Self-Regulatory Organizations; NYSE American LLC; Notice of Filing of Partial Amendment No. 1 to Proposed Rule Change To Amend the Schedule of Wireless Connectivity Fees and Charges to Add Wireless Connectivity Services, 48052-48057 [2020-17249]
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Federal Register / Vol. 85, No. 153 / Friday, August 7, 2020 / Notices
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
CboeEDGX–2020–038 on the subject
line.
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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–CboeEDGX–2020–038. 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–CboeEDGX–2020–038 and
should be submitted on or before
August 28, 2020.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.18
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020–17239 Filed 8–6–20; 8:45 am]
BILLING CODE 8011–01–P
18 17
CFR 200.30–3(a)(12).
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SECURITIES AND EXCHANGE
COMMISSION
[SEC File No. 270–155, OMB Control No.
3235–0123]
Submission for OMB Review;
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From: Securities and Exchange
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Extension:
Rule 17a–5
Notice is hereby given that pursuant
to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) (‘‘PRA’’), the
Securities and Exchange Commission
(‘‘Commission’’) has submitted to the
Office of Management and Budget
(‘‘OMB’’) a request for approval of
extension of the previously approved
collection of information provided for in
Rule 17a–5 (17 CFR 240.17a–5), under
the Securities Exchange Act of 1934 (15
U.S.C. 78a et seq.).
Rule 17a–5 is the basic financial
reporting rule for brokers and dealers.1
The rule requires the filing of Form X–
17A–5, the Financial and Operational
Combined Uniform Single Report
(‘‘FOCUS Report’’), which was the result
of years of study and comments by
representatives of the securities industry
through advisory committees and
through the normal rule proposal
methods. The FOCUS Report was
designed to eliminate the overlapping
regulatory reports required by various
self-regulatory organizations and the
Commission and to reduce reporting
burdens as much as possible. The rule
also requires the filing of an annual
audited report of financial statements.
The FOCUS Report consists of: (1)
Part I, which is a monthly report that
must be filed by brokers or dealers that
clear transactions or carry customer
securities; (2) one of three alternative
quarterly reports: Part II, which must be
filed by brokers or dealers that clear
transactions or carry customer
securities; Part IIA, which must be filed
by brokers or dealers that do not clear
transactions or carry customer
securities; and Part IIB, which must be
filed by specialized broker-dealers
registered with the Commission as OTC
derivatives dealers; 2 (3) supplemental
schedules, which must be filed
1 Rule
17a–5(c) requires a broker or dealer to
furnish certain of its financial information to
customers and is subject to a separate PRA filing
(OMB Control Number 3235–0199).
2 Part IIB of Form X–17A–5 must be filed by OTC
derivatives dealers under Exchange Act Rule 17a–
12 and is subject to a separate PRA filing (OMB
control number 3235–0498).
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annually; and (4) a facing page, which
must be filed with the annual audited
report of financial statements. Under the
rule, a broker or dealer that computes
certain of its capital charges in
accordance with Appendix E to
Exchange Act Rule 15c3–1 must file
additional monthly, quarterly, and
annual reports with the Commission.
The Commission estimates that the
total hour burden under Rule 17a–5 is
approximately 328,746 hours per year
when annualized, and the total cost
burden under Rule 17a–5 is
approximately $35,287,127 per year.
An agency may not conduct or
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respond to, a collection of information
under the PRA unless it displays a
currently valid OMB control number.
The public may view background
documentation for this information
collection at the following website:
www.reginfo.gov. Find this particular
information collection by selecting
‘‘Currently under 30-day Review—Open
for Public Comments’’ or by using the
search function. Written comments and
recommendations for the proposed
information collection should be sent
within 30 days of publication of this
notice to (i) >MBX.OMB.OIRA.SEC_
desk_officer@omb.eop.gov< and (ii)
David Bottom, Director/Chief
Information Officer, Securities and
Exchange Commission, c/o Cynthia
Roscoe, 100 F Street NE, Washington,
DC 20549, or by sending an email to:
PRA_Mailbox@sec.gov.
Dated: August 3, 2020.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020–17259 Filed 8–6–20; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–89459; File No. SR–
NYSEAMER–2020–10]
Self-Regulatory Organizations; NYSE
American LLC; Notice of Filing of
Partial Amendment No. 1 to Proposed
Rule Change To Amend the Schedule
of Wireless Connectivity Fees and
Charges to Add Wireless Connectivity
Services
August 3, 2020.
I. Introduction
On February 12, 2020, NYSE
American LLC (‘‘NYSE American’’ or
‘‘Exchange’’) filed with the Securities
and Exchange Commission
(‘‘Commission’’), pursuant to Section
19(b)(1) of the Securities Exchange Act
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of 1934 (‘‘Exchange Act’’ or ‘‘Act’’) 1 and
Rule 19b–4 thereunder,2 a proposed rule
change (SR–NYSEAMER–2020–10) to
amend the schedule of Wireless
Connectivity Fees and Charges
(‘‘Wireless Fee Schedule’’) to add
wireless connectivity services that
transport the market data of certain
affiliates of the Exchange.
The Commission published the
proposed rule change for public
comment in the Federal Register on
February 25, 2020.3 The Commission
received several comments on the
proposed rule change, and a response
from the Exchange.4 On April 1, 2020,
pursuant to Section 19(b)(2) of the Act,5
the Commission designated a longer
period within which to either approve
the proposed rule change, disapprove
the proposed rule change, or institute
proceedings to determine whether to
disapprove the proposed rule change.6
On May 18, 2020, the Commission
instituted proceedings to determine
whether to approve or disapprove the
proposed rule change.7 The Commission
received additional comments in
response to the Order Instituting
Proceedings.8
On July 27, 2020, the Exchange filed
Partial Amendment No. 1 to the
proposed rule change in response to
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 See Securities Exchange Act Release No. 88238
(February 19, 2020), 85 FR 10776 (February 25,
2020) (SR–NYSEAMER–2020–10) (‘‘Wireless II
Notice’’). See also Securities Exchange Act Release
Nos. 88237 (February 19, 2020), 85 FR 10752
(February 25, 2020) (SR–NYSE–2020–11); 88239
(February 19, 2020), 85 FR 10786 (February 25,
2020) (SR–NYSEArca–2020–15); 88240 (February
19, 2020), 85 FR 10795 (February 25, 2020) (SR–
NYSECHX–2020–05); and 88241 (February 19,
2020), 85 FR 10738 (February 25, 2020) (SR–
NYSENAT–2020–08).
4 Comments received on the Wireless II Notice
and the Exchange’s response are available on the
Commission’s website at: https://www.sec.gov/
comments/sr-nyseamer-2020-10/
srnyseamer202010.htm.
5 15 U.S.C. 78s(b)(2).
6 See Securities Exchange Act Release No. 88540
(April 1, 2020), 85 FR 19562 (April 7, 2020). The
Commission designated May 25, 2020, as the date
by which it should approve, disapprove, or institute
proceedings to determine whether to disapprove the
proposed rule changes.
7 See Securities Exchange Act Release No. 88901
(May 18, 2020), 85 FR 31273 (May 22, 2020) in
which the Commission instituted proceedings
(‘‘Order Instituting Proceedings’’ or ‘‘OIP’’).
8 Comments received on the Wireless II Notice
following the OIP also are available on the
Commission’s website at: https://www.sec.gov/
comments/sr-nyseamer-2020-10/
srnyseamer202010.htm.
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certain comments on the proposed rule
change. Partial Amendment No. 1 is
described in Item II below, which has
been substantially prepared by the
Exchange.9 The Commission is
publishing this notice to solicit
comments on Partial Amendment No. 1
from interested persons.10
II. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Amendment
NYSE American LLC (‘‘NYSE
American’’ or the ‘‘Exchange’’) hereby
submits this Partial Amendment No. 1
to the above-referenced filing (‘‘Filing’’)
in connection with the proposed rule
change to add wireless connectivity that
transport the market data of certain
affiliates of the Exchange to the
schedule of Wireless Connectivity Fees
and Charges (the ‘‘Wireless Fee
Schedule’’). With this Partial
Amendment No. 1, the Exchange
proposes a new rule to place restrictions
on the use of a pole on the grounds of
the Mahwah, New Jersey data center
that is used for wireless connectivity
services that transport the market data
of certain affiliates of the Exchange.
