202–268–3179. SUPPLEMENTARY INFORMATION: The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on August 9, 2018, it filed with the Postal Regulatory Commission a USPS Request to Add Priority Mail Contract 461 to Competitive Product List. Documents are available at www.prc.gov, Docket Nos. MC2018–205, CP2018–285. SUMMARY: Elizabeth Reed, Attorney, Corporate and Postal Business Law. [FR Doc. 2018–17501 Filed 8–14–18; 8:45 am] BILLING CODE 7710–12–P Product Change—Priority Mail Negotiated Service Agreement Postal ServiceTM. Notice. AGENCY: The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule’s Competitive Products List. DATES: Date of required notice: August 15, 2018. FOR FURTHER INFORMATION CONTACT: Elizabeth Reed, 202–268–3179. SUPPLEMENTARY INFORMATION: The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on August 9, 2018, it filed with the Postal Regulatory Commission a USPS Request to Add Priority Mail Contract 460 to Competitive Product List. Documents are available at www.prc.gov, Docket Nos. MC2018–204, CP2018–284. SUMMARY: Stacy L. Ruble, Secretary. Elizabeth Reed, Attorney, Corporate and Postal Business Law. [FR Doc. 2018–17585 Filed 8–14–18; 8:45 am] [FR Doc. 2018–17500 Filed 8–14–18; 8:45 am] BILLING CODE 7710–FW–P BILLING CODE 7710–12–P VerDate Sep<11>2014 18:28 Aug 14, 2018 Jkt 244001 PO 00000 Frm 00080 Fmt 4703 [Release No. 34–83811; File No. SR–Phlx– 2018–53) Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Incorporate the ‘‘PSX Last Sale and Nasdaq Last Sale Plus Data Feeds’’ Into the Market Data Enterprise License Proposed by the Nasdaq Stock Market LLC August 9, 2018 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 July 27, 2018, Nasdaq PHLX LLC (‘‘Phlx’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) the proposed rule change as described in Items I, II, and III, below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. This amendment is immediately effective upon filing.3 I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change POSTAL SERVICE ACTION: SECURITIES AND EXCHANGE COMMISSION Sfmt 4703 The Exchange proposes to incorporate the ‘‘PSX Last Sale and Nasdaq Last Sale Plus Data Feeds’’ into the market data enterprise license proposed by the Nasdaq Stock Market LLC (‘‘Nasdaq’’), which is designed to lower fees, reduce administrative costs, and expand the availability of Nasdaq Last Sale (‘‘NLS’’) Plus, NLS, Nasdaq Basic and Nasdaq Depth-of-Book products. The proposal is described in further detail below. The text of the proposed rule change is available on the Exchange’s website at https://nasdaqphlx.cchwallstreet.com/, at the principal office of the Exchange, and at the Commission’s Public Reference Room. 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 This proposed change was initially filed on July 3, 2018, and became immediately effective on that date. See SR–Phlx–2018–51, available at https:// nasdaq.cchwallstreet.com/. It was subsequently refiled on July 17, 2018. See SR–Phlx–2018–52, available at https://nasdaq.cchwallstreet.com/. A firm eligible to purchase the enterprise license proposed by Nasdaq may purchase it for the month of July, effective on July 3, 2018, and the monthly fee for the license will be prorated for the period July 3 through July 31, 2018. Any fees owed by the purchaser of the enterprise license for the use of NLS Plus on July 1 and July 2, 2018, will also be prorated accordingly. 2 17 E:\FR\FM\15AUN1.SGM 15AUN1 Federal Register / Vol. 83, No. 158 / Wednesday, August 15, 2018 / Notices II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose daltland on DSKBBV9HB2PROD with NOTICES The Exchange proposes to incorporate the ‘‘PSX Last Sale and Nasdaq Last Sale Plus Data Feeds’’ into the market data enterprise license proposed by Nasdaq,4 which is designed to lower fees, reduce administrative costs, and expand the availability of NLS Plus, NLS, Nasdaq Basic and Nasdaq Depth-of-Book products (TotalView and Level 2). NLS Plus is a comprehensive data feed offered by Nasdaq that allows distributors to access the three last sale products 5 offered by Nasdaq and its affiliated U.S. equity exchanges,6 as well as the FINRA/Nasdaq Trade Reporting Facility (‘‘TRF’’). It provides total cross-market volume information at the issue level, and reflects the cumulative consolidated volume of realtime trading activity for Tape A, B and C securities.7 NLS Plus provides Trade Price, Trade Size, Sale Condition Modifiers, Cumulative Consolidated Market Volume, End of Day Trade Summary, Adjusted Closing Price, IPO Information, and Bloomberg ID. Additionally, pertinent regulatory information such as Market Wide 4 See SR–NASDAQ–2018–058 (not yet published). 5 The three last sale products consist of Nasdaq Last Sale, BX Last Sale, and PSX Last Sale. PSX Last Sale consists of two data feeds containing real-time last sale information for trades executed on the Exchange. ‘‘PSX Last Sale for Nasdaq’’ contains all transaction reports for Nasdaq-listed securities. ‘‘PSX Last Sale for NYSE/NYSEAmex’’ contains all such transaction reports for securities listed on NYSE, NYSE Amex, and other exchanges. 6 The Nasdaq, Inc. U.S. equity markets are Nasdaq PSX, Nasdaq, and Nasdaq BX. 7 Tape A and Tape B securities are disseminated pursuant to the Security Industry Automation Corporation’s (‘‘SIAC’’) Consolidated Tape Association Plan/Consolidated Quotation System, or CTA/CQS (‘‘CTA’’). Tape C securities are disseminated pursuant to the NASDAQ Unlisted Trading Privileges (‘‘UTP’’) Plan. VerDate Sep<11>2014 18:28 Aug 14, 2018 Jkt 244001 Circuit Breaker, Regulation SHO Short Sale Price Test Restricted Indicator, Trading Action, and Symbol Directory are included. NLS Plus may be received by itself or in combination with NASDAQ Basic. Firms that receive NLS Plus pay the monthly administrative fees for PSX Last Sale, BX Last Sale and NLS, and distributors pay a data consolidation fee of $350 per month.8 The Exchange does not currently charge user fees for PSX Last Sale, but firms that receive NLS Plus would be required to pay any user fees adopted by the Exchange.9 The Exchange proposes to incorporate any fees owed under the PSX Last Sale and Nasdaq Last Sale Plus Data Feeds into the market data enterprise license proposed by Nasdaq, which is designed to lower fees, reduce