Self-Regulatory Organizations; NYSE Chicago, Inc.; Notice of Filing of Proposed Rule Change To Amend the Schedule of Wireless, Circuits, and Non-Colocation Connectivity Services Available at the Mahwah Data Center, 21410-21418 [2021-08316]
Download as PDF
<![CDATA[
21410
Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Notices
competitive environment because they
modify the Exchange’s fees in a manner
that encourages market participants to
continue to provide liquidity and to
send order flow to the Exchange.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
Written comments were neither
solicited nor 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,29 and Rule
19b–4(f)(2) 30 thereunder. At any time
within 60 days of the filing of the
proposed rule change, the Commission
summarily may temporarily suspend
such rule change if it appears to the
Commission that such action is
necessary or appropriate in the public
interest, for the protection of investors,
or otherwise in furtherance of the
purposes of the Act. 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 rule-comments@
sec.gov. Please include File Number SR–
PEARL–2021–16 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–PEARL–2021–16. 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–PEARL–2021–16, and
should be submitted on or before May
13, 2021.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.31
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. 2021–08310 Filed 4–21–21; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–91601; File No. SR–
NYSECHX–2021–07)
Self-Regulatory Organizations; NYSE
Chicago, Inc.; Notice of Filing of
Proposed Rule Change To Amend the
Schedule of Wireless, Circuits, and
Non-Colocation Connectivity Services
Available at the Mahwah Data Center
April 16, 2021.
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934
(‘‘Act’’),2 and Rule 19b–4 thereunder,3
notice is hereby given that on April 9,
2021, the NYSE Chicago, Inc. (‘‘NYSE
Chicago’’ or ‘‘Exchange’’) filed with the
Securities and Exchange Commission
(‘‘Commission’’) the proposed rule
change as described in Items I and II
below, which Items have been prepared
by the Exchange. The Commission is
31 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 15 U.S.C. 78a.
3 17 CFR 240.19b–4.
1 15
29 15
30 17
U.S.C. 78s(b)(3)(A)(ii).
CFR 240.19b–4(f)(2).
VerDate Sep<11>2014
19:20 Apr 21, 2021
Jkt 253001
PO 00000
Frm 00143
Fmt 4703
Sfmt 4703
publishing this notice to solicit
comments on the proposed rule change
from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to amend the
schedule of wireless, circuits, and noncolocation connectivity services
available at the Mahwah data center (the
‘‘Fee Schedule’’) to add services
available to customers in the meet me
rooms in the Mahwah data center and
procedures for the allocation of cabinets
and power to such customers. The
proposed 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.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
self-regulatory organization included
statements concerning the purpose of,
and basis for, the proposed rule change
and discussed any comments it received
on the proposed rule change. The text
of those statements may be examined at
the places specified in Item IV below.
The Exchange has prepared summaries,
set forth in sections A, B, and C below,
of the most significant parts of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to amend the
Fee Schedule to add services available
to customers in the two meet me rooms
on the north and south sides of the
Mahwah data center (‘‘MMRs’’) and
procedures for the allocation of cabinets
and power to MMR customers.
The Exchange makes the current
proposal solely as a result of its
determination that the Commission’s
recent interpretations of the Act’s
definitions of the terms ‘‘exchange’’ and
‘‘facility,’’ as expressed in the Wireless
Approval Order,4 apply to the
connectivity services described herein
that are offered by entities other than
the Exchange. The Exchange disagrees
4 See Securities Exchange Act Release No. 90209
(October 15, 2020), 85 FR 67044 (October 21, 2020)
(SR–NYSE–2020–05, SR–NYSEAMER–2020–05,
SR–NYSEArca–2020–08, SR–NYSECHX–2020–02,
SR–NYSENAT–2020–03, SR–NYSE–2020–11, SR–
NYSEAMER–2020–10, SR–NYSEArca–2020–15,
SR–NYSECHX–2020–05, SR–NYSENAT–2020–08)
(‘‘Wireless Approval Order’’).
E:\FR\FM\22APN1.SGM
22APN1
Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Notices
with the Commission’s interpretations,
denies the services covered herein (and
in the Wireless Approval Order) are
offerings of an ‘‘exchange’’ or a
‘‘facility’’ thereof, and has sought review
of the Commission’s interpretations, as
expressed in the Wireless Approval
Order, in the Court of Appeals for the
District of Columbia Circuit.5 Pending
resolution of such appeal, however, the
Exchange is making this proposed rule
change in recognition that the
Commission’s current interpretation
brings certain offerings of the
Exchange’s affiliates into the scope of
the terms ‘‘exchange’’ or ‘‘facility.’’
Background
Through its ICE Data Services (‘‘IDS’’)
business, Intercontinental Exchange,
Inc. (‘‘ICE’’) 6 operates a data center in
Mahwah, New Jersey (the ‘‘Mahwah
Data Center’’), from which the Exchange
provides co-location services to any
market participant that requests to
receive co-location services directly
from the Exchange (‘‘Users’’).7 Services
are also available to customers that are
not colocation Users (‘‘NCL Customers’’
and, together with Users, ‘‘Mahwah
Customers’’).
Mahwah Customers require circuits
connecting into and out of the Mahwah
Data Center in order to connect their
equipment outside of the Mahwah Data
Center to their equipment or port within
the Mahwah Data Center. IDS and
numerous third-party
telecommunications service providers
offer these connections to the Mahwah
Customers in the form of wired circuits 8
into and out of the Mahwah Data Center.
A third-party telecommunications
service provider that provides wired
circuits into and out of the Mahwah
Data Center (a ‘‘Telecom’’) 9 completes a
5 Intercontinental
Exchange, Inc. v. SEC, No. 20–
1470 (DC Cir. 2020).
6 The Exchange is an indirect subsidiary of ICE
and is an affiliate of New York Stock Exchange LLC,
NYSE American LLC, NYSE Arca, Inc., and NYSE
National, Inc. (together, the ‘‘Affiliate SROs’’). Each
Affiliate SRO has submitted substantially the same
proposed rule change to propose the changes
described herein. See SR–NYSE–2021–25, SR–
NYSEAMER–2021–21, SR–NYSEArca–2021–24,
and SR–NYSENAT–2021–09.
7 The Exchange initially filed rule changes
relating to its co-location services with the
Securities and Exchange Commission
(‘‘Commission’’) in 2019. See Securities Exchange
Act Release No. 87408 (October 28, 2019), 84 FR
58778 (November 1, 2019) (SR–NYSECHX–2019–
27) (‘‘NYSE Chicago Co-location Notice’’).
8 A Mahwah Customer may use a third party
wireless connection, including a proprietary
wireless connection, to the Mahwah Data Center. In
such a case, the portion of the connection closest
to the Mahwah Data Center is wired.
9 Telecoms are licensed by the Federal
Communications Commission (‘‘FCC’’) and are not
required to be, or be affiliated with, a member of
the Exchange or of an Affiliate SRO.
VerDate Sep<11>2014
19:20 Apr 21, 2021
Jkt 253001
circuit by placing equipment in a MMR
and installing carrier circuits between
its MMR equipment and one or more
points outside the Mahwah Data
Center.10 Mahwah Customers that have
contracted with the Telecom to use the
circuit connect to the Telecom’s MMR
equipment using a cross connect. Once
connected to the Telecom’s equipment,
the Mahwah Customers can use the
Telecom’s circuit to transport data into
and out of the Mahwah Data Center.
In addition, a Telecom may sell access
to its circuits to a second Telecom,
which allows the second Telecom to use
the first Telecom’s circuit to access the
Mahwah Data Center. In this way, the
second Telecom gains access to the
Mahwah Data Center, where it installs
its equipment in an MMR, without
incurring the cost of installing its own
proprietary circuits to the Mahwah Data
Center. IDS does not consent to, and
need not be informed of, a Telecom’s
sale of a circuit to another Telecom.
By making it possible for Telecoms to
offer their customers circuits into and
out of the Mahwah Data Center, the
MMR services that are the subject of the
present filing allow Telecoms to
compete with IDS. If the MMR services
were not available, IDS circuits would
be the only option for all Mahwah
Customers and third-party
telecommunications service providers.