The Exchange proposes the following
amendments to the Filing:
1. The Exchange proposes to amend
the first paragraph in Item 1(a) on page
3 of the Filing:
The wireless connectivity services do
not transport market data of the
Exchange. Accordingly, the Exchange
proposes to amend the first paragraph of
Item 1(a) on page 3 of the Filing to
reflect that fact and to add text to
describe the proposed rule change.
Specifically, it proposes to add ‘‘(a)’’
before ‘‘wireless connectivity services’’;
delete ‘‘the Exchange and’’; add ‘‘of the
Exchange’’ after ‘‘certain affiliates’’; and
add new text at the end of the paragraph
9 The Commission has reformatted the Exchange’s
presentation of the footnotes.
10 Partial Amendment No. 1 is also available on
the Commission’s website at: https://www.sec.gov/
comments/sr-nyseamer-2020-10/
srnyseamer202010.htm. The Commission also refers
interested persons to Securities Exchange Act
Release No. 88169 (February 11, 2020), 85 FR 8946
(February 18, 2020) (SR–NYSEAMER–2020–05)
(wherein the Exchange filed a proposed rule change
to establish the Wireless Fee Schedule listing
available wireless bandwidth connections between
the Mahwah, New Jersey data center and other data
centers (‘‘Wireless I’’) and concurrently proposes to
partially amend Wireless I). Partial Amendment No.
1 to Wireless I is available on the Commission’s
website at: https://www.sec.gov/comments/srnyseamer-2020-05/srnyseamer202005.htm.
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to describe the proposed rule change, as
follows (new text italicized, deletions in
[brackets]):
Pursuant to the provisions of Section
19(b)(1) of the Securities Exchange Act of
1934 (the ‘‘Act’’) 1 and Rule 19b–4
thereunder,2 NYSE American LLC (‘‘NYSE
American’’ or the ‘‘Exchange’’) proposes to
add (a) wireless connectivity services that
transport the market data of [the Exchange
and] certain affiliates of the Exchange to the
schedule of Wireless Connectivity Fees and
Charges (the ‘‘Wireless Fee Schedule’’); and
(b) a new rule to place restrictions on the use
of a pole on the grounds of the Mahwah, New
Jersey data center that is used for such
wireless connectivity services.
2. The Exchange proposes to amend
the carryover paragraph on pages 3 and
4 of the Filing (second full paragraph on
page 24 of the Exhibit 1):
The Exchange proposes to add amend
the carryover paragraph on pages 3 and
4 of the Filing (second full paragraph on
page 24 of the Exhibit 1) to add ‘‘(a)’’
before ‘‘wireless connectivity services’’
and add new text to describe the
proposed rule change, as follows (new
text italicized, deletion in [brackets]):
The Exchange proposes to add (a) wireless
connectivity services that transport market
data of three Exchange affiliates, New York
Stock Exchange LLC (‘‘NYSE’’), NYSE Arca,
Inc. (‘‘NYSE Arca’’) and NYSE National, Inc.
(‘‘NYSE National’’) to the Wireless Fee
Schedule[.],3/4 and (b) a new rule to place
restrictions on the use of a pole on the
grounds of the Mahwah, New Jersey data
center that is used for such wireless
connectivity services. A market participant is
not able to use the wireless connectivity
services to connect to Exchange market data.
3. The Exchange proposes to add a
new section titled ‘‘Proposed New Rule’’
and accompanying footnotes after the
first full paragraph on page 14 of the
Filing (carryover paragraph on pages 39
and 40 of the Exhibit 1):
The Exchange proposes a new rule to
place restrictions on the use of a pole on
the grounds of the Mahwah, New Jersey
data center that is used for wireless
connectivity services. Accordingly, the
Exchange proposes to add a new section
titled ‘‘Proposed New Rule’’ and
accompanying footnotes (subsequent
footnotes would be renumbered in a
conforming change) after the first full
paragraph on page 14 of the Filing
(carryover paragraph on pages 39 and 40
of the Exhibit 1), after the end of the
section titled ‘‘The Proposed Service
and Fees,’’ as follows (all text is new):
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Proposed New Rule
Since 2016, IDS has had the use of a pole
on the grounds of the Mahwah data
center.27/28 The data center pole is part of the
network utilized for the Wireless Market Data
Connections to the Carteret and Secaucus
Third Party Data Centers.28/29 At the data
center pole, the wireless connection to the
Third Party Data Centers converts to a fiber
connection, and the fiber connection travels
from the data center pole into the Mahwah
data center.29/30 The equipment on the data
center pole belongs to IDS and Anova
Technologies, LLC (‘‘Anova’’), the non-ICE
entity that owns the wireless network used
for the Wireless Market Data Connections to
Secaucus and Carteret.30/31
Other third parties that offer wireless
services utilize commercial poles located
outside the grounds of the Mahwah, New
Jersey data center for their wireless networks.
A third party’s wireless connections to the
Third Party Data Center convert to fiber
connections at the commercial pole, and the
fiber connects the commercial pole to the
Mahwah data center.
Several such third parties have objected to
the use of the data center pole for the
Wireless Market Data Connections. They
argue that IDS has an advantage over its
competitors because third parties are not
allowed access to the data center pole,31/32
and the data center pole is closer to the
Mahwah data center than any commercial
pole.32/33 At least one third party has raised
the additional concern that the Wireless
Market Data Connections may benefit from
‘‘less obvious and more discreet types of
latency advantages’’ due to infrastructure
inside the Mahwah data center, noting that
‘‘some connections may have a longer fiber
route than others within a data center or may
have to go through various equipment or
meet me rooms that an affiliate or preferred
provider of an exchange do not.’’ 33/34
The Exchange is proposing a new Rule
3.14E (Data Center Pole Latency
Restrictions—Connectivity to Production of
Exchange Market Data) that would require
that the length of the connection from the
data center pole to the point inside the
Mahwah data center where Exchange market
data is produced be no less than the length
of the connection from the closest
commercial pole to the same point. By
requiring that the compared connections both
extend to where Exchange market data is
produced, the proposed rule would take
distances within the Mahwah data center
into account.
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The proposed rule would include the
following definitions:
• ‘‘Commercial Pole’’ would mean a pole
(a) on which one or more third parties locate
wireless equipment used to offer wireless
connectivity to other third parties, and (b)
from which a fiber connection extends from
third party equipment on the pole to the Data
Center.
• ‘‘Data Center’’ would mean the Mahwah,
New Jersey data center where the Exchange’s
matching engine is located, or its successor.
• ‘‘Data Center Pole’’ would mean a pole
that (a) holds wireless equipment, (b) is
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located within the grounds of the Data
Center, and (c) cannot be used by third
parties other than third parties with which
the Exchange or an ICE Affiliate has an
agreement to provide services in the name of
the Exchange or an ICE Affiliate.
• ‘‘ICE Affiliate’’ would mean
Intercontinental Exchange, Inc. (‘‘ICE’’) and
any entity that directly or indirectly, through
one or more intermediaries, controls, is
controlled by, or is under common control
with ICE, where ‘‘control’’ means that one
entity possesses, directly or indirectly, voting
control of the other entity either through
ownership of capital stock or other equity
securities or through majority representation
on the board of directors or other
management body of such entity.
The proposed rule would require that:
the length of the connection between (a) the
base of the Data Center Pole and (b) the point
inside the Data Center where Exchange
market data is produced shall be no less than
the length of the connection between (x) the
base of the closest Commercial Pole and (y)
the point inside the Data Center where
Exchange market data is produced.
27/28 See Securities Exchange Act Release No.
76750 (December 23, 3015), 80 FR 81648
(December 30, 2015) (SR–NYSEMKT–
2015–85) (Order Approving Proposed
Rule Change to the Co-location Services
Offered by the Exchange (the Offering of
a Wireless Connection to Allow Users to
Receive Market Data Feeds from Third
Party Markets) and to Reflect Changes to
the NYSE MKT Equities Price List and
the NYSE Amex Options Fee Schedule
Related to These Services).
28/29 The Wireless Market Data Connections
with Markham, Canada do not use
equipment on the data center pole.
29/30 The wireless network similarly converts
to a fiber connection for its connection
into the Third Party Data Centers.
30/31 Equipment for services Anova offers
under its own name is not allowed on
the data center pole.
31/32 IDS does not sell rights to third parties
to operate wireless equipment on the
data center pole due to space limitations,
security concerns, and the interference
that would arise between equipment
placed too closely together.