administrative costs, and expand the availability of NLS Plus, NLS, Nasdaq Basic and Nasdaq Depth-of-Book products. These fees include the monthly administrative fee applicable to NLS, PSX Last Sale and BX Last Sale, a data consolidation fee for Internal or External Distributors, and any user fees for PSX Last Sale or BX Last Sale that may be adopted in the future.10 As set forth in greater detail under the Nasdaq proposal, the market data enterprise license for display usage proposed by Nasdaq will allow Distributors who are broker-dealers or Investment Advisers 11 to disseminate these products to a wide audience for a monthly fee of $600,000, with the opportunity to lower that fee further to $500,000 per month if they contract for twelve months of service in advance. As explained in greater detail in Nasdaq’s filing, the Exchange believes that the 8 The fee applies to both Internal and External Distributors. See PSX Last Sale and Nasdaq Last Sale Plus Data Feeds, Subsection (b)(1). ‘‘Internal Distributors’’ are Distributors that receive NLS Plus data and then distribute that data to one or more Subscribers within the Distributor’s own entity. ‘‘External Distributors’’ are Distributors that receive NLS Plus data and then distribute that data to one or more Subscribers outside the Distributor’s own entity. 9 See PSX Last Sale and Nasdaq Last Sale Plus Data Feeds, Subsection (b)(3). 10 The Exchange also proposes a technical change to the PSX Last Sale and Nasdaq Last Sale Plus Data Feeds to reflect that PSX administrative fees are charged on a monthly, rather than annual, basis. See Securities Exchange Act Release No. 79654 (December 22, 2016), 81 FR 96140 (December 29, 2016) (SR–Phlx–2016–122). 11 ‘‘Investment Adviser’’ is defined in Section 202(a)(11) of the Investment Advisers Act of 1940, as ‘‘any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning securities . . . .’’ PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 40579 proposed market data enterprise license will reduce exchange fees, lower administrative costs for distributors, and help expand the availability of market information to investors, and thereby increase participation in financial markets. The enterprise license is being introduced in response to competition from other exchanges,12 and demonstrates both the power and the benefits of the competitive market to spur innovation and change. The purpose of this filing is to incorporate PSX Last Sale fees into the Nasdaq market data enterprise license as a means of lowering costs for all three equity markets. The rationale and support for this proposal are the same as already set forth by Nasdaq in its companion proposal.13 The proposed enterprise license is optional in that no exchange is required to offer it and distributors are not required to purchase it. Firms can discontinue its use at any time and for any reason, and may decide to purchase market data products individually or substitute products from one exchange with competing products from other exchanges. 2. Statutory Basis The Exchange believes that its proposal is consistent with Section 6(b) of the Act,14 in general, and furthers the objectives of Sections 6(b)(4) and 6(b)(5) of the Act,15 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. As described above, the proposal to cover PSX fees for NLS Plus within the proposed market data enterprise license will lower fees, reduce administrative costs, and expand the availability of market data to retail investors, which the Exchange expects to improve transparency for financial market participants and lead to increased participation in financial markets. Discounts for broader dissemination of market data information have routinely been adopted by exchanges and permitted by the Commission as equitable allocations of reasonable dues, fees and other charges.16 Distributors 12 See, e.g., Enterprise Fee for the Cboe Equities One Feed, available at https://markets.cboe.com/us/ equities/market_data_products/bats_one/. 13 See n. 4. 14 15 U.S.C. 78f(b). 15 15 U.S.C. 78f(b)(4) and (5). 16 For example, the Commission has permitted pricing discounts for market data under Nasdaq E:\FR\FM\15AUN1.SGM Continued 15AUN1 40580 Federal Register / Vol. 83, No. 158 / Wednesday, August 15, 2018 / Notices daltland on DSKBBV9HB2PROD with NOTICES will be free to move from the month to month rate to the annual rate at any time, or from the annual rate to the monthly rate, with notice, at the expiration of the twelve month term. This proposal demonstrates the existence of an effective, competitive market because it resulted from a need to generate innovative approaches in response to competition from other exchanges that offer enterprise licenses for market data.17 As the Commission has recognized, ‘‘[i]f competitive forces are operative, the self-interest of the exchanges themselves will work powerfully to constrain unreasonable or unfair behavior,’’ 18 and ‘‘the existence of significant competition provides a substantial basis for finding that the terms of an exchange’s fee proposal are equitable, fair, reasonable, and not unreasonably or unfairly discriminatory.’’ 19 The proposed enterprise license will be subject to significant competition from other exchanges because each eligible distributor will have the ability to accept or reject the license depending on whether it will or will not lower its fees, and because other exchanges will be able to offer their own competitive responses. As the Commission has held in the past, the presence of competition provides a substantial basis for a finding that the proposal will be an equitable allocation of reasonable dues, fees and other charges.20 Furthermore, the proposed enterprise license will not unfairly discriminate between customers, issuers, brokers or dealers. The Act does not prohibit all distinctions among customers, but only discrimination that is unfair, and it is not unfair discrimination to charge those distributors that are able to reach the largest audiences of retail investors a lower fee for incremental investors in order to encourage the widespread distribution of market data. The proposed change to the PSX rule book is designed to incorporate the PSX Last Sale and Nasdaq Last Sale Plus Data Feeds into the market data enterprise license proposed by Nasdaq. As explained in the Nasdaq filing, the market data enterprise license will be subject to significant competition, and that competition will ensure that there Rules 7023(c) and 7047(b). See also Securities Exchange Act Release No. 82182 (November 30, 2017), 82 FR 57627 (December 6, 2017) (SR–NYSE– 2017–60) (changing an enterprise fee for NYSE BBO and NYSE Trades). 