MMR Services
The Exchange proposes to add change
the title of the Fee Schedule to
‘‘Wireless and Meet-Me-Room
Connectivity Fees and Charges’’ and add
the following MMR services and fees to
the end of the Fee Schedule, under the
heading ‘‘C. Meet-Me-Room (‘MMR’)
Services.’’ 11
Cabinet-Related Services
The Exchange proposes to add the
following services and fees relating to
the cabinets that IDS provides to
Telecoms for them to set up their
servers in the MMRs (collectively, the
‘‘Cabinet-Related Services’’). The
Cabinet-Related Services are
substantially similar to co-location
services and related fees that the
Exchange and the Affiliate SROs offer to
Users, which are set forth in their price
10 Neither IDS nor the Exchange knows the
termination point of a Telecom’s circuit or the
content of any data sent on a circuit. A Telecom
elects which MMR it will use, or if it will use both.
11 The Exchange recently filed proposed rule
changes regarding the IDS circuits and services
offered to NCL Customers. See Securities Exchange
Act Release No. 91219 (February 26, 2021), 86 FR
12724 (March 4, 2021) (SR–NYSECHX–2021–03). If
such filing is approved by the Commission, the
Exchange expects to file an amendment to the
present filing to conform to the relevant changes.
PO 00000
Frm 00144
Fmt 4703
Sfmt 4703
21411
lists and fee schedules (the ‘‘Affiliate
SRO Price Lists’’).12
Initial Fee per MMR Cabinet and
MMR Monthly Fee for Cabinets: IDS
offers Telecoms dedicated cabinets in
the MMRs to house their equipment.
The cabinets come in sizes based on the
number of kilowatts (‘‘kW’’) allocated,
subject to a maximum of 8 kW per
cabinet. Telecoms pay an initial fee for
each cabinet and a monthly fee based on
the number of kW allocated to all the
Telecom’s cabinets.13 To indicate how
the fee is calculated, the Exchange
proposes to add a note stating that the
monthly fee is based on total kWs
allocated to all of a Telecom’s cabinets.
The Exchange proposes to add the
following fees and language to the Fee
Schedule for the Cabinet-Related
Services:
Initial Fee per MMR Cabinet:
Dedicated Cabinet of up to 8 kW ....
MMR Monthly Fee for Cabinets:
Monthly fee is based on total kWs
allocated to all of a Telecom’s
cabinets.
Number of kWs
4–8 ......................................................
9–20 ....................................................
21–40 ..................................................
41+ ......................................................
$5,000
Monthly fee
per kW
$1,200
1,050
950
900
Access and Service Fees
The Exchange proposes to add the
following services and fees relating to
the access and services IDS provides to
Telecoms (collectively, the ‘‘Access and
Service Fees’’) to the Fee Schedule.
Most of the Access and Service Fees are
substantially similar to services and
related fees that the Exchange and the
Affiliate SROs offer to Users, which are
12 See ‘‘Co-Location Fees’’ in ‘‘New York Stock
Exchange Price List 2021’’ at https://
www.nyse.com/publicdocs/nyse/markets/nyse/
NYSE_Price_List.pdf; ‘‘NYSE American Equities
Price List’’ at https://www.nyse.com/publicdocs/
nyse/markets/nyse-american/NYSE_America_
Equities_Price_List.pdf; ‘‘NYSE American Options
Fee Schedule’’ at https://www.nyse.com/
publicdocs/nyse/markets/american-options/NYSE_
American_Options_Fee_Schedule.pdf; ‘‘NYSE Arca
Equities Fees and Charges’’ at https://
www.nyse.com/publicdocs/nyse/markets/nyse-arca/
NYSE_Arca_Marketplace_Fees.pdf; ‘‘NYSE Arca
Options Fees and Charges’’ at https://
www.nyse.com/publicdocs/nyse/markets/arcaoptions/NYSE_Arca_Options_Fee_Schedule.pdf;
‘‘Fee Schedule of NYSE Chicago, Inc.’’ at https://
www.nyse.com/publicdocs/nyse/NYSE_Chicago_
Fee_Schedule.pdf; and ‘‘NYSE National, Inc.
Schedule of Fees and Rebates’’ at https://
www.nyse.com/publicdocs/nyse/regulation/nyse/
NYSE_National_Schedule_of_Fees.pdf.
13 For example, a Telecom that had two cabinets
with a total power allocation of 12 kW would have
a monthly charge of $1,200 per kW for the first eight
kW and $1,050 per kW for the next four kW
(between 9 kW and 12 kw), for a total of $13,800,
irrespective of how it divided the 12 kW between
its cabinets.
E:\FR\FM\22APN1.SGM
22APN1
21412
Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Notices
set forth in the Affiliate SRO Price
Lists.14
Data Center Fiber Cross Connect: IDS
offers fiber cross connects for an initial
and monthly charge. Cross connects
may run between a Telecom’s cabinets,
between its cabinet and the cabinet of
another Telecom, or between its cabinet
and its customer’s cabinet or port.15
Cross connects may be bundled (i.e.,
multiple cross connects within a single
sheath) such that a single sheath can
hold either one cross connect or six
cross connects.
Conduit Sleeve Fee: A Telecom’s
circuits into and out of the Mahwah
Data Center run through IDS conduits.
There are currently three IDS conduit
paths leading into the Mahwah Data
Center. A Telecom determines which
conduit or conduits it will use to carry
its circuits, which are carried in
individual conduit sleeves. The
Telecom is charged an initial charge for
the installation of circuits in the IDS
conduit, which covers up to five hours
of work, and a monthly fee per conduit
sleeve for using the IDS conduit.16
Carrier Connection Fee: Telecoms
contract with their customers for
circuits into and out of the Mahwah
Data Center. A Telecom is charged a
monthly fee for providing such circuits
to Mahwah Customers, on a per
connection basis.
Connection to Time Protocol Feed:
IDS offers Telecoms the option to
purchase connectivity to the Precision
Type of service
Data Center Fiber Cross
Connect.
Conduit Sleeve Fee .............
Carrier Connection Fee .......
Connection to Time Protocol
Feed.
Expedite Fee ........................
Time Protocol, with monthly and initial
charges. Telecoms may make use of time
feeds to receive time and to synchronize
clocks between computer systems or
throughout a computer network, and
time feeds may assist Telecoms in other
functions, including record keeping or
measuring response times.
Expedite Fee: IDS offers Telecoms the
option to expedite the completion of
MMR services purchased or ordered by
the Telecoms, for which the Exchange
charges an ‘‘Expedite Fee.’’
The Exchange proposes to add the
following fees and language to the Fee
Schedule:
Description
Amount of charge
Furnish and install 1 cross connect ................................
$500 initial charge plus $600 monthly charge.
Furnish and install bundle of 6 cross connects ..............
Install (5 hrs) and maintain conduit sleeve supporting
Telecom circuit into data center.
Maintain Telecom’s connections to its non-Telecom
data center customers.
Precision Time Protocol ..................................................
$500 initial charge plus $1,800 monthly charge.
$1,000 initial charge plus $2,000 monthly charge per
conduit sleeve.
$1,150 monthly charge per connection.
Expedited installation/completion of MMR service .........
$4,000 per request.
Service-Related Fees
The Exchange proposes to add the
following services and fees relating to
services IDS provides to Telecoms
(collectively, the ‘‘Service-Related
Fees’’) to the Fee Schedule. The ServiceRelated Fees are substantially similar to
services and related fees that the
Exchange and the Affiliate SROs offer to
Users, which are set forth in the
Affiliate SRO Price Lists.17
Change Fee: IDS charges a Telecom a
‘‘Change Fee’’ if the Telecom requests a
change to one or more existing MMR
services that IDS has already established
$1,000 initial charge plus $250 monthly charge.
or completed for the Telecom. The
Change Fee is charged per order. If a
Telecom orders two or more services at
one time (for example, through
submitting an order form requesting
multiple services) the Telecom is
charged a one-time Change Fee, which
would cover the multiple services.
Hot Hands Service: IDS offers
Telecoms a ‘‘Hot Hands Service,’’ which
allows Telecoms to use on-site data
center personnel to maintain Telecom
equipment, support network
troubleshooting, rack and stack a server
in a Telecom’s cabinet, power recycling,
and install and document the fitting of
cable in a Telecom’s cabinet(s). The Hot
Hands fee is charged per half hour.
Shipping and Receiving: IDS offers
shipping and receiving services to
Telecoms, with a per shipment fee for
the receipt of one shipment of goods at
the Mahwah Data Center from the
Telecom or supplier.
Visitor Security Escort: Telecom
representatives are required to be
accompanied by a visitor security escort
during visits to the Mahwah Data
Center. A fee per visit is charged.
To reflect the above IDS services and
fees, the Exchange proposes to add the
following to the Fee Schedule:
Type of service
Description
Change Fee ....................................