32/33 See letter from Gregory Babyak, Global
Head of Regulatory Affairs, Bloomberg
L.P., to Ms. Vanessa Countryman,
Secretary, Securities and Exchange
Commission (‘‘Commission’’), dated June
12, 2020; letter from Stephen John
Berger, Managing Director, Global Head
of Government and Regulatory Policy,
Citadel Securities, to Ms. Vanessa
Countryman, Secretary, Commission,
dated June 12, 2020; letter from Jim
Considine, Chief Financial Officer,
McKay Brothers LLC (‘‘McKay
Brothers’’), to Ms. Vanessa Countryman,
Secretary, Commission, dated June 12,
2020 (‘‘McKay Letter’’); and letter from
Thomas M. Merritt, Deputy General
Counsel, Virtu Financial, Inc. to Ms.
Vanessa Countryman, Secretary,
Commission, dated March 10, 2020.
33/34 McKay Letter, supra note 32/33, at 9.
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4. The Exchange proposes to add new
text after the carryover paragraph on
pages 15 and 16 of the Filing (carryover
paragraph on pages 41 and 42 of the
Exhibit 1):
The Exchange proposes to amend the
Filing to include additional analysis on
the competitive environment for
wireless connections. Accordingly, the
Exchange proposes to add a paragraph
and accompanying footnotes
(subsequent footnotes would be
renumbered in a conforming change)
after the carryover paragraph on pages
15 and 16 of the Filing (carryover
paragraph on pages 41 and 42 of the
Exhibit 1), as follows (all text is new):
Such competitors can offer wireless
connectivity to Selected Market Data or other
Exchange market data in the Third Party Data
Centers by obtaining the market data at the
Mahwah data center and sending it over their
wireless network to the Third Party Data
Centers.37/38 The Exchange believes that its
competitors’ wireless connections provide
connectivity at the same or similar speed as
the Wireless Market Data Connections, and at
the same or similar cost. Indeed, the McKay
Letter acknowledges that McKay Brothers has
the fastest wireless network.38/39
37/38 A market participant in any of the Third
Party Data Centers or the Mahwah data
center also may create a proprietary
wireless market data connection, connect
through another market participant, or
utilize fiber connections offered by the
Exchange, ICE Affiliates, and other
service providers and third party
telecommunications providers.
38/39 McKay Letter, supra note 32/33, at 4.
5. The Exchange proposes to amend
the Statutory Basis section of the Filing
after the second full paragraph on page
18 of the Filing (third full paragraph on
page 45 of the Exhibit 1):
The Exchange proposes to include
information in the Filing regarding why
it believes the proposed new rule is
reasonable. The Exchange proposes to
amend the Statutory Basis section of the
Filing to add new paragraphs and
accompanying footnotes (subsequent
footnotes would be renumbered in a
conforming change) after the second full
paragraph on page 18 of the Filing (third
full paragraph on page 45 of the Exhibit
1), at the end of the section titled ‘‘The
Proposed Change is Reasonable,’’ as
follows (all text is new):
The Exchange believes that the proposed
new Rule 3.14E would be reasonable as,
pursuant to the rule, the networks for the
Wireless Market Data Connections, and
future wireless connections that use a Data
Center Pole, would ‘‘operat[e] in the same
manner as competitors do today without a
latency subsidy or other advantage provided
by the Exchanges. . . .’’ 43/44 Accordingly,
the proposed new rule would promote just
and equitable principles of trade and, in
general, protect investors and the public
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interest by ensuring that the subscribers to
services using the IDS wireless network do
not benefit from any physical proximity ‘‘on
the segment [of the network] closest to the
Exchanges’ data center that no competitor
can replicate.’’ 44/45 By ending both of the
compared connections at the point inside the
Data Center where Exchange market data is
produced, the proposed rule would take
distances within the Mahwah data center
into account. 45/46 The proposed new rule
would not apply differently to distinct types
or sizes of market participants. The Exchange
would be required to ensure that the length
of the connection between (a) the base of the
Data Center Pole and (b) the point inside the
Data Center where Exchange market data is
produced, would be no less than the length
of the connection between (x) the base of the
closest Commercial Pole and (y) the point
inside the Data Center where Exchange
market data is produced.
The Exchange believes that the proposed
definition of ‘‘Commercial Pole’’ is
reasonable and would promote just and
equitable principles of trade because it would
encompass any pole on which a third party
locates its wireless equipment in order to
offer wireless connectivity to customers. The
Exchange believes that such third parties are
the direct competitors for the Wireless
Market Data Connections, as they also offer
wireless connections to customers. If a third
party used a pole for a proprietary wireless
network and that pole does not have one or
more third parties’ wireless equipment used
to offer wireless connectivity to other third
parties, that pole would not fall within the
scope of the definition of Commercial Pole.
The Exchange believes that the proposed
definition of ‘‘Data Center’’ is reasonable and
would promote just and equitable principles
of trade because it would capture any data
center to which the Exchange locates its
matching engine.
The Exchange believes that the proposed
definition of ‘‘Data Center Pole’’ is reasonable
and would promote just and equitable
principles of trade because it would
encompass not just the current pole, but also
any additional or successor pole on the
grounds of the Data Center, so long as such
pole could not be used by third parties other
than third parties with which the Exchange
or an ICE Affiliate had an agreement to
provide services in the name of the Exchange
or an ICE Affiliate, such as Anova.
The Exchange believes that the definition
of ‘‘ICE Affiliate’’ is reasonable and would
promote just and equitable principles of trade
because the same definition is used in Rule
497-Equities (Affiliation between Exchange
and a Member Organization),46/47 and so
using it would add transparency, clarity and
internal consistency to Exchange rules.
43/44 McKay Letter, supra note 32/33, at 7.
44/45 Id, at note 33.
45/46 Each of the Affiliate SROs is filing for a
rule change that is substantially similar
to the proposed Exchange rule.
Assuming such filings are approved by
the Commission, to the extent that the
market data of an Affiliate SRO is
produced separately from where the
Exchange market data is produced, the
wireless connection to that Affiliate
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SRO’s market data would be captured by
that Affiliate SRO’s rule.
46/47 The definition of ICE has been added to
the text.
6. The Exchange proposes to amend
the Statutory Basis section of the Filing
after the fifth full paragraph on page 19
of the Filing (carryover paragraph on
pages 47 and 48 of the Exhibit 1):
The Exchange proposes to include
information in the Filing regarding why
it believes the proposed new rule is not
unfairly discriminatory. The Exchange
proposes to amend the Statutory Basis
section of the Filing to add new
paragraphs and accompanying footnotes
(subsequent footnotes would be
renumbered in a conforming change)
after the fifth full paragraph on page 19
of the Filing (carryover paragraph on
pages 47 and 48 of the Exhibit 1),
immediately prior to the last paragraph
of the section titled ‘‘The Proposed
Change is Not Unfairly Discriminatory,’’
as follows (all text is new):
The Exchange believes that the proposed
new Rule 3.14E would not be unfairly
discriminatory, as pursuant to the rule, the
networks for the Wireless Market Data
Connections, and future wireless connections
that use the Data Center Pole, would
‘‘operat[e] in the same manner as competitors
do today without a latency subsidy or other
advantage provided by the
Exchanges. . . .’’ 47/48 Accordingly, the
proposed new rule would ensure that the IDS
wireless network does not benefit from
physical proximity ‘‘on the segment [of the
network] closest to the Exchanges’ data
center that no competitor can replicate.’’ 48/49
By ending both of the compared connections
at the point inside the Data Center where
Exchange market data is produced, the
proposed rule would take distances within
the Mahwah data center into account.
The proposed new rule would not apply
differently to distinct types or sizes of market
participants. The Exchange would be
required to ensure that the length of the
connection between (a) the base of the Data
Center Pole and (b) the point inside the Data
Center where Exchange market data is
produced, would be no less than the length
of the connection between (x) the base of the
closest Commercial Pole and (y) the point
inside the Data Center where Exchange
market data is produced.
The Exchange believes that the proposed
definition of ‘‘Commercial Pole’’ would not
be unfairly discriminatory because it would
encompass any pole on which a third party
locates its wireless equipment in order to
offer wireless connectivity to customers. The
Exchange believes that such third parties are
the direct competitors for the Wireless
Market Data Connections, as they also offer
wireless connections to customers. If a third
party used a pole for a proprietary wireless
network and that pole does not have one or
more third parties’ wireless equipment used
to offer wireless connectivity to other third
parties, that pole would not fall within the
scope of the definition of Commercial Pole.
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The Exchange believes that the proposed
definition of ‘‘Data Center’’ would not be
unfairly discriminatory because it would
capture any data center to which the
Exchange locates its matching engine.