17 See n. 12. 18 Securities Exchange Act Release No. 59039 (December 2, 2008), 73 FR 74770 (December 9, 2008) (SR–NYSEArca–2006–21). 19 Id. 20 Id. VerDate Sep<11>2014 18:28 Aug 14, 2018 Jkt 244001 is no unfair discrimination. Each distributor will be able to accept or reject the license depending on whether it will or will not lower costs for that particular distributor, and, if the license is not sufficiently competitive, the Exchange may lose market share. In adopting Regulation NMS, the Commission granted SROs and brokerdealers 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. The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act’s goals of facilitating efficiency and competition: [E]fficiency is promoted when brokerdealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.21 The Commission was speaking to the question of whether broker-dealers should be subject to a regulatory requirement to purchase data, such as Depth-of-Book data, that is in excess of the data provided through the consolidated tape feeds, and the Commission concluded that the choice should be left to them. Accordingly, Regulation NMS removed unnecessary regulatory restrictions on the ability of exchanges to sell their own data, thereby advancing 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 broker-dealers at all, it follows that the price at which such data is sold should be set by the market as well. The proposed change to the PSX rule book is designed to incorporate the PSX Last Sale and Nasdaq Last Sale Plus Data Feeds into the market data enterprise license proposed by Nasdaq, and the proposed enterprise license will compete with other enterprise licenses offered by Nasdaq, underlying fee schedules promulgated by the Exchange, and enterprise licenses and fee structures implemented by other exchanges. The enterprise license is a 21 See Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496 (June 29, 2005) (‘‘Regulation NMS Adopting Release’’). PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 voluntary product for which market participants can readily find substitutes. Accordingly, both PSX and Nasdaq are constrained from introducing a fee that would be inequitable or unfairly discriminatory. B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. This proposal will eliminate PSX fees for NLS Plus as part of a market data enterprise license proposed by Nasdaq that is intended to lower fees, reduce administrative costs, and expand the availability of market data to retail investors, which the Exchange expects to lead to increased participation in financial markets. It will not impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Act, but rather will enhance competition by introducing an innovative fee structure for market data, lowering prices and enhancing competition. The market for data products is extremely competitive and firms may freely choose alternative venues and data vendors based on the aggregate fees assessed, the data offered, and the value provided. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market. Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. 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 E:\FR\FM\15AUN1.SGM 15AUN1 daltland on DSKBBV9HB2PROD with NOTICES Federal Register / Vol. 83, No. 158 / Wednesday, August 15, 2018 / Notices execution platform, the cost of implementing cybersecurity to protect the data from external threats 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).22 It is costly for the Exchange 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 each are subject to significant scale economies. In such cases, marginal cost pricing is not feasible because if all sales were priced at the margin, the Exchange would be unable to defray its platform costs of providing the joint products. Similarly, data products cannot make use of trade reports from the TRF without the raw material of the trade reports themselves, and therefore necessitate the costs of operating, regulating, and maintaining a trade reporting system, costs that must be covered through the fees charged for use of the facility and sales of associated data. An exchange’s broker-dealer customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A broker-dealer will disfavor a particular exchange if the expected revenues from executing trades on the exchange do not exceed net transaction execution costs and the cost of data that the brokerdealer 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 22 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). VerDate Sep<11>2014 18:28 Aug 14, 2018 Jkt 244001 decisions. If the cost of the product exceeds its expected value, the brokerdealer will choose not to buy it. Moreover, as a broker-dealer chooses to direct fewer orders to a particular exchange, the value of the product to that broker-dealer decreases, for two reasons. First, the product will contain less information, because executions of the broker-dealer’s trading activity will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that brokerdealer because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the brokerdealer is directing more orders will become correspondingly more valuable. Similarly, 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 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 impose a discipline by providing only data that will enable them to attract ‘‘eyeballs’’ that contribute to their advertising revenue. Retail brokerdealers offer their retail 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. Exchanges, TRFs, 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, the Exchange believes that market data products can enhance order flow 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. 