Change to a service that has already been installed/completed for a
Telecom.
Allows Telecom to use on-site data center personnel to maintain
Telecom equipment, support network troubleshooting, rack and
stack, power recycling, and install and document cable.
Receipt of one shipment of goods at data center on behalf of
Telecom (includes coordination of shipping and receiving).
All Telecom representatives are required to be accompanied by a visitor security escort during visits to the data center.
Hot Hands Service ..........................
Shipping and Receiving ..................
Visitor Security Escort .....................
14 See
note 12, supra.
cross connect to MMR cabinets may be
purchased by the Telecom or the Telecom’s
customer. The same fee applies irrespective of
which entity purchases the cross connect.
15 A
VerDate Sep<11>2014
19:20 Apr 21, 2021
Jkt 253001
Amount of charge
16 The number of conduit sleeves a Telecom uses
is dependent on the equipment and technology it
uses and the size of the circuits it sells to Mahwah
Customers. Most Telecoms that use them have one
conduit sleeve.
PO 00000
Frm 00145
Fmt 4703
Sfmt 4703
17 See
E:\FR\FM\22APN1.SGM
$950 per request.
$100 per half hour.
$100 per shipment.
$75 per visit.
note 12, supra.
22APN1
Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Notices
Allocation of Cabinets and Power
The Exchange proposes to establish
procedures for the allocation of cabinets
and power to Telecoms. The Exchange
believes it would be prudent to have
procedures in place for the allocation of
cabinets and power to Telecoms
(‘‘Proposed Procedures’’), should such
allocation be necessary. The Exchange
proposes to add the Proposed
Procedures to the Fee Schedule under
the heading ‘‘MMR Notes.’’
As noted above, IDS offers dedicated
cabinets in the MMRs to Telecoms to
house their equipment. A Telecom pays
an initial fee for each cabinet and a
monthly fee based on the number of kW
allocated to the Telecom’s cabinets. The
Exchange allocates cabinets on a firstcome/first-serve basis.
A Telecom may request power
upgrades to a dedicated cabinet in
addition to the power allocated to such
cabinet (the ‘‘Standard Cabinet Power’’),
subject to a maximum of 8 kW per
cabinet. A Telecom may request that
such additional power (‘‘Additional
Power’’) be allocated to a cabinet when
it is first set up or later.18 A Telecom
with a dedicated cabinet, for example,
may develop its infrastructure in a
manner that allows it to expand the
hardware within that cabinet by adding
Additional Power. Because it could add
Additional Power to its existing cabinet,
the Telecom would not need an
additional cabinet.
The Proposed Procedures would be
set forth in Notes 1 and 2. Note 1 would
provide that, if the amount of power or
cabinets available fell below specified
thresholds, Telecoms would be subject
to purchasing limits. Note 1 would also
specify when the purchasing limits
would cease to apply and would
provide that if a Telecom requests a
number of cabinets and/or amount of
Additional Power that would cause the
unallocated capacity to be below the
specified power and cabinet thresholds,
the purchasing limits would apply only
to the portion of the Telecoms’s order
below the relevant threshold.19
18 For example, a Telecom with a 4 kW cabinet
may purchase an additional 1 kW of Additional
Power. It would then have a cabinet with 5 kW of
power. It could not, however, purchase more than
4 kW of Additional Power, as that would take the
cabinet to above 8 kW. The smallest Standard
Cabinet Power is 4 kW.
19 For example, if there was 10 kW unallocated
power capacity in the MMR and a Telecom
requested to purchase cabinets and Additional
Power that would, together, total 9 kW, the
purchasing limits in MMR Note 1 would not apply
to the Telecom’s purchase of the first 2 kW, whether
those kW were in the form of cabinets or Additional
Power. Once the power threshold was reached, the
combined limits would be activated, limiting the
Telecom’s purchase of additional cabinets and
VerDate Sep<11>2014
19:20 Apr 21, 2021
Jkt 253001
Note 2 would provide that, if the
amount of power or cabinets available
fell to zero, Telecoms seeking to
purchase power or cabinets would be
put on a waitlist. In both Notes 1 and
2, the Proposed Procedures would also
state how the procedures regarding
cabinets and the procedures regarding
power would relate to each other. In
each case, the Proposed Procedures
would state what the threshold amount
of power and cabinets would be to
discontinue the limits.
Proposed MMR Note 1
The Exchange proposes to add the
following under the heading ‘‘Note 1:
Cabinet and Power Purchasing Limits’’:
If (i) unallocated cabinet inventory is
at or below 3 cabinets (‘‘Cabinet
Threshold’’), or (ii) the unallocated
power capacity in the MMRs is at or
below 8 kW (the ‘‘Power Threshold’’),
the following limits on the purchase of
new cabinets (‘‘Purchasing Limits’’) will
apply:
a. Cabinet Limits. If only the Cabinet
Threshold is reached, the following
measures (the ‘‘Cabinet Limits’’) will
apply:
• The Exchange will limit each
Telecom’s purchase of new cabinets to
a maximum of one dedicated cabinet.
• If a Telecom requests, in writing, a
number of cabinets that, if provided,
would cause the available cabinet
inventory to be below 3 cabinets, the
Cabinet Limits will only apply to the
portion of the Telecom’s order below
the Cabinet Threshold.
• A Telecom will have to wait 30
days from the date of its signed order
form before purchasing a new cabinet
again.
• When unallocated cabinet
inventory for the MMRs is more than 3
cabinets, the Exchange will discontinue
the Cabinet Limits.
b. Combined Limits. If only the Power
Threshold is reached or both the
Cabinet Threshold and the Power
Threshold are reached, the following
measures (the ‘‘Combined Limits’’) will
apply:
• A Telecom may purchase either or
both of the following, so long as the
combined power usage of such
purchases is no more than a maximum
of 4 kW:
a. One new cabinet, subject to a
maximum standard power allocation of
4 kW (‘‘Standard Cabinets’’).
b. Additional power for new or
existing cabinets.
Additional Power. In all, the Telecom would be
permitted to purchase a total of 6 kW out of its
original order of 9 kW. The Telecom could choose
whether the 6 kW was in the form of cabinets,
Additional Power, or both.
PO 00000
Frm 00146
Fmt 4703
Sfmt 4703
21413
• If a Telecom requests, in writing, a
number of Standard Cabinets and/or an
amount of additional power that, if
provided, would cause the unallocated
power capacity to be below the Power
Threshold or Cabinet Threshold, the
Combined Limits would apply only to
the portion of the Telecom’s order
below the relevant threshold.
• A Telecom will have to wait 30
days from the date of its signed order
form before purchasing a new Standard
Cabinet or additional power again.
• When unallocated power capacity
is above the Power Threshold, the
Exchange will discontinue the
Combined Limits. If at that time the
unallocated cabinet inventory is 3 or
fewer cabinets, the Cabinet Limits
would enter into effect.
c. Applicability. If the Cabinet
Threshold is reached before the Power
Threshold, the Cabinet Limits will be in
effect until the Power Threshold is
reached, after which the Combined
Limits will apply.
Proposed MMR Note 2
The Exchange proposes to add the
following under the heading ‘‘Note 2:
Cabinet and Combined Waitlists’’:
a. Cabinet Waitlist. The Exchange will
create a cabinet waitlist (‘‘Cabinet
Waitlist’’) if the available cabinet
inventory is zero, or a Telecom requests,
in writing, a number of cabinets that, if
provided, would cause the available
inventory to be zero. The Exchange will
place Telecoms seeking cabinets on a
Cabinet Waitlist, as follows:
• A Telecom will be placed on the
Cabinet Waitlist based on the date its
signed order is received. A Telecom
may only have one order for a new
cabinet on the Cabinet Waitlist at a time,
and the order is subject to the Cabinet
Limits. If a Telecom changes the size of
its order while it is on the Cabinet
Waitlist, it will maintain its place on the
Cabinet Waitlist, provided that the
Telecom may not increase the size of its
order such that it would exceed the
Cabinet Limits.
• As cabinets become available, the
Exchange will offer a cabinet to the
Telecom at the top of the Cabinet
Waitlist. If the Telecom’s order is
completed, it will be removed from the
Cabinet Waitlist.
• A Telecom will be removed from
the Cabinet Waitlist (a) at the Telecom’s
request or (b) if the Telecom turns down
an offer of a cabinet of the same size it
requested in its order. If the Exchange
offers the Telecom a cabinet of a
different size than the Telecom
requested in its order, the Telecom may
turn down the offer and remain at the
E:\FR\FM\22APN1.SGM
22APN1
21414
Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Notices
top of the Cabinet Waitlist until its order
is completed.