The Exchange believes that the proposed
definition of ‘‘Data Center Pole’’ would not
be unfairly discriminatory because it would
encompass not just the current pole, but also
any additional or successor pole on the
grounds of the Data Center, so long as such
pole could not be used by third parties other
than third parties with which the Exchange
or an ICE Affiliate had an agreement to
provide services in the name of the Exchange
or an ICE Affiliate, such as Anova.
The Exchange believes that the definition
of ‘‘ICE Affiliate’’ would not be unfairly
discriminatory because the same definition is
used in Rule 497-Equities 49/50 and so using
it would add transparency, clarity and
internal consistency to Exchange rules.
47/48 McKay Letter, supra note 32/33, at 7.
48/49 Id., at note 33.
49/50 The definition of ICE has been added to
the text.
7. The Exchange proposes to amend
the section of the Filing titled ‘‘SelfRegulatory Organization’s Statement on
Burden on Competition’’ in the
following two ways:
The Exchange proposes to include
information in the Filing regarding why
it believes the proposed new rule would
impose any burden on competition that
is not necessary or appropriate in
furtherance of the purposes of Section
6(b)(8) of the Securities Exchange Act of
1934 (the ‘‘Act’’).11 Accordingly, the
Exchange proposes to amend the section
of the Filing titled ‘‘Self-Regulatory
Organization’s Statement on Burden on
Competition’’ in the following two
ways.
First, to set the new text apart from
the previous discussion regarding the
burden on competition, the Exchange
proposes to add the heading ‘‘Wireless
Market Data Connectivity’’ immediately
before the first full paragraph under the
heading on page 20 of the Filing (page
48 of the Exhibit 1). The new heading
would apply to the current text of the
Filing.
Second, after the third full paragraph
on page 22 of the Filing (first full
paragraph on page 51 of the Exhibit 1),
the Exchange proposes to add the
heading ‘‘Proposed New Rule’’ and new
paragraphs and accompanying footnotes
(subsequent footnotes would be
renumbered in a conforming change), as
follows (all text is new):
Proposed New Rule
The Exchange does not believe that the
proposed new rule would impose any burden
on competition that is not necessary or
appropriate in furtherance of the purposes of
Section 6(b)(8) of the Act.52/53
11 15
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With the exception of Anova, third parties
do not have access to the data center pole.
Under the proposed rule, the Exchange
would always be obligated to ensure that the
length of the connection between (a) the base
of the Data Center Pole and (b) the point
inside the Data Center where Exchange
market data is produced, would be no less
than the length of the connection between (x)
the base of the closest Commercial Pole and
(y) the point inside the Data Center where
Exchange market data is produced.
IDS, not the Exchange, provides the
Wireless Market Data Connections to market
participants, and so it would be IDS that
would have to slow its connection down as
required by the rule. Accordingly, the
Exchange believes that the only burden on
competition of the proposed change would
be on IDS.
Nonetheless, the Exchange believes that
the proposed rule change would not impose
any burden on competition that is not
necessary or appropriate because the
proposed change would ensure that the IDS
wireless network did not benefit from
physical proximity ‘‘on the segment [of the
network] closest to the Exchanges’ data
center that no competitor can replicate.’’ 53/54
The networks for the Wireless Market Data
Connections, and future wireless connections
that use the Data Center Pole, would
‘‘operat[e] in the same manner as competitors
do today without a latency subsidy or other
advantage provided by the
Exchanges. . . .’’ 54/55
The proposed rule would not otherwise
put a burden on competition. As noted
above, access to the data center pole is not
required for third parties to establish wireless
networks that can compete with the Wireless
Market Data Connections to the Carteret and
Secaucus Third Party Data Centers, as
evidenced by the existing wireless
connections offered by third party
competitors.55/56 Such competitors can offer
wireless connectivity to Selected Market Data
or other Exchange market data in the Third
Party Data Centers by obtaining the market
data at the Mahwah data center and sending
it over their wireless network to the Third
Party Data Centers.56/57 Indeed, the Exchange
believes that its competitors’ wireless
connections provide connectivity at the same
or similar speed as the Wireless Market Data
Connections, and at the same or similar cost.
The McKay Letter acknowledges that McKay
Brothers has the fastest wireless network.57/58
The Exchange notes that proximity to a
data center is not the only determinant of a
wireless network’s latency. Rather, the
latency of a wireless network depends on
several factors. Variables include the wireless
equipment utilized; the route of, and number
of towers or buildings in, the network; and
the fiber equipment used at either end of the
connection. Moreover, latency is not the only
consideration that a customer may have in
selecting a wireless network to connect to for
market data. Other considerations may
include the amount of network uptime; the
equipment that the network uses; the cost of
the connection; and the applicable
contractual provisions.
The proposed change does not affect
competition among national securities
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exchanges or among members of the
Exchange, but rather between IDS and its
commercial competitors.
52/53 15 U.S.C. 78f(b)(8).
53/54 McKay Letter, supra note 32/33, at note
33.
54/55 Id., at 7.
55/56 Based on the information available to it,
the Exchange believes that a market
participant in the Carteret or Secaucus
Third Party Data Center may purchase a
wireless connection to the NYSE and
NYSE Arca Integrated Feed data feeds
from at least two other providers of
wireless connectivity.
56/57 A market participant in any of the Third
Party Data Centers or the Mahwah data
center also may create a proprietary
wireless market data connection, connect
through another market participant, or
utilize fiber connections offered by the
Exchange, ICE Affiliates, and other
service providers and third party
telecommunications providers.
57/58 Id., at 4.
8. The Exchange proposes to add a
list under ‘‘Exhibit 5—Text of the
Proposed Rule Change’’ on page 22 of
the Filing:
The Exchange proposes to add a new
Exhibit 5B. Accordingly, the Exchange
proposes to add a list under ‘‘Exhibit
5—Text of Proposed Rule Change’’ on
page 22 of the Filing, as follows (new
text italicized):
Exhibit 5—Text of the Proposed Rule Change
A. Text of the Proposed Schedule of Wireless
Connectivity Fees and Charges
B. Text of the Proposed Rule
9. The Exchange proposes to add new
text to the first full paragraph of Section
I on page 23 of the Exhibit 1:
The Exchange proposes to add new
text to the first full paragraph of Section
I on page 23 of the Exhibit 1, as follows
(new text italicized):
The Exchange proposes to add wireless
connectivity services that transport the
market data certain affiliates of the Exchange
to the schedule of Wireless Connectivity Fees
and Charge (the ‘‘Wireless Fee Schedule’’)
and add a new rule to place restrictions on
the use of a pole on the grounds of the
Mahwah, New Jersey data center that is used
for such wireless connectivity services. The
proposed rule change is available on the
Exchange’s website at www.nyse.com, at the
principal office of the Exchange, and at the
Commission’s Public Reference Room.
10. The Exchange proposes to amend
‘‘Exhibit 5’’ to ‘‘Exhibit 5A’’ on page 54
of the Exhibit 5:
To reflect the addition of a new
Exhibit 5B, the Exchange proposes to
add ‘‘A’’ to ‘‘EXHIBIT 5’’ on page 54 of
the Exhibit 5, to make it ‘‘EXHIBIT 5A’’.
*
*
*
*
*
All other representations in the Filing
remain as stated therein and no other
changes are being made.
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III. Date of Effectiveness of the
Proposed Rule Change As Modified By
Partial Amendment No. 1 and Timing
for Commission Action
Within 180 days after the date of
publication of the initial Notice of Filing
in the Federal Register or within such
longer period up to an additional 60
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 issue an
order approving or disapproving such
proposed rule change, as amended.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change, as amended by Partial
Amendment No. 1, is consistent with
the Act. Comments may be submitted by
any of the following methods:
Electronic Comments
• Use the Commission’s internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
NYSEAMER–2020–10 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–NYSEAMER–2020–10. 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
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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–NYSEAMER–2020–10, and
should be submitted on or before
August 28, 2020.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.12
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020–17249 Filed 8–6–20; 8:45 am]
BILLING CODE 8011–01–P
DEPARTMENT OF STATE
[Public Notice:11174]
Notice of Determinations; Culturally
Significant Objects Being Imported for
Exhibition—Determinations: ‘‘Dora
Maar’’ Exhibition
Notice is hereby given of the
following determinations: I hereby
determine that certain objects being
imported from abroad pursuant to
agreements with their foreign owners or
custodians for temporary display in the
exhibition ‘‘Dora Maar’’ at The J. Paul
Getty Museum at the Getty Center, Los
Angeles, California, and at possible
additional exhibitions or venues yet to
be determined, are of cultural
significance, and, further, that their
temporary exhibition or display within
the United States as aforementioned is
in the national interest. I have ordered
that Public Notice of these
determinations be published in the
Federal Register. This notice supersedes
the Federal Register notice that was
published on March 5, 2020, on page
12957 (volume 85, number 44).