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 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 40581 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.23 Moreover, the level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including SRO markets, internalizing broker-dealers 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 broker-dealers to further exploit this competition by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. 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, broker-dealers, 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 broker-dealer is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including Nasdaq, NYSE, NYSE American, NYSE Arca, IEX, and BATS/ Direct Edge. 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.24 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 23 Cf. Ohio v. American Express, No. 16–1454 (S. Ct. June 25, 2018), https://www.supremecourt.gov/ opinions/17pdf/16-1454_5h26.pdf (recognizing the need to analyze both sides of a two sided platform market in order to determine its competitiveness). 24 15 U.S.C. 78s(b)(3)(A)(ii). E:\FR\FM\15AUN1.SGM 15AUN1 40582 Federal Register / Vol. 83, No. 158 / Wednesday, August 15, 2018 / Notices 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. be submitted on or before September 5, 2018. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.25 Eduardo A. Aleman, Assistant Secretary. [FR Doc. 2018–17492 Filed 8–14–18; 8:45 am] 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– Phlx–2018–53 on the subject line. daltland on DSKBBV9HB2PROD with NOTICES 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: Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of FOIA Services, 100 F Street NE, Washington, DC 20549–2736. 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–Phlx–2018–53. 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 website (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 website 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. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–Phlx–2018–53 and should VerDate Sep<11>2014 18:28 Aug 14, 2018 Jkt 244001 BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION Proposed Collection; Comment Request Extension: Regulation S–P. SEC File No. 270–480; OMB Control No. 3235–0537. Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (‘‘PRA’’) (44 U.S.C. 3501 et seq.), the Securities and Exchange Commission (‘‘Commission’’) is soliciting comments on the existing collection of information provided for in the privacy notice and opt out notice provisions of Regulation S–P—Privacy of Consumer Financial Information (17 CFR part 248, subpart A) under the Securities Exchange Act of 1934 (‘‘Exchange Act’’) (15 U.S.C. 78a et seq.). The Commission plans to submit this existing collection of information to the Office of Management and Budget (‘‘OMB’’) for extension and approval. The privacy notice and opt out notice provisions of Regulation S–P (the ‘‘Rule’’) implement the privacy notice and opt out notice requirements of Title V of the Gramm-Leach-Bliley Act (‘‘GLBA’’), which include the requirement that at the time of establishing a customer relationship with a consumer and not less than annually during the continuation of such relationship, a financial institution shall provide a clear and conspicuous disclosure to such consumer of such financial institution’s policies and practices with respect to disclosing nonpublic personal information to affiliates and nonaffiliated third parties (‘‘privacy notice’’). Title V of the GLBA also provides that, unless an exception applies, a financial institution may not disclose nonpublic personal information of a consumer to a nonaffiliated third party unless the financial institution clearly and conspicuously discloses to the consumer that such information may be disclosed to such third party; the 25 17 PO 00000 CFR 200.30–3(a)(12). Frm 00084 Fmt 4703 Sfmt 4703 consumer is given the opportunity, before the time that such information is initially disclosed, to direct that such information not be disclosed to such third party; and the consumer is given an explanation of how the consumer can exercise that nondisclosure option (‘‘opt out notice’’). The Rule applies to brokerdealers, investment advisers registered with the Commission, and investment companies (‘‘covered entities’’). Commission staff estimates that, as of March 31, 2018, the Rule’s information collection burden applies to approximately 20,465 covered entities (approximately 3,857 broker-dealers, 12,643 investment advisers registered with the Commission, and 3,965 investment companies). In view of (a) the minimal recordkeeping burden imposed by the Rule (since the Rule has no recordkeeping requirement and records relating to customer communications already must be made and retained pursuant to other SEC rules); (b) the summary fashion in which information must be provided to customers in the privacy and opt out notices required by the Rule (the model privacy form adopted by the SEC and the other agencies in 2009, designed to serve as both a privacy notice and an opt out notice, is only two pages); (c) the availability to covered entities of the model privacy form and online model privacy form builder; and (d) the experience of covered entities’ staff with the notices, SEC staff estimates that covered entities will each spend an average of approximately 12 hours per year complying with the Rule, for a total of approximately 245,580 annual burden-hours (12 x 20,465 = 245,580). SEC staff understands that the vast majority of covered entities deliver their privacy and opt out notices with other communications such as account opening documents and account statements. Because the other communications are already delivered to consumers, adding a brief privacy and opt out notice should not result in added costs for processing or for postage and materials. Also, privacy and opt out notices may be delivered electronically to consumers who have agreed to electronic communications, which further reduces the costs of delivery. Because SEC staff assumes that most paper copies of privacy and opt out notices are combined with other required mailings, the burden-hour estimates above are based on resources required to integrate the privacy and opt notices into another mailing, rather than on the resources required to create and send a separate mailing. SEC staff estimates that, of the estimated 12 E:\FR\FM\15AUN1.SGM 15AUN1