• A Telecom that is removed from the
Cabinet Waitlist but subsequently
submits a new written order for a
cabinet will be added back to the bottom
of the Cabinet Waitlist.
• When unallocated cabinet
inventory is more than 3 cabinets, the
Exchange will cease use of the Cabinet
Waitlist.
b. Combined Waitlist. The Exchange
will create a power and cabinet waitlist
(‘‘Combined Waitlist’’) if the
unallocated power capacity is zero, or if
a Telecom requests, in writing, an
amount of power (whether power
allocated to a Standard Cabinet or
additional power) that, if provided,
would cause the unallocated power
capacity to be below zero. The Exchange
will place Telecoms seeking cabinets or
power on the Combined Waitlist, as
follows:
• If a Cabinet Waitlist exists when the
requirements to create a Combined
Waitlist are met, the Cabinet Waitlist
will automatically convert to the
Combined Waitlist. If a Combined
Waitlist exists when the requirements to
create a Cabinet Waitlist are met, no
new waitlist will be created, and the
Combined Waitlist will continue in
effect.
• A Telecom will be placed on the
Combined Waitlist based on the date its
signed order for a cabinet and/or
additional power is received. A Telecom
may only have one order for a new
cabinet and/or additional power on the
Combined Waitlist at a time, and the
order would be subject to the Combined
Limits. If a Telecom changes the size of
its order while it is on the Combined
Waitlist, it will maintain its place on the
Combined Waitlist, provided that the
Telecom may not increase the size of its
order such that it would exceed the
Combined Limits.
• As additional power and/or
cabinets become available, the Exchange
will offer them to the Telecom at the top
of the Combined Waitlist. If the
Telecom’s order is completed, the order
will be removed from the Combined
Waitlist. If the Telecom’s order is not
completed, it will remain at the top of
the Combined Waitlist.
• A Telecom will be removed from
the Combined Waitlist (a) at the
Telecom’s request; or (b) if the Telecom
turns down an offer that is the same as
its order (e.g. the offer includes a
cabinet of the same size and/or the
amount of additional power that the
Telecom requested in its order). If the
Exchange offers the Telecom an offer
that is different than its order, the
Telecom may turn down the offer and
VerDate Sep<11>2014
19:20 Apr 21, 2021
Jkt 253001
remain at the top of the Combined
Waitlist until its order is completed.
• A Telecom that is removed from the
Combined Waitlist but subsequently
submits a new written order for a
cabinet and/or additional power will be
added back to the bottom of the waitlist.
• If the Combined Waitlist is in effect,
when unallocated power capacity in colocation is at 8 kW or more, the
Exchange will cease use of the
Combined Waitlist. If at that time the
unallocated cabinet inventory is 3 or
fewer cabinets, the Cabinet Waitlist
would enter into effect.
Application and Impact of the Proposed
Changes
The existing Telecoms are currently
subject to the described services and
fees. Accordingly, the Exchange expects
that if it is approved, the impact of the
proposed change would be minimal.
The proposed change applies to all
market participants and does not apply
differently to distinct types or sizes of
licensed telecommunications service
providers. Rather, it applies to all
equally.
Use of the services proposed in this
filing is completely voluntary and
available to all market participants on a
non-discriminatory basis.
Competitive Environment
By making it possible for Telecoms to
offer their customers circuits into and
out of the Mahwah Data Center, the
MMR services that are the subject of the
present filing allow Telecoms to
compete with IDS. Due to the MMR
services, the market for circuits into and
out of the Mahwah Data Center is
competitive, with market participants
able to choose between various Telecom
and IDS options. Each market
participant considering whether to
purchase a circuit can choose which
circuit to purchase based on which
combination of provider, latency,
bandwidth, price, and route diversity
best meets its business needs.
The Exchange understands that most
of the Telecoms that provide circuits do
so at fees lower than those of IDS, and
that most Mahwah Customers use
Telecom circuits into and out of the
Mahwah Data Center. If the MMR
services were not available, all Mahwah
Customers and third-party
telecommunications service providers
would be required to use IDS circuits if
they wanted access to the Mahwah Data
Center, thereby reducing competition.20
20 The Exchange recently filed proposed rule
changes regarding the IDS circuits and services
offered to NCL Customers. See note 11, supra.
PO 00000
Frm 00147
Fmt 4703
Sfmt 4703
The Exchange does not expect that
IDS would attract any new customers as
a result of the proposed change.
IDS operates in a highly competitive
market in which exchanges, third party
telecommunications providers, Hosting
Users,21 and other third-party vendors
offer connectivity services as a means to
facilitate the trading and other market
activities of market participants. The
Commission has repeatedly expressed
its preference for competition over
regulatory intervention in determining
prices, products, and services in the
securities markets. Specifically, in
Regulation NMS, the Commission
highlighted the importance of market
forces in determining prices and SRO
revenues and recognized that current
regulation of the market system ‘‘has
been remarkably successful in
promoting market competition in its
broader forms that are most important to
investors and listed companies.’’ 22
The proposed changes are not
otherwise intended to address any other
issues relating to services related to the
Mahwah Data Center and/or related
fees, and the Exchange is not aware of
any problems that market participants
would have in complying with the
proposed change.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
Section 6(b) of the Act,23 in general, and
furthers the objectives of Section 6(b)(5)
of the Act,24 in particular, because it is
designed to prevent fraudulent and
manipulative acts and practices, to
promote just and equitable principles of
trade, to foster cooperation and
coordination with persons engaged in
regulating, clearing, settling, processing
information with respect to, and
facilitating transactions in securities, to
remove impediments to and perfect the
mechanism of a free and open market
and a national market system, and, in
general, to protect investors and the
public interest and because it is not
designed to permit unfair
discrimination between customers,
issuers, brokers, or dealers. The
Exchange further believes that the
proposed rule change is consistent with
Section 6(b)(4) of the Act,25 because it
provides for the equitable allocation of
21 ‘‘Hosting’’ is a service offered by a User to
another entity In the User’s space within the
Mahwah Data Center. The Exchange allows Users
to act as Hosting Users for a monthly fee. See NYSE
Chicago Co-location Notice, supra note 7, at 58782–
83.
22 See Securities Exchange Act Release No. 51808
(June 9, 2005), 70 FR 37496, 37499 (June 29, 2005).
23 15 U.S.C. 78f(b).
24 15 U.S.C. 78f(b)(5).
25 15 U.S.C. 78f(b)(4).
E:\FR\FM\22APN1.SGM
22APN1
Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Notices
reasonable dues, fees, and other charges
among its members and issuers and
other persons using its facilities and
does not unfairly discriminate between
customers, issuers, brokers, or dealers.
The Proposed Change Is Reasonable
The Exchange believes that the
proposed rule change is reasonable and
would perfect the mechanisms of a free
and open market and a national market
system and, in general, protect investors
and the public interest, for the following
reasons.
The Exchange believes that the
proposed rule change is reasonable
because, by making it possible for
Telecoms to continue to offer their
customers circuits into and out of the
Mahwah Data Center, the MMR services
that are the subject of the present filing
would allow Telecoms to continue to
compete with IDS.
The benefit is not just to the Telecoms
themselves. The Exchange understands
that most Mahwah Customers use
Telecom circuits into and out of the
Mahwah Data Center. If the MMR
services were not available, all Mahwah
Customers and third-party
telecommunications service providers
would be required to use IDS circuits to
access the Mahwah Data Center, thereby
reducing competition for connectivity
into the Mahwah Data Center. So long
as the MMR services are available, such
market participants have more choices
with respect to the provider, latency,
bandwidth, price, and route diversity of
the circuits they use, allowing market
participants to select the circuits that
better suit their needs, thereby helping
them tailor their circuits to the
requirements of their businesses.
Use of any MMR service is completely
voluntary. Each third-party
telecommunications provider is able to
determine whether to use MMR services
based on the requirements of its
business operations, and each Mahwah
Customer is able to determine whether
to use Telecom or IDS services based on
the requirements of their business
operations.
The Exchange believes that the
proposed rule change is reasonable
because only the market participants
that voluntarily select to receive the
MMR services described herein are
charged for them, and those services are
available to all telecommunications
service providers licensed by the FCC.
Furthermore, the IDS services described
in this filing are available to all such
market participants on an equal basis.