FOR FURTHER INFORMATION CONTACT: Chi
D. Tran, Program Administrator, Office
of the Legal Adviser, U.S. Department of
State (telephone: 202–632–6471; email:
section2459@state.gov). The mailing
address is U.S. Department of State, L/
PD, SA–5, Suite 5H03, Washington, DC
20522–0505.
SUPPLEMENTARY INFORMATION: The
foregoing determinations were made
pursuant to the authority vested in me
by the Act of October 19, 1965 (79 Stat.
985; 22 U.S.C. 2459), Executive Order
12047 of March 27, 1978, the Foreign
jbell on DSKJLSW7X2PROD with NOTICES
SUMMARY:
12 17
CFR 200.30–3(a)(12).
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Affairs Reform and Restructuring Act of
1998 (112 Stat. 2681, et seq.; 22 U.S.C.
6501 note, et seq.), Delegation of
Authority No. 234 of October 1, 1999,
and Delegation of Authority No. 236–3
of August 28, 2000.
Marie Therese Porter Royce,
Assistant Secretary, Educational and Cultural
Affairs, Department of State.
[FR Doc. 2020–17290 Filed 8–6–20; 8:45 am]
BILLING CODE 4710–05–P
SURFACE TRANSPORTATION BOARD
[Docket No. FD 36421]
Cathcart Rail, LLC—Continuance in
Control Exemption—Belpre Industrial
Parkersburg Railroad, LLC
Cathcart Rail, LLC (CRL), a noncarrier
holding company, has filed a verified
notice of exemption under 49 CFR
1180.2(d)(2) to continue in control of
Belpre Industrial Parkersburg Railroad,
LLC (BIP), upon BIP’s becoming a Class
III rail carrier.1
This transaction is related to a
verified notice of exemption filed in
Docket No. FD 36388, where the Board
authorized BIP to lease and operate
approximately 46.9 miles of rail lines
(the Lines) and yard property owned by
CSX Transportation, Inc. See Belpre
Indus. Parkersburg R.R.—Lease &
Operation Exemption—CSX Transp.,
Inc., FD 36388 (STB served Apr. 3,
2020).2
The verified notice states that: (1) The
Lines to be operated by BIP do not
connect with those of BIR; (2) the
transaction is not part of a series of
anticipated transactions that would
connect the Lines to any of the tracks of
BIR; and (3) the transaction does not
involve a Class I rail carrier. The
proposed transaction is therefore
exempt from the prior approval
requirements of 49 U.S.C. 11323. See 49
CFR 1180.2(d)(2).
The earliest this transaction may be
consummated is August 22,2020, the
effective date of the exemption (30 days
after the verified notice was filed).3
Under 49 U.S.C. 10502(g), the Board
may not use its exemption authority to
1 According to the verified notice, CRL currently
controls Bucyrus Industrial Railroad, LLC (BIR). See
also Bucyrus Indus. R.R.—Operation Exemption—
Bucyrus Railcar Repair, LLC, FD 36329, slip op. at
1 n.1 (STB served July 25, 2019).
2 CRL states that, due to an unintentional
oversight, it failed to file this verified notice of
exemption concurrently with the verified notice of
exemption in Docket No. FD 36388.
3 CRL requests that the exemption be effective
retroactive to the date BIP’s lease and operation
exemption became effective in Docket No. FD
36388. However, the class exemption invoked by
CRL does not provide for retroactive effectiveness.
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48057
relieve a rail carrier of its statutory
obligation to protect the interests of its
employees. However, 49 U.S.C. 11326(c)
does not provide for labor protection for
transactions under 49 U.S.C. 11324 and
11325 that involve only Class III rail
carriers. Because this transaction
involves Class III rail carriers only, the
Board, under the statute, may not
impose labor protective conditions for
this transaction.
If the verified notice contains false or
misleading information, the exemption
is void ab initio. Petitions to revoke the
exemption under 49 U.S.C. 10502(d)
may be filed at any time. The filing of
a petition to revoke will not
automatically stay the effectiveness of
the exemption. Petitions to stay must be
filed no later than August 14, 2020 (at
least seven days before the exemption
becomes effective).
All pleadings, referring to Docket No.
FD 36421, must be filed with the
Surface Transportation Board either via
e-filing or in writing addressed to 395 E
Street SW, Washington, DC 20423–0001.
In addition, a copy of each pleading
must be served on CRL’s representative,
David F. Rifkind, Stinson LLP, 1775
Pennsylvania Avenue NW, Suite 800,
Washington, DC 20006.
According to the verified notice, this
action is categorically excluded from
environmental review under 49 CFR
1105.6(c) and from historic preservation
reporting requirements under 49 CFR
1105.8(b)(1).
Board decisions and notices are
available at www.stb.gov.
Decided: August 3, 2020.
By the Board, Allison C. Davis, Director,
Office of Proceedings.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2020–17265 Filed 8–6–20; 8:45 am]
BILLING CODE 4915–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket Number: FAA 2020–0752]
Service Difficulty Report; Agency
Information Collection Activities:
Requests for Comments; Clearance of
a Renewed Approval of Information
Collection: 49 U.S.C. 44701/Service
Difficulty Report
Federal Aviation
Administration (FAA), Transportation
(DOT).
ACTION: Notice and request for
comments.
AGENCY:
In accordance with the
Paperwork Reduction Act of 1995, FAA
SUMMARY:
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]]>Agencies
[Federal Register Volume 85, Number 153 (Friday, August 7, 2020)]
[Notices]
[Pages 48052-48057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17249]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-89459; File No. SR-NYSEAMER-2020-10]
Self-Regulatory Organizations; NYSE American LLC; Notice of
Filing of Partial Amendment No. 1 to Proposed Rule Change To Amend the
Schedule of Wireless Connectivity Fees and Charges to Add Wireless
Connectivity Services
August 3, 2020.
I. Introduction
On February 12, 2020, NYSE American LLC (``NYSE American'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act
[[Page 48053]]
of 1934 (``Exchange Act'' or ``Act'') \1\ and Rule 19b-4 thereunder,\2\
a proposed rule change (SR-NYSEAMER-2020-10) to amend the schedule of
Wireless Connectivity Fees and Charges (``Wireless Fee Schedule'') to
add wireless connectivity services that transport the market data of
certain affiliates of the Exchange.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
The Commission published the proposed rule change for public
comment in the Federal Register on February 25, 2020.\3\ The Commission
received several comments on the proposed rule change, and a response
from the Exchange.\4\ On April 1, 2020, pursuant to Section 19(b)(2) of
the Act,\5\ the Commission designated a longer period within which to
either approve the proposed rule change, disapprove the proposed rule
change, or institute proceedings to determine whether to disapprove the
proposed rule change.\6\ On May 18, 2020, the Commission instituted
proceedings to determine whether to approve or disapprove the proposed
rule change.\7\ The Commission received additional comments in response
to the Order Instituting Proceedings.\8\
---------------------------------------------------------------------------
\3\ See Securities Exchange Act Release No. 88238 (February 19,
2020), 85 FR 10776 (February 25, 2020) (SR-NYSEAMER-2020-10)
(``Wireless II Notice''). See also Securities Exchange Act Release
Nos. 88237 (February 19, 2020), 85 FR 10752 (February 25, 2020) (SR-
NYSE-2020-11); 88239 (February 19, 2020), 85 FR 10786 (February 25,
2020) (SR-NYSEArca-2020-15); 88240 (February 19, 2020), 85 FR 10795
(February 25, 2020) (SR-NYSECHX-2020-05); and 88241 (February 19,
2020), 85 FR 10738 (February 25, 2020) (SR-NYSENAT-2020-08).
\4\ Comments received on the Wireless II Notice and the
Exchange's response are available on the Commission's website at:
https://www.sec.gov/comments/sr-nyseamer-2020-10/srnyseamer202010.htm.
\5\ 15 U.S.C. 78s(b)(2).
\6\ See Securities Exchange Act Release No. 88540 (April 1,
2020), 85 FR 19562 (April 7, 2020). The Commission designated May
25, 2020, as the date by which it should approve, disapprove, or
institute proceedings to determine whether to disapprove the
proposed rule changes.