Agencies

[Federal Register Volume 83, Number 158 (Wednesday, August 15, 2018)]
[Notices]
[Pages 40578-40582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17492]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-83811; File No. SR-Phlx-2018-53)


Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Incorporate the 
``PSX Last Sale and Nasdaq Last Sale Plus Data Feeds'' Into the Market 
Data Enterprise License Proposed by the Nasdaq Stock Market LLC

August 9, 2018
    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 July 27, 2018, Nasdaq PHLX LLC (``Phlx'' or ``Exchange'') filed with 
the Securities and Exchange Commission (``SEC'' or ``Commission'') the 
proposed rule change as described in Items I, II, and III, below, which 
Items have been prepared by the Exchange. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

    This amendment is immediately effective upon filing.\3\
---------------------------------------------------------------------------

    \3\ This proposed change was initially filed on July 3, 2018, 
and became immediately effective on that date. See SR-Phlx-2018-51, 
available at https://nasdaq.cchwallstreet.com/. It was subsequently 
refiled on July 17, 2018. See SR-Phlx-2018-52, available at https://nasdaq.cchwallstreet.com/. A firm eligible to purchase the 
enterprise license proposed by Nasdaq may purchase it for the month 
of July, effective on July 3, 2018, and the monthly fee for the 
license will be prorated for the period July 3 through July 31, 
2018. Any fees owed by the purchaser of the enterprise license for 
the use of NLS Plus on July 1 and July 2, 2018, will also be 
prorated accordingly.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to incorporate the ``PSX Last Sale and Nasdaq 
Last Sale Plus Data Feeds'' into the market data enterprise license 
proposed by the Nasdaq Stock Market LLC (``Nasdaq''), which is designed 
to lower fees, reduce administrative costs, and expand the availability 
of Nasdaq Last Sale (``NLS'') Plus, NLS, Nasdaq Basic and Nasdaq Depth-
of-Book products. The proposal is described in further detail below.
    The text of the proposed rule change is available on the Exchange's 
website at https://nasdaqphlx.cchwallstreet.com/, at the principal 
office of the Exchange, and at the Commission's Public Reference Room.

[[Page 40579]]

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

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

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

1. Purpose
    The Exchange proposes to incorporate the ``PSX Last Sale and Nasdaq 
Last Sale Plus Data Feeds'' into the market data enterprise license 
proposed by Nasdaq,\4\ which is designed to lower fees, reduce 
administrative costs, and expand the availability of NLS Plus, NLS, 
Nasdaq Basic and Nasdaq Depth-of-Book products (TotalView and Level 2).
---------------------------------------------------------------------------

    \4\ See SR-NASDAQ-2018-058 (not yet published).
---------------------------------------------------------------------------