All Telecoms that voluntarily select a
specific MMR service are charged the
same amount for that service as all other
Telecoms purchasing that service. A
VerDate Sep<11>2014
19:20 Apr 21, 2021
Jkt 253001
Telecom could change what services it
receives at any time.
The Exchange believes the proposed
fees are reasonable because, to the
extent the services IDS offers to
Telecoms are substantially the same as
the services offered by the Exchange to
Users, the fees are the same. With
respect to the two services not offered
to Users, the Conduit Sleeve Fee and
Carrier Connection Fee, the Exchange
believes the fees IDS charges Telecoms
are reasonable because the services
correspond to the Telecoms’ usage of
the IDS conduits and the Telecoms’
ability to offer their circuits to their
customers. The Exchange believes the
proposed fees are reasonable because to
offer the MMRs, IDS must provide,
maintain and operate the Mahwah Data
Center technology infrastructure,
including the installation, monitoring,
support, and maintenance of the MMR
services. Also in connection with
providing the MMR services, IDS needs
to expand the network infrastructure to
keep pace with the services available to
Telecoms, including any increasing
demand for bandwidth and conduit
space, and to establish any additional
administrative controls. Finally, IDS has
to handle the installation,
administration, monitoring, support and
maintenance of the MMR services,
including by responding to any
production issues.
The Exchange believes that IDS’s fees
for different MMR services are
reasonable because not all Telecoms
need, or choose, to utilize the same
services. The variety of services offered
by IDS, particularly with respect to
cabinets and power, allows Telecoms to
select which services to use, based on
their business needs, and Telecoms are
only charged for the services that they
select. By charging only those Telecoms
that utilize a service, those Telecoms
that directly benefit from a service
support it.
The Exchange believes the proposed
MMR Notes 1 and 2 are reasonable
because it would be reasonable for it to
put in place the Proposed Procedures to
establish the allocation of power and
cabinets on an equitable basis.
The Exchange believes that it is
reasonable that, if a shortage in power
or in both power and cabinets should
arise, the Proposed Procedures would
address the allocation of both power
and cabinets, as the Exchange would not
be able to provide cabinets if no power
were available. If Telecoms purchased
sufficient Additional Power to trigger
the Combined Waitlist, the Exchange
would be unable to provide Telecoms
with cabinets, even if it did not have a
shortage in cabinets, because cabinets
PO 00000
Frm 00148
Fmt 4703
Sfmt 4703
21415
come with power. For the same reason,
if Telecoms purchased sufficient
Additional Power to trigger the
Combined Limits, it would be
reasonable to have limits that apply to
both power and cabinets.
The Exchange believes that
integrating the procedures for the
allocation of cabinets and power would
be reasonable, because cabinets are
provided with power. Having both
power and cabinets covered by the
Proposed Procedures would ensure that
the procedures for all relevant services
are consistent and coordinated. Having
the Proposed Procedures state what
would occur if the Cabinet Threshold
and Power Threshold are reached at
different times, and how the Cabinet
Waitlist and Combined Waitlist
interrelate, is reasonable for the same
reason.
The Exchange believes that having a
two-tier structure of establishing, first, a
purchasing limitation on order size, and
second, a waitlist, would be a
reasonable method to respond to
increasing demand for power and
cabinets in the future. The Exchange
notes that the Proposed Procedures are
consistent with both the Nasdaq
procedures for allocating cabinets and
the Exchange procedures for allocating
cabinets and power in colocation.26
The Exchange believes that the
proposed thresholds are reasonable.
Based on experience, the Exchange
believes that the Cabinet Threshold and
Power Threshold are both reasonable
and appropriate because they are
sufficiently low that they would not be
triggered repeatedly, yet offer a
reasonable buffer during which the
purchase limits would apply before a
waitlist would become effective.
The Exchange believes that the
proposed purchase limits are
reasonable. Based on its experience with
the MMR and purchasing trends over
the last few years, the Exchange believes
that in most cases one cabinet would be
sufficient for a Telecom’s needs and
leave a margin for potential growth. For
the same reason, the Exchange believes
that the amount of power that a Telecom
would be allowed to buy under the
proposed limitations, whether in the
form of a cabinet or Additional Power,
would be sufficient for a Telecom’s
needs while leaving a margin for
potential growth.
26 See Securities Exchange Act Release Nos.
62397 (June 28, 2010), 75 FR 38860 (July 6, 2010)
(SR–NASDAQ–2010–019) and 91515 (February 18,
2021), 86 FR 11350 (February 24, 2021) (SR–NYSE–
2021–12; SR–NYSEAmer–2021–08; SR–NYSEArca–
2021–11; SR–NYSECHX–2021–02; and SR–
NYSENAT–2021–03).
E:\FR\FM\22APN1.SGM
22APN1
21416
Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Notices
Further, the Exchange believes that,
by establishing a waitlist on the basis of
the date it receives signed orders,
limiting the size and number of orders
a Telecom may have on the waitlist at
any one time, stating what happens if a
Telecom changes its order while on the
waitlist, and removing a Telecom from
the waitlist if it turns down an offer that
is the same as what it requested, the
Proposed Procedures are reasonably
designed to prevent Telecoms from
utilizing the waitlist as a method to
obtain a greater portion of the power
and cabinets available, and facilitating a
more equitable distribution. Similarly,
the Exchange believes that by requiring
a 30-day delay before a Telecom subject
to the Cabinet Limits or Combined
Limits could purchase a cabinet or
Additional Power again, the Proposed
Procedures are reasonably designed to
prevent a Telecom from obtaining a
greater portion of the power and
cabinets available.
The Exchange believes that the
proposed change is reasonable because
the Exchange would only place limits
on Telecoms’ ability to purchase
cabinets or Additional Power if either or
both the Power Threshold and Cabinet
Threshold are reached. Similarly, the
Exchange believes that the proposed
change is reasonable because a waitlist
would only be created if unallocated
cabinet inventory or power capacity fell
to zero, or if a Telecom requests, in
writing, a number of cabinets or amount
of power that, if provided, would cause
the available inventory of cabinets and/
or unallocated power capacity to be
below zero, and because there would be
an established threshold for cessation of
the waitlists.
The Proposed Change Is Equitable
The Exchange believes that IDS’s fees
for MMR services are equitably
allocated among market participants.
By making it possible for Telecoms to
continue to offer their customer circuits
into and out of the Mahwah Data Center,
the MMR services that are the subject of
the present filing would allow Telecoms
to continue to compete with IDS.
The benefit is not just to the Telecoms
themselves. The Exchange understands
that most Mahwah Customers use
Telecom circuits into and out of the
Mahwah Data Center. If the MMR
services were not available, all Mahwah
Customers and third-party
telecommunications service providers
would be required to use IDS circuits,
thereby reducing competition for
connectivity into the Mahwah Data
Center. So long as the MMR services are
available, such market participants have
more choices with respect to the
VerDate Sep<11>2014
19:20 Apr 21, 2021
Jkt 253001
provider, latency, bandwidth, price, and
route diversity of the circuits they use,
allowing market participants to select
the circuits that better suit their needs,
thereby helping them tailor their
circuits to the requirements of their
businesses.
The Exchange believes that the
proposed change is equitable because it
would apply to all market participants
and would not apply differently to
distinct types or sizes of licensed
telecommunications service providers.
It would apply to all equally.
The Exchange believes that the
proposed rule change is equitable
because only the market participants
that voluntarily select to receive the
MMR services described herein are
charged for them, and those services are
available to all telecommunications
service providers licensed by the FCC.
Furthermore, the IDS services described
in this filing are available to all such
market participants on an equal basis
(i.e., the same products and services are
available to all telecommunications
service providers licensed by the FCC).
All Telecoms that voluntarily select a
specific MMR service are charged the
same amount for that service as all other
Telecoms purchasing that service. A
Telecom could change what services it
receives at any time.
The Exchange believes the proposed
MMR Notes 1 and 2 are equitable
because the Proposed Procedures would
establish a rational, objective procedure
that would be applied uniformly by the
Exchange to all Telecoms that requested
new cabinets or Additional Power.
The Exchange believes that the
proposed thresholds are equitable.
Based on experience, the Exchange
believes that the Cabinet Threshold and
Power Threshold are both reasonable
and appropriate because they are
sufficiently low that they would not be
triggered repeatedly, yet offer a
reasonable buffer during which the
purchase limits would apply before a
waitlist would become effective.
The Exchange believes that the
proposed purchase limits are equitable.
Based on its experience with the MMR
and purchasing trends over the last few
years, the Exchange believes that in
most cases one cabinet would be
sufficient for a Telecom’s needs while
leaving a margin for potential growth.