\7\ See Securities Exchange Act Release No. 88901 (May 18,
2020), 85 FR 31273 (May 22, 2020) in which the Commission instituted
proceedings (``Order Instituting Proceedings'' or ``OIP'').
\8\ Comments received on the Wireless II Notice following the
OIP also are available on the Commission's website at: https://www.sec.gov/comments/sr-nyseamer-2020-10/srnyseamer202010.htm.
---------------------------------------------------------------------------
On July 27, 2020, the Exchange filed Partial Amendment No. 1 to the
proposed rule change in response to certain comments on the proposed
rule change. Partial Amendment No. 1 is described in Item II below,
which has been substantially prepared by the Exchange.\9\ The
Commission is publishing this notice to solicit comments on Partial
Amendment No. 1 from interested persons.\10\
---------------------------------------------------------------------------
\9\ The Commission has reformatted the Exchange's presentation
of the footnotes.
\10\ Partial Amendment No. 1 is also available on the
Commission's website at: https://www.sec.gov/comments/sr-nyseamer-2020-10/srnyseamer202010.htm. The Commission also refers interested
persons to Securities Exchange Act Release No. 88169 (February 11,
2020), 85 FR 8946 (February 18, 2020) (SR-NYSEAMER-2020-05) (wherein
the Exchange filed a proposed rule change to establish the Wireless
Fee Schedule listing available wireless bandwidth connections
between the Mahwah, New Jersey data center and other data centers
(``Wireless I'') and concurrently proposes to partially amend
Wireless I). Partial Amendment No. 1 to Wireless I is available on
the Commission's website at: https://www.sec.gov/comments/sr-nyseamer-2020-05/srnyseamer202005.htm.
---------------------------------------------------------------------------
II. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Amendment
NYSE American LLC (``NYSE American'' or the ``Exchange'') hereby
submits this Partial Amendment No. 1 to the above-referenced filing
(``Filing'') in connection with the proposed rule change to add
wireless connectivity that transport the market data of certain
affiliates of the Exchange to the schedule of Wireless Connectivity
Fees and Charges (the ``Wireless Fee Schedule''). With this Partial
Amendment No. 1, the Exchange proposes a new rule to place restrictions
on the use of a pole on the grounds of the Mahwah, New Jersey data
center that is used for wireless connectivity services that transport
the market data of certain affiliates of the Exchange.
The Exchange proposes the following amendments to the Filing:
1. The Exchange proposes to amend the first paragraph in Item 1(a)
on page 3 of the Filing:
The wireless connectivity services do not transport market data of
the Exchange. Accordingly, the Exchange proposes to amend the first
paragraph of Item 1(a) on page 3 of the Filing to reflect that fact and
to add text to describe the proposed rule change. Specifically, it
proposes to add ``(a)'' before ``wireless connectivity services'';
delete ``the Exchange and''; add ``of the Exchange'' after ``certain
affiliates''; and add new text at the end of the paragraph to describe
the proposed rule change, as follows (new text italicized, deletions in
[brackets]):
Pursuant to the provisions of Section 19(b)(1) of the Securities
Exchange Act of 1934 (the ``Act'') \1\ and Rule 19b-4 thereunder,\2\
NYSE American LLC (``NYSE American'' or the ``Exchange'') proposes
to add (a) wireless connectivity services that transport the market
data of [the Exchange and] certain affiliates of the Exchange to the
schedule of Wireless Connectivity Fees and Charges (the ``Wireless
Fee Schedule''); and (b) a new rule to place restrictions on the use
of a pole on the grounds of the Mahwah, New Jersey data center that
is used for such wireless connectivity services.
2. The Exchange proposes to amend the carryover paragraph on pages
3 and 4 of the Filing (second full paragraph on page 24 of the Exhibit
1):
The Exchange proposes to add amend the carryover paragraph on pages
3 and 4 of the Filing (second full paragraph on page 24 of the Exhibit
1) to add ``(a)'' before ``wireless connectivity services'' and add new
text to describe the proposed rule change, as follows (new text
italicized, deletion in [brackets]):
The Exchange proposes to add (a) wireless connectivity services
that transport market data of three Exchange affiliates, New York
Stock Exchange LLC (``NYSE''), NYSE Arca, Inc. (``NYSE Arca'') and
NYSE National, Inc. (``NYSE National'') to the Wireless Fee
Schedule[.],3/4 and (b) a new rule to place restrictions
on the use of a pole on the grounds of the Mahwah, New Jersey data
center that is used for such wireless connectivity services. A
market participant is not able to use the wireless connectivity
services to connect to Exchange market data.
3. The Exchange proposes to add a new section titled ``Proposed New
Rule'' and accompanying footnotes after the first full paragraph on
page 14 of the Filing (carryover paragraph on pages 39 and 40 of the
Exhibit 1):
The Exchange proposes a new rule to place restrictions on the use
of a pole on the grounds of the Mahwah, New Jersey data center that is
used for wireless connectivity services. Accordingly, the Exchange
proposes to add a new section titled ``Proposed New Rule'' and
accompanying footnotes (subsequent footnotes would be renumbered in a
conforming change) after the first full paragraph on page 14 of the
Filing (carryover paragraph on pages 39 and 40 of the Exhibit 1), after
the end of the section titled ``The Proposed Service and Fees,'' as
follows (all text is new):
[[Page 48054]]
Proposed New Rule
Since 2016, IDS has had the use of a pole on the grounds of the
Mahwah data center.27/28 The data center pole is part of
the network utilized for the Wireless Market Data Connections to the
Carteret and Secaucus Third Party Data Centers.28/29 At
the data center pole, the wireless connection to the Third Party
Data Centers converts to a fiber connection, and the fiber
connection travels from the data center pole into the Mahwah data
center.29/30 The equipment on the data center pole
belongs to IDS and Anova Technologies, LLC (``Anova''), the non-ICE
entity that owns the wireless network used for the Wireless Market
Data Connections to Secaucus and Carteret.30/31
Other third parties that offer wireless services utilize
commercial poles located outside the grounds of the Mahwah, New
Jersey data center for their wireless networks. A third party's
wireless connections to the Third Party Data Center convert to fiber
connections at the commercial pole, and the fiber connects the
commercial pole to the Mahwah data center.
Several such third parties have objected to the use of the data
center pole for the Wireless Market Data Connections. They argue
that IDS has an advantage over its competitors because third parties
are not allowed access to the data center pole,31/32 and
the data center pole is closer to the Mahwah data center than any
commercial pole.32/33 At least one third party has raised
the additional concern that the Wireless Market Data Connections may
benefit from ``less obvious and more discreet types of latency
advantages'' due to infrastructure inside the Mahwah data center,
noting that ``some connections may have a longer fiber route than
others within a data center or may have to go through various
equipment or meet me rooms that an affiliate or preferred provider
of an exchange do not.'' 33/34
The Exchange is proposing a new Rule 3.14E (Data Center Pole
Latency Restrictions--Connectivity to Production of Exchange Market
Data) that would require that the length of the connection from the
data center pole to the point inside the Mahwah data center where
Exchange market data is produced be no less than the length of the
connection from the closest commercial pole to the same point. By
requiring that the compared connections both extend to where
Exchange market data is produced, the proposed rule would take
distances within the Mahwah data center into account.
The proposed rule would include the following definitions:
``Commercial Pole'' would mean a pole (a) on which one
or more third parties locate wireless equipment used to offer
wireless connectivity to other third parties, and (b) from which a
fiber connection extends from third party equipment on the pole to
the Data Center.
``Data Center'' would mean the Mahwah, New Jersey data
center where the Exchange's matching engine is located, or its
successor.
``Data Center Pole'' would mean a pole that (a) holds
wireless equipment, (b) is located within the grounds of the Data
Center, and (c) cannot be used by third parties other than third
parties with which the Exchange or an ICE Affiliate has an agreement
to provide services in the name of the Exchange or an ICE Affiliate.
``ICE Affiliate'' would mean Intercontinental Exchange,
Inc. (``ICE'') and any entity that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under
common control with ICE, where ``control'' means that one entity
possesses, directly or indirectly, voting control of the other
entity either through ownership of capital stock or other equity
securities or through majority representation on the board of
directors or other management body of such entity.
The proposed rule would require that:
the length of the connection between (a) the base of the Data Center
Pole and (b) the point inside the Data Center where Exchange market
data is produced shall be no less than
the length of the connection between (x) the base of the closest
Commercial Pole and (y) the point inside the Data Center where
Exchange market data is produced.