    NLS Plus is a comprehensive data feed offered by Nasdaq that allows 
distributors to access the three last sale products \5\ offered by 
Nasdaq and its affiliated U.S. equity exchanges,\6\ as well as the 
FINRA/Nasdaq Trade Reporting Facility (``TRF''). It provides total 
cross-market volume information at the issue level, and reflects the 
cumulative consolidated volume of real-time trading activity for Tape 
A, B and C securities.\7\ NLS Plus provides Trade Price, Trade Size, 
Sale Condition Modifiers, Cumulative Consolidated Market Volume, End of 
Day Trade Summary, Adjusted Closing Price, IPO Information, and 
Bloomberg ID. Additionally, pertinent regulatory information such as 
Market Wide Circuit Breaker, Regulation SHO Short Sale Price Test 
Restricted Indicator, Trading Action, and Symbol Directory are 
included. NLS Plus may be received by itself or in combination with 
NASDAQ Basic.
---------------------------------------------------------------------------

    \5\ The three last sale products consist of Nasdaq Last Sale, BX 
Last Sale, and PSX Last Sale. PSX Last Sale consists of two data 
feeds containing real-time last sale information for trades executed 
on the Exchange. ``PSX Last Sale for Nasdaq'' contains all 
transaction reports for Nasdaq-listed securities. ``PSX Last Sale 
for NYSE/NYSEAmex'' contains all such transaction reports for 
securities listed on NYSE, NYSE Amex, and other exchanges.
    \6\ The Nasdaq, Inc. U.S. equity markets are Nasdaq PSX, Nasdaq, 
and Nasdaq BX.
    \7\ Tape A and Tape B securities are disseminated pursuant to 
the Security Industry Automation Corporation's (``SIAC'') 
Consolidated Tape Association Plan/Consolidated Quotation System, or 
CTA/CQS (``CTA''). Tape C securities are disseminated pursuant to 
the NASDAQ Unlisted Trading Privileges (``UTP'') Plan.
---------------------------------------------------------------------------

    Firms that receive NLS Plus pay the monthly administrative fees for 
PSX Last Sale, BX Last Sale and NLS, and distributors pay a data 
consolidation fee of $350 per month.\8\ The Exchange does not currently 
charge user fees for PSX Last Sale, but firms that receive NLS Plus 
would be required to pay any user fees adopted by the Exchange.\9\
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    \8\ The fee applies to both Internal and External Distributors. 
See PSX Last Sale and Nasdaq Last Sale Plus Data Feeds, Subsection 
(b)(1). ``Internal Distributors'' are Distributors that receive NLS 
Plus data and then distribute that data to one or more Subscribers 
within the Distributor's own entity. ``External Distributors'' are 
Distributors that receive NLS Plus data and then distribute that 
data to one or more Subscribers outside the Distributor's own 
entity.
    \9\ See PSX Last Sale and Nasdaq Last Sale Plus Data Feeds, 
Subsection (b)(3).
---------------------------------------------------------------------------

    The Exchange proposes to incorporate any fees owed under the PSX 
Last Sale and Nasdaq Last Sale Plus Data Feeds into the market data 
enterprise license proposed by Nasdaq, which is designed to lower fees, 
reduce administrative costs, and expand the availability of NLS Plus, 
NLS, Nasdaq Basic and Nasdaq Depth-of-Book products. These fees include 
the monthly administrative fee applicable to NLS, PSX Last Sale and BX 
Last Sale, a data consolidation fee for Internal or External 
Distributors, and any user fees for PSX Last Sale or BX Last Sale that 
may be adopted in the future.\10\
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    \10\ The Exchange also proposes a technical change to the PSX 
Last Sale and Nasdaq Last Sale Plus Data Feeds to reflect that PSX 
administrative fees are charged on a monthly, rather than annual, 
basis. See Securities Exchange Act Release No. 79654 (December 22, 
2016), 81 FR 96140 (December 29, 2016) (SR-Phlx-2016-122).
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    As set forth in greater detail under the Nasdaq proposal, the 
market data enterprise license for display usage proposed by Nasdaq 
will allow Distributors who are broker-dealers or Investment Advisers 
\11\ to disseminate these products to a wide audience for a monthly fee 
of $600,000, with the opportunity to lower that fee further to $500,000 
per month if they contract for twelve months of service in advance. As 
explained in greater detail in Nasdaq's filing, the Exchange believes 
that the proposed market data enterprise license will reduce exchange 
fees, lower administrative costs for distributors, and help expand the 
availability of market information to investors, and thereby increase 
participation in financial markets. The enterprise license is being 
introduced in response to competition from other exchanges,\12\ and 
demonstrates both the power and the benefits of the competitive market 
to spur innovation and change.
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    \11\ ``Investment Adviser'' is defined in Section 202(a)(11) of 
the Investment Advisers Act of 1940, as ``any person who, for 
compensation, engages in the business of advising others, either 
directly or through publications or writings, as to the value of 
securities or as to the advisability of investing in, purchasing, or 
selling securities, or who, for compensation and as part of a 
regular business, issues or promulgates analyses or reports 
concerning securities . . . .''
    \12\ See, e.g., Enterprise Fee for the Cboe Equities One Feed, 
available at https://markets.cboe.com/us/equities/market_data_products/bats_one/.
---------------------------------------------------------------------------