For the same reason, the Exchange
believes that the amount of power that
a Telecom would be allowed to buy
under the proposed limitations, whether
in the form of a cabinet or Additional
Power, would be sufficient for a
Telecom’s needs while leaving a margin
for potential growth.
PO 00000
Frm 00149
Fmt 4703
Sfmt 4703
Further, the Exchange believes that
the Proposed Procedures facilitate an
equitable distribution of cabinets and
power, as they are reasonably designed
to prevent Telecoms from utilizing the
waitlist as a method to obtain a greater
portion of the power and cabinets
available, and because they would
require a 30-day delay before a Telecom
subject to the Cabinet Limits or
Combined Limits could purchase a
cabinet or Additional Power again. The
Exchange would only place limits on
Telecoms’ ability to purchase cabinets
or Additional Power if either or both the
Power Threshold and Cabinet Threshold
are reached. A waitlist would only be
created if unallocated cabinet inventory
or power capacity fell to zero, or if a
Telecom requests, in writing, a number
of cabinets or amount of power that, if
provided, would cause the available
inventory of cabinets and/or unallocated
power capacity to be below zero.
The Proposed Change Is Not Unfairly
Discriminatory
The Exchange believes its proposal is
not unfairly discriminatory. The
proposed change would apply to all
market participants and would not
apply differently to distinct types or
sizes of licensed telecommunications
service providers. It would apply to all
equally.
The Exchange believes that the
proposed rule change is not unfairly
discriminatory because only the market
participants that voluntarily select to
receive the MMR services described
herein are charged for them, and those
services are available to all
telecommunications service providers
licensed by the FCC. Furthermore, the
IDS services described in this filing are
available to all such market participants
on an equal basis (i.e., the same
products and services are available to all
telecommunications service providers
licensed by the FCC). All Telecoms that
voluntarily select a specific MMR
service are charged the same amount for
that service as all other Telecoms
purchasing that service. A Telecom
could change what services it receives at
any time.
Due to the MMR services, the market
for circuits into and out of the Mahwah
Data Center is competitive, with market
participants able to choose between
various Telecom and IDS options. Each
of the Telecoms offers circuits to market
participants in competition with the IDS
offerings. Each market participant
considering whether to purchase a
circuit can weigh whether to purchase
an IDS or Telecom circuit, and can
choose which circuit to purchase based
on which combination of provider,
E:\FR\FM\22APN1.SGM
22APN1
Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Notices
latency, bandwidth, price, and route
diversity best meets its business needs.
If the MMR services were not
available, all Mahwah Customers and
third-party telecommunications service
providers would be required to use IDS
circuits, thereby reducing competition
for connectivity into the Mahwah Data
Center. So long as the MMR services are
available, such market participants have
more choices with respect to the
provider, latency, bandwidth, price, and
route diversity of the circuits they use,
allowing market participants to select
the circuits that better suit their needs,
thereby helping them tailor their
circuits to the requirements of their
businesses.
The Exchange believes that the
proposed rule change is not unfairly
discriminatory because, if the Proposed
Procedures were in place, all Telecoms
would be able to identify the permitted
cabinet and power options and the
procedures that would apply to them in
the event that unallocated cabinet or
power supply runs low in the future.
The Proposed Procedures would assist
the Exchange in accommodating
demand for MMR services, and power
and cabinets in particular, on an
equitable basis.
For the reasons above, the proposed
changes do not unfairly discriminate
between or among market participants
that are otherwise capable of satisfying
any applicable fees, requirements, terms
and conditions established from time to
time by the Exchange.
For these reasons, the Exchange
believes that the proposal is consistent
with the Act.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
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.
As noted above, the Exchange is
making the current proposal solely as a
result of the Commission’s recent
interpretation of the definitions of
‘‘exchange’’ and ‘‘facility’’ in the
Wireless Approval Order, which the
Exchange is presently challenging on
appeal to the Court of Appeals for the
District of Columbia Circuit.27 The
Exchange has nevertheless proposed
this rule change in order to preserve the
ability of IDS to offer the services
described herein.
If IDS were compelled to stop offering
such services, Telecoms would not be
able to provide circuits into and out of
the Mahwah Data Center, and all
27 See
note 5, supra.
VerDate Sep<11>2014
19:20 Apr 21, 2021
Jkt 253001
Mahwah Customers and third-party
telecommunications service providers
would be required to use IDS circuits,
thereby reducing competition for
connectivity into the Mahwah Data
Center, which would be a detriment to
competition overall. Indeed, the
Exchange understands that most
Mahwah Customers use Telecom
circuits into and out of the Mahwah
Data Center. That option would be
removed if IDS were compelled to stop
offering MMR services.
The Exchange notes that IDS
competes with the Telecoms to provide
circuits for Mahwah Customers, as well
as other Telecoms, and that none of the
Telecoms have been compelled to file
their services or fees with the
Commission. Requiring IDS to do so
puts IDS at a competitive disadvantage
vis-a`-vis its competitors. Requiring the
Exchange to file IDS services and fees is
therefore a burden on competition.
The Exchange believes competition
would be best served by allowing IDS to
freely compete with the other providers
of connectivity services into and out of
the Mahwah Data Center, without the
additional burden on IDS alone to file
any proposed changes to services and
fees with the Commission.
With respect to the proposed MMR
Notes 1 and 2, the Exchange believes
that, if triggered, the imposition of the
purchase limits or waitlist provisions
would not impose a burden on a
Telecom’s ability to compete that is not
necessary or appropriate. The Exchange
believes that it would be reasonable for
it to put in place the Proposed
Procedures to establish a method for
allocating not just cabinets but also
power on an equitable basis.
The Exchange would only follow the
Proposed Procedures and place limits
on Telecoms’ ability to purchase new
power and cabinets if either or both the
proposed Power Threshold and Cabinet
Threshold were met. Similarly, a
waitlist would only be created if
unallocated cabinet inventory or power
capacity fell to zero, or if a Telecom
requests, in writing, a number of
cabinets or amount of power that, if
provided, would cause the available
inventory of cabinets and/or unallocated
power capacity to be below zero.
Based on its experience with the
MMR and purchasing trends over the
last few years, the Exchange believes
that in most cases one cabinet would be
sufficient for a Telecom’s needs while
leaving a margin for potential growth.
For the same reason, the Exchange
believes that the amount of power that
a Telecom would be allowed to buy
under the proposed limitations, whether
in the form of a cabinet or Additional
PO 00000
Frm 00150
Fmt 4703
Sfmt 4703
21417
Power, would be sufficient for a
Telecom’s needs while leaving a margin
for potential growth.
The Exchange believes that the
proposed MMR Notes would articulate
rational, objective procedures, and
would serve to reduce any potential for
confusion on how cabinets and power
would be allocated if a shortage in one
or the other were to arise in the future,
and would thereby make the Price List
more transparent and reduce any
potential ambiguity.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
No written comments were solicited
or received with respect to the proposed
rule change.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of
publication of this notice in the Federal
Register, or such longer period up to 90
days (i) as the Commission may
designate if it finds such longer period
to be appropriate and publishes its
reasons for so finding or (ii) as to which
the self-regulatory organization
consents, the Commission will:
(A) By order approve or disapprove
the proposed rule change, or
(B) institute proceedings to determine
whether the proposed rule change
should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
NYSECHX–2021–07 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–NYSECHX–2021–07. 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
E:\FR\FM\22APN1.SGM
22APN1
21418
Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Notices
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–NYSECHX–2021–07, and
should be submitted on or before May
13, 2021.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.28
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. 2021–08316 Filed 4–21–21; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–91586; File No. SR–ICEEU–
2021–006]
Self-Regulatory Organizations; ICE
Clear Europe Limited; Order Approving
Proposed Rule Change Relating to the
ICE Clear Europe CDS Clearing Stress
Testing Policy, CDS End of Day Price
Discovery Policy, CDS Risk Model
Description and CDS Risk Policy and
CDS Parameters Review Procedures
April 16, 2021.