27/28 See Securities Exchange Act Release No. 76750
(December 23, 3015), 80 FR 81648 (December 30, 2015) (SR-NYSEMKT-
2015-85) (Order Approving Proposed Rule Change to the Co-location
Services Offered by the Exchange (the Offering of a Wireless
Connection to Allow Users to Receive Market Data Feeds from Third
Party Markets) and to Reflect Changes to the NYSE MKT Equities Price
List and the NYSE Amex Options Fee Schedule Related to These
Services).
28/29 The Wireless Market Data Connections with Markham,
Canada do not use equipment on the data center pole.
29/30 The wireless network similarly converts to a fiber
connection for its connection into the Third Party Data Centers.
30/31 Equipment for services Anova offers under its own
name is not allowed on the data center pole.
31/32 IDS does not sell rights to third parties to
operate wireless equipment on the data center pole due to space
limitations, security concerns, and the interference that would
arise between equipment placed too closely together.
32/33 See letter from Gregory Babyak, Global Head of
Regulatory Affairs, Bloomberg L.P., to Ms. Vanessa Countryman,
Secretary, Securities and Exchange Commission (``Commission''),
dated June 12, 2020; letter from Stephen John Berger, Managing
Director, Global Head of Government and Regulatory Policy, Citadel
Securities, to Ms. Vanessa Countryman, Secretary, Commission, dated
June 12, 2020; letter from Jim Considine, Chief Financial Officer,
McKay Brothers LLC (``McKay Brothers''), to Ms. Vanessa Countryman,
Secretary, Commission, dated June 12, 2020 (``McKay Letter''); and
letter from Thomas M. Merritt, Deputy General Counsel, Virtu
Financial, Inc. to Ms. Vanessa Countryman, Secretary, Commission,
dated March 10, 2020.
33/34 McKay Letter, supra note 32/33, at 9.
4. The Exchange proposes to add new text after the carryover
paragraph on pages 15 and 16 of the Filing (carryover paragraph on
pages 41 and 42 of the Exhibit 1):
The Exchange proposes to amend the Filing to include additional
analysis on the competitive environment for wireless connections.
Accordingly, the Exchange proposes to add a paragraph and accompanying
footnotes (subsequent footnotes would be renumbered in a conforming
change) after the carryover paragraph on pages 15 and 16 of the Filing
(carryover paragraph on pages 41 and 42 of the Exhibit 1), as follows
(all text is new):
Such competitors can offer wireless connectivity to Selected
Market Data or other Exchange market data in the Third Party Data
Centers by obtaining the market data at the Mahwah data center and
sending it over their wireless network to the Third Party Data
Centers.37/38 The Exchange believes that its competitors'
wireless connections provide connectivity at the same or similar
speed as the Wireless Market Data Connections, and at the same or
similar cost. Indeed, the McKay Letter acknowledges that McKay
Brothers has the fastest wireless network.38/39
37/38 A market participant in any of the Third Party Data
Centers or the Mahwah data center also may create a proprietary
wireless market data connection, connect through another market
participant, or utilize fiber connections offered by the Exchange,
ICE Affiliates, and other service providers and third party
telecommunications providers.
38/39 McKay Letter, supra note 32/33, at 4.
5. The Exchange proposes to amend the Statutory Basis section of
the Filing after the second full paragraph on page 18 of the Filing
(third full paragraph on page 45 of the Exhibit 1):
The Exchange proposes to include information in the Filing
regarding why it believes the proposed new rule is reasonable. The
Exchange proposes to amend the Statutory Basis section of the Filing to
add new paragraphs and accompanying footnotes (subsequent footnotes
would be renumbered in a conforming change) after the second full
paragraph on page 18 of the Filing (third full paragraph on page 45 of
the Exhibit 1), at the end of the section titled ``The Proposed Change
is Reasonable,'' as follows (all text is new):
The Exchange believes that the proposed new Rule 3.14E would be
reasonable as, pursuant to the rule, the networks for the Wireless
Market Data Connections, and future wireless connections that use a
Data Center Pole, would ``operat[e] in the same manner as
competitors do today without a latency subsidy or other advantage
provided by the Exchanges. . . .'' 43/44 Accordingly, the
proposed new rule would promote just and equitable principles of
trade and, in general, protect investors and the public
[[Page 48055]]
interest by ensuring that the subscribers to services using the IDS
wireless network do not benefit from any physical proximity ``on the
segment [of the network] closest to the Exchanges' data center that
no competitor can replicate.'' 44/45 By ending both of
the compared connections at the point inside the Data Center where
Exchange market data is produced, the proposed rule would take
distances within the Mahwah data center into account.
45/46 The proposed new rule would not apply differently
to distinct types or sizes of market participants. The Exchange
would be required to ensure that the length of the connection
between (a) the base of the Data Center Pole and (b) the point
inside the Data Center where Exchange market data is produced, would
be no less than the length of the connection between (x) the base of
the closest Commercial Pole and (y) the point inside the Data Center
where Exchange market data is produced.
The Exchange believes that the proposed definition of
``Commercial Pole'' is reasonable and would promote just and
equitable principles of trade because it would encompass any pole on
which a third party locates its wireless equipment in order to offer
wireless connectivity to customers. The Exchange believes that such
third parties are the direct competitors for the Wireless Market
Data Connections, as they also offer wireless connections to
customers. If a third party used a pole for a proprietary wireless
network and that pole does not have one or more third parties'
wireless equipment used to offer wireless connectivity to other
third parties, that pole would not fall within the scope of the
definition of Commercial Pole.
The Exchange believes that the proposed definition of ``Data
Center'' is reasonable and would promote just and equitable
principles of trade because it would capture any data center to
which the Exchange locates its matching engine.
The Exchange believes that the proposed definition of ``Data
Center Pole'' is reasonable and would promote just and equitable
principles of trade because it would encompass not just the current
pole, but also any additional or successor pole on the grounds of
the Data Center, so long as such pole could not be used by third
parties other than third parties with which the Exchange or an ICE
Affiliate had an agreement to provide services in the name of the
Exchange or an ICE Affiliate, such as Anova.
The Exchange believes that the definition of ``ICE Affiliate''
is reasonable and would promote just and equitable principles of
trade because the same definition is used in Rule 497-Equities
(Affiliation between Exchange and a Member
Organization),46/47 and so using it would add
transparency, clarity and internal consistency to Exchange rules.
43/44 McKay Letter, supra note 32/33, at 7.
44/45 Id, at note 33.
45/46 Each of the Affiliate SROs is filing for a rule
change that is substantially similar to the proposed Exchange rule.
Assuming such filings are approved by the Commission, to the extent
that the market data of an Affiliate SRO is produced separately from
where the Exchange market data is produced, the wireless connection
to that Affiliate SRO's market data would be captured by that
Affiliate SRO's rule.
46/47 The definition of ICE has been added to the text.
6. The Exchange proposes to amend the Statutory Basis section of
the Filing after the fifth full paragraph on page 19 of the Filing
(carryover paragraph on pages 47 and 48 of the Exhibit 1):
The Exchange proposes to include information in the Filing
regarding why it believes the proposed new rule is not unfairly
discriminatory. The Exchange proposes to amend the Statutory Basis
section of the Filing to add new paragraphs and accompanying footnotes
(subsequent footnotes would be renumbered in a conforming change) after
the fifth full paragraph on page 19 of the Filing (carryover paragraph
on pages 47 and 48 of the Exhibit 1), immediately prior to the last
paragraph of the section titled ``The Proposed Change is Not Unfairly
Discriminatory,'' as follows (all text is new):
The Exchange believes that the proposed new Rule 3.14E would not
be unfairly discriminatory, as pursuant to the rule, the networks
for the Wireless Market Data Connections, and future wireless
connections that use the Data Center Pole, would ``operat[e] in the
same manner as competitors do today without a latency subsidy or
other advantage provided by the Exchanges. . . .'' 47/48
Accordingly, the proposed new rule would ensure that the IDS
wireless network does not benefit from physical proximity ``on the
segment [of the network] closest to the Exchanges' data center that
no competitor can replicate.'' 48/49 By ending both of
the compared connections at the point inside the Data Center where
Exchange market data is produced, the proposed rule would take
distances within the Mahwah data center into account.
The proposed new rule would not apply differently to distinct
types or sizes of market participants. The Exchange would be
required to ensure that the length of the connection between (a) the
base of the Data Center Pole and (b) the point inside the Data
Center where Exchange market data is produced, would be no less than
the length of the connection between (x) the base of the closest
Commercial Pole and (y) the point inside the Data Center where
Exchange market data is produced.