    The purpose of this filing is to incorporate PSX Last Sale fees 
into the Nasdaq market data enterprise license as a means of lowering 
costs for all three equity markets. The rationale and support for this 
proposal are the same as already set forth by Nasdaq in its companion 
proposal.\13\
---------------------------------------------------------------------------

    \13\ See n. 4.
---------------------------------------------------------------------------

    The proposed enterprise license is optional in that no exchange is 
required to offer it and distributors are not required to purchase it. 
Firms can discontinue its use at any time and for any reason, and may 
decide to purchase market data products individually or substitute 
products from one exchange with competing products from other 
exchanges.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\14\ in general, and furthers the objectives of 
Sections 6(b)(4) and 6(b)(5) of the Act,\15\ 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.
---------------------------------------------------------------------------

    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    As described above, the proposal to cover PSX fees for NLS Plus 
within the proposed market data enterprise license will lower fees, 
reduce administrative costs, and expand the availability of market data 
to retail investors, which the Exchange expects to improve transparency 
for financial market participants and lead to increased participation 
in financial markets. Discounts for broader dissemination of market 
data information have routinely been adopted by exchanges and permitted 
by the Commission as equitable allocations of reasonable dues, fees and 
other charges.\16\ Distributors

[[Page 40580]]

will be free to move from the month to month rate to the annual rate at 
any time, or from the annual rate to the monthly rate, with notice, at 
the expiration of the twelve month term.
---------------------------------------------------------------------------

    \16\ For example, the Commission has permitted pricing discounts 
for market data under Nasdaq Rules 7023(c) and 7047(b). See also 
Securities Exchange Act Release No. 82182 (November 30, 2017), 82 FR 
57627 (December 6, 2017) (SR-NYSE-2017-60) (changing an enterprise 
fee for NYSE BBO and NYSE Trades).
---------------------------------------------------------------------------

    This proposal demonstrates the existence of an effective, 
competitive market because it resulted from a need to generate 
innovative approaches in response to competition from other exchanges 
that offer enterprise licenses for market data.\17\ As the Commission 
has recognized, ``[i]f competitive forces are operative, the self-
interest of the exchanges themselves will work powerfully to constrain 
unreasonable or unfair behavior,'' \18\ and ``the existence of 
significant competition provides a substantial basis for finding that 
the terms of an exchange's fee proposal are equitable, fair, 
reasonable, and not unreasonably or unfairly discriminatory.'' \19\ The 
proposed enterprise license will be subject to significant competition 
from other exchanges because each eligible distributor will have the 
ability to accept or reject the license depending on whether it will or 
will not lower its fees, and because other exchanges will be able to 
offer their own competitive responses. As the Commission has held in 
the past, the presence of competition provides a substantial basis for 
a finding that the proposal will be an equitable allocation of 
reasonable dues, fees and other charges.\20\
---------------------------------------------------------------------------

    \17\ See n. 12.
    \18\ Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74770 (December 9, 2008) (SR-NYSEArca-2006-21).
    \19\ Id.
    \20\ Id.
---------------------------------------------------------------------------

    Furthermore, the proposed enterprise license will not unfairly 
discriminate between customers, issuers, brokers or dealers. The Act 
does not prohibit all distinctions among customers, but only 
discrimination that is unfair, and it is not unfair discrimination to 
charge those distributors that are able to reach the largest audiences 
of retail investors a lower fee for incremental investors in order to 
encourage the widespread distribution of market data. The proposed 
change to the PSX rule book is designed to incorporate the PSX Last 
Sale and Nasdaq Last Sale Plus Data Feeds into the market data 
enterprise license proposed by Nasdaq. As explained in the Nasdaq 
filing, the market data enterprise license will be subject to 
significant competition, and that competition will ensure that there is 
no unfair discrimination. Each distributor will be able to accept or 
reject the license depending on whether it will or will not lower costs 
for that particular distributor, and, if the license is not 
sufficiently competitive, the Exchange may lose market share.
    In adopting Regulation NMS, the Commission granted SROs and broker-
dealers 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. The 
Commission concluded that Regulation NMS--by deregulating 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.\21\
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    \21\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496 (June 29, 2005) (``Regulation NMS Adopting 
Release'').