I. Introduction
On February 23, 2021, ICE Clear
Europe Limited (‘‘ICE Clear Europe’’)
filed with the Securities and Exchange
Commission (‘‘Commission’’), pursuant
to Section 19(b)(1) of the Securities
Exchange Act of 1934 (the ‘‘Act’’),1 and
28 17
1 15
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
VerDate Sep<11>2014
19:20 Apr 21, 2021
Jkt 253001
Rule 19b–4,2 a proposed rule change to
amend its CDS End of Day Price
Discovery Policy (‘‘Price Discovery
Policy’’), CDS Clearing Stress Testing
Policy (‘‘Stress Testing Policy’’), CDS
Risk Policy (‘‘Risk Policy’’), and CDS
Risk Model Description (‘‘Risk Model
Description’’) and to formalize a set of
CDS Parameters Review Procedures
(‘‘Parameters Review Procedures’’). The
proposed rule change was published for
comment in the Federal Register on
March 8, 2021.3 The Commission did
not receive comments regarding the
proposed rule change. For the reasons
discussed below, the Commission is
approving the proposed rule change.
II. Description of the Proposed Rule
Change
As discussed further below, the
proposed rule change would amend the
Price Discovery Policy, Stress Testing
Policy, Risk Policy, and Risk Model
Description, and would formalize the
Parameters Review Procedures, to
describe more fully certain existing
operational practices at ICE Clear
Europe. The proposed rule change also
would amend the Stress Testing Policy
to incorporate the impact of the COVID–
19 pandemic into the stress testing
framework and would amend the Risk
Model Description to address findings
of an independent validation.4
A. Amendments to the Price Discovery
Policy
The Price Discovery Policy describes
the procedures and processes that ICE
Clear Europe uses to produce reliable,
market-driven prices for credit default
swap (‘‘CDS’’) instruments. In order to
provide more reliable pricing where
fewer than three Clearing Members have
open interest in a particular instrument,
the proposed rule change would clarify
the general process for determining
prices in such a situation. The proposed
rule change also would make minor
terminology updates to add uniformity
to defined terms, properly reference
various ICE Clear Europe personnel and
operations, add a new table illustrating
2 17
CFR 240.19b–4.
3 Self-Regulatory Organizations; ICE Clear Europe
Limited; Notice of Filing of Proposed Rule Change
Relating to the ICE Clear Europe CDS Clearing
Stress Testing Policy, CDS End of Day Price
Discovery Policy, CDS Risk Model Description and
CDS Risk Policy and CDS Parameters Review
Procedures, Exchange Act Release No. 91240
(March 2, 2021); 86 FR 13417 (March 8, 2021) (SR–
ICEEU–2021–006) (‘‘Notice’’).
4 Capitalized terms not otherwise defined herein
have the meanings assigned to them in the ICE
Clear Europe Rulebook, Price Discovery Policy,
Stress Testing Policy, Risk Policy, Risk Model
Description, and Parameters Review Procedures, as
applicable. The description that follows is
excerpted from the Notice, 86 FR at 13417.
PO 00000
Frm 00151
Fmt 4703
Sfmt 4703
example assignment of index risk
factors to market proxy groups, and
make typographical corrections
throughout the document to better
reflect the Rules and other ICE Clear
Europe documentation.
The proposed rule change first would
amend the Price Discovery Policy to
consolidate and clarify the process that
ICE Clear Europe would use to
determine prices for a particular
instrument or risk sub-factor when
fewer than three Clearing Members have
open interest in that instrument or risk
sub-factor.5 The Price Discovery Policy
currently states that if fewer than three
Clearing Members clear open interest in
an instrument, ICE Clear Europe may
require all Clearing Members to provide
a price submission for that instrument.
In that case, the Price Discovery Policy
further provides that ICE Clear Europe
would not use its firm trade mechanism
to require Clearing Members to enter
into trades for that instrument at the
prices submitted. For single-name CDS,
the current version of the Price
Discovery Policy provides an identical
process where fewer than three Clearing
Members have open interest in a
particular risk sub-factor.
The proposed rule change would
combine the separately described
processes for instruments and risk subfactors. The proposed amendments first
would state that tradeable quotes
(meaning price submissions from
Clearing Members having an open
interest) would be ICE Clear Europe’s
preferred source of price data and
should be used where possible and
reliable. As revised, the Price Discovery
Policy would acknowledge, however,
that where there are fewer than three
Clearing Members with open interest in
an instrument or risk sub-factor, there
would not be enough Clearing Members
for ICE Clear Europe to use its firm trade
mechanism.6 In that case, ICE Clear
Europe would require indicative price
quotes 7 from all Clearing Members but
would not require Clearing Members to
enter into firm trades at those prices.
5 As explained in the Price Discovery Policy, the
term instrument refers to the complete set of
contractual terms that affect the value of a CDS
contract, while the term risk sub-factor refers to the
complete set of contractual terms that affect the
value of a CDS contract as well as the reference
entity for that contract.
6 As described above, under ICE Clear Europe’s
firm trade mechanism, ICE Clear Europe selects
Clearing Members to enter into trades at the prices
submitted, and thus this serves as means of
ensuring that Clearing Members submit realistic
price quotes.
7 As proposed to be revised, the Price Discovery
Policy would provide that an indicative quote is a
reasonable estimate of the market price but does not
necessarily reflect a price at which the member
would transact.
E:\FR\FM\22APN1.SGM
22APN1
]]>Agencies
[Federal Register Volume 86, Number 76 (Thursday, April 22, 2021)]
[Notices]
[Pages 21410-21418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08316]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-91601; File No. SR-NYSECHX-2021-07)
Self-Regulatory Organizations; NYSE Chicago, Inc.; Notice of
Filing of Proposed Rule Change To Amend the Schedule of Wireless,
Circuits, and Non-Colocation Connectivity Services Available at the
Mahwah Data Center
April 16, 2021.
Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (``Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is hereby given
that on April 9, 2021, the NYSE Chicago, Inc. (``NYSE Chicago'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II 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\ 15 U.S.C. 78a.
\3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to amend the schedule of wireless, circuits,
and non-colocation connectivity services available at the Mahwah data
center (the ``Fee Schedule'') to add services available to customers in
the meet me rooms in the Mahwah data center and procedures for the
allocation of cabinets and power to such customers. The proposed 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.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to amend the Fee Schedule to add services
available to customers in the two meet me rooms on the north and south
sides of the Mahwah data center (``MMRs'') and procedures for the
allocation of cabinets and power to MMR customers.
The Exchange makes the current proposal solely as a result of its
determination that the Commission's recent interpretations of the Act's
definitions of the terms ``exchange'' and ``facility,'' as expressed in
the Wireless Approval Order,\4\ apply to the connectivity services
described herein that are offered by entities other than the Exchange.
The Exchange disagrees
[[Page 21411]]
with the Commission's interpretations, denies the services covered
herein (and in the Wireless Approval Order) are offerings of an
``exchange'' or a ``facility'' thereof, and has sought review of the
Commission's interpretations, as expressed in the Wireless Approval
Order, in the Court of Appeals for the District of Columbia Circuit.\5\
Pending resolution of such appeal, however, the Exchange is making this
proposed rule change in recognition that the Commission's current
interpretation brings certain offerings of the Exchange's affiliates
into the scope of the terms ``exchange'' or ``facility.''
---------------------------------------------------------------------------
\4\ See Securities Exchange Act Release No. 90209 (October 15,
2020), 85 FR 67044 (October 21, 2020) (SR-NYSE-2020-05, SR-NYSEAMER-
2020-05, SR-NYSEArca-2020-08, SR-NYSECHX-2020-02, SR-NYSENAT-2020-
03, SR-NYSE-2020-11, SR-NYSEAMER-2020-10, SR-NYSEArca-2020-15, SR-
NYSECHX-2020-05, SR-NYSENAT-2020-08) (``Wireless Approval Order'').
\5\ Intercontinental Exchange, Inc. v. SEC, No. 20-1470 (DC Cir.
2020).
---------------------------------------------------------------------------
Background
Through its ICE Data Services (``IDS'') business, Intercontinental
Exchange, Inc. (``ICE'') \6\ operates a data center in Mahwah, New
Jersey (the ``Mahwah Data Center''), from which the Exchange provides
co-location services to any market participant that requests to receive
co-location services directly from the Exchange (``Users'').\7\
Services are also available to customers that are not colocation Users
(``NCL Customers'' and, together with Users, ``Mahwah Customers'').
---------------------------------------------------------------------------
\6\ The Exchange is an indirect subsidiary of ICE and is an
affiliate of New York Stock Exchange LLC, NYSE American LLC, NYSE
Arca, Inc., and NYSE National, Inc. (together, the ``Affiliate
SROs''). Each Affiliate SRO has submitted substantially the same
proposed rule change to propose the changes described herein. See
SR-NYSE-2021-25, SR-NYSEAMER-2021-21, SR-NYSEArca-2021-24, and SR-
NYSENAT-2021-09.