The Exchange believes that the proposed definition of
``Commercial Pole'' would not be unfairly discriminatory because it
would encompass any pole on which a third party locates its wireless
equipment in order to offer wireless connectivity to customers. The
Exchange believes that such third parties are the direct competitors
for the Wireless Market Data Connections, as they also offer
wireless connections to customers. If a third party used a pole for
a proprietary wireless network and that pole does not have one or
more third parties' wireless equipment used to offer wireless
connectivity to other third parties, that pole would not fall within
the scope of the definition of Commercial Pole.
The Exchange believes that the proposed definition of ``Data
Center'' would not be unfairly discriminatory because it would
capture any data center to which the Exchange locates its matching
engine.
The Exchange believes that the proposed definition of ``Data
Center Pole'' would not be unfairly discriminatory because it would
encompass not just the current pole, but also any additional or
successor pole on the grounds of the Data Center, so long as such
pole could not be used by third parties other than third parties
with which the Exchange or an ICE Affiliate had an agreement to
provide services in the name of the Exchange or an ICE Affiliate,
such as Anova.
The Exchange believes that the definition of ``ICE Affiliate''
would not be unfairly discriminatory because the same definition is
used in Rule 497-Equities 49/50 and so using it would add
transparency, clarity and internal consistency to Exchange rules.
47/48 McKay Letter, supra note 32/33, at 7.
48/49 Id., at note 33.
49/50 The definition of ICE has been added to the text.
7. The Exchange proposes to amend the section of the Filing titled
``Self-Regulatory Organization's Statement on Burden on Competition''
in the following two ways:
The Exchange proposes to include information in the Filing
regarding why it believes the proposed new rule would impose any burden
on competition that is not necessary or appropriate in furtherance of
the purposes of Section 6(b)(8) of the Securities Exchange Act of 1934
(the ``Act'').\11\ Accordingly, the Exchange proposes to amend the
section of the Filing titled ``Self-Regulatory Organization's Statement
on Burden on Competition'' in the following two ways.
---------------------------------------------------------------------------
\11\ 15 U.S.C. 78f(b)(8).
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First, to set the new text apart from the previous discussion
regarding the burden on competition, the Exchange proposes to add the
heading ``Wireless Market Data Connectivity'' immediately before the
first full paragraph under the heading on page 20 of the Filing (page
48 of the Exhibit 1). The new heading would apply to the current text
of the Filing.
Second, after the third full paragraph on page 22 of the Filing
(first full paragraph on page 51 of the Exhibit 1), the Exchange
proposes to add the heading ``Proposed New Rule'' and new paragraphs
and accompanying footnotes (subsequent footnotes would be renumbered in
a conforming change), as follows (all text is new):
Proposed New Rule
The Exchange does not believe that the proposed new rule would
impose any burden on competition that is not necessary or
appropriate in furtherance of the purposes of Section 6(b)(8) of the
Act.52/53
[[Page 48056]]
With the exception of Anova, third parties do not have access to
the data center pole. Under the proposed rule, the Exchange would
always be obligated to ensure that the length of the connection
between (a) the base of the Data Center Pole and (b) the point
inside the Data Center where Exchange market data is produced, would
be no less than the length of the connection between (x) the base of
the closest Commercial Pole and (y) the point inside the Data Center
where Exchange market data is produced.
IDS, not the Exchange, provides the Wireless Market Data
Connections to market participants, and so it would be IDS that
would have to slow its connection down as required by the rule.
Accordingly, the Exchange believes that the only burden on
competition of the proposed change would be on IDS.
Nonetheless, the Exchange believes that the proposed rule change
would not impose any burden on competition that is not necessary or
appropriate because the proposed change would ensure that the IDS
wireless network did not benefit from physical proximity ``on the
segment [of the network] closest to the Exchanges' data center that
no competitor can replicate.'' 53/54 The networks for the
Wireless Market Data Connections, and future wireless connections
that use the Data Center Pole, would ``operat[e] in the same manner
as competitors do today without a latency subsidy or other advantage
provided by the Exchanges. . . .'' 54/55
The proposed rule would not otherwise put a burden on
competition. As noted above, access to the data center pole is not
required for third parties to establish wireless networks that can
compete with the Wireless Market Data Connections to the Carteret
and Secaucus Third Party Data Centers, as evidenced by the existing
wireless connections offered by third party
competitors.55/56 Such competitors can offer wireless
connectivity to Selected Market Data or other Exchange market data
in the Third Party Data Centers by obtaining the market data at the
Mahwah data center and sending it over their wireless network to the
Third Party Data Centers.56/57 Indeed, the Exchange
believes that its competitors' wireless connections provide
connectivity at the same or similar speed as the Wireless Market
Data Connections, and at the same or similar cost. The McKay Letter
acknowledges that McKay Brothers has the fastest wireless
network.57/58
The Exchange notes that proximity to a data center is not the
only determinant of a wireless network's latency. Rather, the
latency of a wireless network depends on several factors. Variables
include the wireless equipment utilized; the route of, and number of
towers or buildings in, the network; and the fiber equipment used at
either end of the connection. Moreover, latency is not the only
consideration that a customer may have in selecting a wireless
network to connect to for market data. Other considerations may
include the amount of network uptime; the equipment that the network
uses; the cost of the connection; and the applicable contractual
provisions.
The proposed change does not affect competition among national
securities exchanges or among members of the Exchange, but rather
between IDS and its commercial competitors.
52/53 15 U.S.C. 78f(b)(8).
53/54 McKay Letter, supra note 32/33, at note 33.
54/55 Id., at 7.
55/56 Based on the information available to it, the
Exchange believes that a market participant in the Carteret or
Secaucus Third Party Data Center may purchase a wireless connection
to the NYSE and NYSE Arca Integrated Feed data feeds from at least
two other providers of wireless connectivity.
56/57 A market participant in any of the Third Party Data
Centers or the Mahwah data center also may create a proprietary
wireless market data connection, connect through another market
participant, or utilize fiber connections offered by the Exchange,
ICE Affiliates, and other service providers and third party
telecommunications providers.
57/58 Id., at 4.
8. The Exchange proposes to add a list under ``Exhibit 5--Text of
the Proposed Rule Change'' on page 22 of the Filing:
The Exchange proposes to add a new Exhibit 5B. Accordingly, the
Exchange proposes to add a list under ``Exhibit 5--Text of Proposed
Rule Change'' on page 22 of the Filing, as follows (new text
italicized):
Exhibit 5--Text of the Proposed Rule Change
A. Text of the Proposed Schedule of Wireless Connectivity Fees and
Charges
B. Text of the Proposed Rule
9. The Exchange proposes to add new text to the first full
paragraph of Section I on page 23 of the Exhibit 1:
The Exchange proposes to add new text to the first full paragraph
of Section I on page 23 of the Exhibit 1, as follows (new text
italicized):
The Exchange proposes to add wireless connectivity services that
transport the market data certain affiliates of the Exchange to the
schedule of Wireless Connectivity Fees and Charge (the ``Wireless
Fee Schedule'') and add a new rule to place restrictions on the use
of a pole on the grounds of the Mahwah, New Jersey data center that
is used for such wireless connectivity services. The proposed rule
change is available on the Exchange's website at www.nyse.com, at
the principal office of the Exchange, and at the Commission's Public
Reference Room.
10. The Exchange proposes to amend ``Exhibit 5'' to ``Exhibit 5A''
on page 54 of the Exhibit 5:
To reflect the addition of a new Exhibit 5B, the Exchange proposes
to add ``A'' to ``EXHIBIT 5'' on page 54 of the Exhibit 5, to make it
``EXHIBIT 5A''.
* * * * *
All other representations in the Filing remain as stated therein
and no other changes are being made.
III. Date of Effectiveness of the Proposed Rule Change As Modified By
Partial Amendment No. 1 and Timing for Commission Action
Within 180 days after the date of publication of the initial Notice
of Filing in the Federal Register or within such longer period up to an
additional 60 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 issue an order approving or disapproving such
proposed rule change, as amended.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change, as amended by Partial Amendment No. 1, 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-NYSEAMER-2020-10 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-NYSEAMER-2020-10. 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
[[Page 48057]]
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-
NYSEAMER-2020-10, and should be submitted on or before August 28, 2020.
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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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-17249 Filed 8-6-20; 8:45 am]
BILLING CODE 8011-01-P