The Commission was speaking to the question of whether broker-dealers 
should be subject to a regulatory requirement to purchase data, such as 
Depth-of-Book data, that is in excess of the data provided through the 
consolidated tape feeds, and the Commission concluded that the choice 
should be left to them. Accordingly, Regulation NMS removed unnecessary 
regulatory restrictions on the ability of exchanges to sell their own 
data, thereby advancing 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 broker-dealers at all, it 
follows that the price at which such data is sold should be set by the 
market as well.
    The proposed change to the PSX rule book is designed to incorporate 
the PSX Last Sale and Nasdaq Last Sale Plus Data Feeds into the market 
data enterprise license proposed by Nasdaq, and the proposed enterprise 
license will compete with other enterprise licenses offered by Nasdaq, 
underlying fee schedules promulgated by the Exchange, and enterprise 
licenses and fee structures implemented by other exchanges. The 
enterprise license is a voluntary product for which market participants 
can readily find substitutes. Accordingly, both PSX and Nasdaq are 
constrained from introducing a fee that would be inequitable or 
unfairly discriminatory.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. This proposal will eliminate 
PSX fees for NLS Plus as part of a market data enterprise license 
proposed by Nasdaq that is intended to lower fees, reduce 
administrative costs, and expand the availability of market data to 
retail investors, which the Exchange expects to lead to increased 
participation in financial markets. It will not impose a burden on 
competition not necessary or appropriate in furtherance of the purposes 
of the Act, but rather will enhance competition by introducing an 
innovative fee structure for market data, lowering prices and enhancing 
competition.
    The market for data products is extremely competitive and firms may 
freely choose alternative venues and data vendors based on the 
aggregate fees assessed, the data offered, and the value provided. 
Numerous exchanges compete with each other for listings, trades, and 
market data itself, providing virtually limitless opportunities for 
entrepreneurs who wish to produce and distribute their own market data. 
This proprietary data is produced by each individual exchange, as well 
as other entities, in a vigorously competitive market.
    Transaction execution and proprietary data products are 
complementary in that market data is both an input and a byproduct of 
the execution service. 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

[[Page 40581]]

execution platform, the cost of implementing cybersecurity to protect 
the data from external threats 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).\22\
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    \22\ 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).
---------------------------------------------------------------------------

    It is costly for the Exchange 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 each are 
subject to significant scale economies. In such cases, marginal cost 
pricing is not feasible because if all sales were priced at the margin, 
the Exchange would be unable to defray its platform costs of providing 
the joint products. Similarly, data products cannot make use of trade 
reports from the TRF without the raw material of the trade reports 
themselves, and therefore necessitate the costs of operating, 
regulating, and maintaining a trade reporting system, costs that must 
be covered through the fees charged for use of the facility and sales 
of associated data.
    An exchange's broker-dealer customers view the costs of transaction 
executions and of data as a unified cost of doing business with the 
exchange. A broker-dealer will disfavor a particular exchange if the 
expected revenues from executing trades on the exchange do not exceed 
net transaction execution costs and the cost of data that the broker-
dealer 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 broker-dealer will 
choose not to buy it. Moreover, as a broker-dealer chooses to direct 
fewer orders to a particular exchange, the value of the product to that 
broker-dealer decreases, for two reasons. First, the product will 
contain less information, because executions of the broker-dealer's 
trading activity will not be reflected in it. Second, and perhaps more 
important, the product will be less valuable to that broker-dealer 
because it does not provide information about the venue to which it is 
directing its orders. Data from the competing venue to which the 
broker-dealer is directing more orders will become correspondingly more 
valuable.
    Similarly, 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 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 impose a discipline by providing 
only data that will enable them to attract ``eyeballs'' that contribute 
to their advertising revenue. Retail broker-dealers offer their retail 
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. Exchanges, TRFs, 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, the Exchange believes that market data 
products can enhance order flow 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.
    In this environment, there is no economic basis for regulating 
maximum prices for one of the joint products in an industry in which 
suppliers face competitive constraints with regard to the joint 
offering. Such regulation is unnecessary because an ``excessive'' price 
for one of the joint products will ultimately have to be reflected in 
lower prices for other products sold by the firm, or otherwise the firm 
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.\23\
---------------------------------------------------------------------------

    \23\ Cf. Ohio v. American Express, No. 16-1454 (S. Ct. June 25, 
2018), https://www.supremecourt.gov/opinions/17pdf/16-1454_5h26.pdf 
(recognizing the need to analyze both sides of a two sided platform 
market in order to determine its competitiveness).
---------------------------------------------------------------------------

    Moreover, the level of competition and contestability in the market 
is evident in the numerous alternative venues that compete for order 
flow, including SRO markets, internalizing broker-dealers 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 broker-dealers to further exploit this 
competition by sending their order flow and transaction reports to 
multiple markets, rather than providing them all to a single market. 
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, broker-dealers, 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 broker-dealer is currently permitted to produce 
proprietary data products, and many currently do or have announced 
plans to do so, including Nasdaq, NYSE, NYSE American, NYSE Arca, IEX, 
and BATS/Direct Edge.

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.\24\
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    \24\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

    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

[[Page 40582]]

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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-Phlx-2018-53 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-Phlx-2018-53. 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 website (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 website 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. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-Phlx-2018-53 and should be submitted on 
or before September 5, 2018.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
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    \25\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-17492 Filed 8-14-18; 8:45 am]
 BILLING CODE 8011-01-P
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