\7\ The Exchange initially filed rule changes relating to its
co-location services with the Securities and Exchange Commission
(``Commission'') in 2019. See Securities Exchange Act Release No.
87408 (October 28, 2019), 84 FR 58778 (November 1, 2019) (SR-
NYSECHX-2019-27) (``NYSE Chicago Co-location Notice'').
---------------------------------------------------------------------------
Mahwah Customers require circuits connecting into and out of the
Mahwah Data Center in order to connect their equipment outside of the
Mahwah Data Center to their equipment or port within the Mahwah Data
Center. IDS and numerous third-party telecommunications service
providers offer these connections to the Mahwah Customers in the form
of wired circuits \8\ into and out of the Mahwah Data Center.
---------------------------------------------------------------------------
\8\ A Mahwah Customer may use a third party wireless connection,
including a proprietary wireless connection, to the Mahwah Data
Center. In such a case, the portion of the connection closest to the
Mahwah Data Center is wired.
---------------------------------------------------------------------------
A third-party telecommunications service provider that provides
wired circuits into and out of the Mahwah Data Center (a ``Telecom'')
\9\ completes a circuit by placing equipment in a MMR and installing
carrier circuits between its MMR equipment and one or more points
outside the Mahwah Data Center.\10\ Mahwah Customers that have
contracted with the Telecom to use the circuit connect to the Telecom's
MMR equipment using a cross connect. Once connected to the Telecom's
equipment, the Mahwah Customers can use the Telecom's circuit to
transport data into and out of the Mahwah Data Center.
---------------------------------------------------------------------------
\9\ Telecoms are licensed by the Federal Communications
Commission (``FCC'') and are not required to be, or be affiliated
with, a member of the Exchange or of an Affiliate SRO.
\10\ Neither IDS nor the Exchange knows the termination point of
a Telecom's circuit or the content of any data sent on a circuit. A
Telecom elects which MMR it will use, or if it will use both.
---------------------------------------------------------------------------
In addition, a Telecom may sell access to its circuits to a second
Telecom, which allows the second Telecom to use the first Telecom's
circuit to access the Mahwah Data Center. In this way, the second
Telecom gains access to the Mahwah Data Center, where it installs its
equipment in an MMR, without incurring the cost of installing its own
proprietary circuits to the Mahwah Data Center. IDS does not consent
to, and need not be informed of, a Telecom's sale of a circuit to
another Telecom.
By making it possible for Telecoms to offer their customers
circuits into and out of the Mahwah Data Center, the MMR services that
are the subject of the present filing allow Telecoms to compete with
IDS. If the MMR services were not available, IDS circuits would be the
only option for all Mahwah Customers and third-party telecommunications
service providers.
MMR Services
The Exchange proposes to add change the title of the Fee Schedule
to ``Wireless and Meet-Me-Room Connectivity Fees and Charges'' and add
the following MMR services and fees to the end of the Fee Schedule,
under the heading ``C. Meet-Me-Room (`MMR') Services.'' \11\
---------------------------------------------------------------------------
\11\ The Exchange recently filed proposed rule changes regarding
the IDS circuits and services offered to NCL Customers. See
Securities Exchange Act Release No. 91219 (February 26, 2021), 86 FR
12724 (March 4, 2021) (SR-NYSECHX-2021-03). If such filing is
approved by the Commission, the Exchange expects to file an
amendment to the present filing to conform to the relevant changes.
---------------------------------------------------------------------------
Cabinet-Related Services
The Exchange proposes to add the following services and fees
relating to the cabinets that IDS provides to Telecoms for them to set
up their servers in the MMRs (collectively, the ``Cabinet-Related
Services''). The Cabinet-Related Services are substantially similar to
co-location services and related fees that the Exchange and the
Affiliate SROs offer to Users, which are set forth in their price lists
and fee schedules (the ``Affiliate SRO Price Lists'').\12\
---------------------------------------------------------------------------
\12\ See ``Co-Location Fees'' in ``New York Stock Exchange Price
List 2021'' at https://www.nyse.com/publicdocs/nyse/markets/nyse/NYSE_Price_List.pdf; ``NYSE American Equities Price List'' at
https://www.nyse.com/publicdocs/nyse/markets/nyse-american/NYSE_America_Equities_Price_List.pdf; ``NYSE American Options Fee
Schedule'' at https://www.nyse.com/publicdocs/nyse/markets/american-options/NYSE_American_Options_Fee_Schedule.pdf; ``NYSE Arca Equities
Fees and Charges'' at https://www.nyse.com/publicdocs/nyse/markets/nyse-arca/NYSE_Arca_Marketplace_Fees.pdf; ``NYSE Arca Options Fees
and Charges'' at https://www.nyse.com/publicdocs/nyse/markets/arca-options/NYSE_Arca_Options_Fee_Schedule.pdf; ``Fee Schedule of NYSE
Chicago, Inc.'' at https://www.nyse.com/publicdocs/nyse/NYSE_Chicago_Fee_Schedule.pdf; and ``NYSE National, Inc. Schedule of
Fees and Rebates'' at https://www.nyse.com/publicdocs/nyse/regulation/nyse/NYSE_National_Schedule_of_Fees.pdf.
---------------------------------------------------------------------------
Initial Fee per MMR Cabinet and MMR Monthly Fee for Cabinets: IDS
offers Telecoms dedicated cabinets in the MMRs to house their
equipment. The cabinets come in sizes based on the number of kilowatts
(``kW'') allocated, subject to a maximum of 8 kW per cabinet. Telecoms
pay an initial fee for each cabinet and a monthly fee based on the
number of kW allocated to all the Telecom's cabinets.\13\ To indicate
how the fee is calculated, the Exchange proposes to add a note stating
that the monthly fee is based on total kWs allocated to all of a
Telecom's cabinets.
---------------------------------------------------------------------------
\13\ For example, a Telecom that had two cabinets with a total
power allocation of 12 kW would have a monthly charge of $1,200 per
kW for the first eight kW and $1,050 per kW for the next four kW
(between 9 kW and 12 kw), for a total of $13,800, irrespective of
how it divided the 12 kW between its cabinets.
---------------------------------------------------------------------------
The Exchange proposes to add the following fees and language to the
Fee Schedule for the Cabinet-Related Services:
------------------------------------------------------------------------
------------------------------------------------------------------------
Initial Fee per MMR Cabinet:
Dedicated Cabinet of up to 8 kW.......................... $5,000
MMR Monthly Fee for Cabinets:
Monthly fee is based on total kWs allocated to all of a
Telecom's cabinets......................................
------------------------------------------------------------------------
Number of kWs Monthly fee
per kW
------------------------------------------------------------------------
4-8........................................................ $1,200
9-20....................................................... 1,050
21-40...................................................... 950
41+........................................................ 900
------------------------------------------------------------------------
Access and Service Fees
The Exchange proposes to add the following services and fees
relating to the access and services IDS provides to Telecoms
(collectively, the ``Access and Service Fees'') to the Fee Schedule.
Most of the Access and Service Fees are substantially similar to
services and related fees that the Exchange and the Affiliate SROs
offer to Users, which are
[[Page 21412]]
set forth in the Affiliate SRO Price Lists.\14\
---------------------------------------------------------------------------
\14\ See note 12, supra.
---------------------------------------------------------------------------
Data Center Fiber Cross Connect: IDS offers fiber cross connects
for an initial and monthly charge. Cross connects may run between a
Telecom's cabinets, between its cabinet and the cabinet of another
Telecom, or between its cabinet and its customer's cabinet or port.\15\
Cross connects may be bundled (i.e., multiple cross connects within a
single sheath) such that a single sheath can hold either one cross
connect or six cross connects.
---------------------------------------------------------------------------
\15\ A cross connect to MMR cabinets may be purchased by the
Telecom or the Telecom's customer. The same fee applies irrespective
of which entity purchases the cross connect.
---------------------------------------------------------------------------
Conduit Sleeve Fee: A Telecom's circuits into and out of the Mahwah
Data Center run through IDS conduits. There are currently three IDS
conduit paths leading into the Mahwah Data Center. A Telecom determines
which conduit or conduits it will use to carry its circuits, which are
carried in individual conduit sleeves. The Telecom is charged an
initial charge for the installation of circuits in the IDS conduit,
which covers up to five hours of work, and a monthly fee per conduit
sleeve for using the IDS conduit.\16\
---------------------------------------------------------------------------
\16\ The number of conduit sleeves a Telecom uses is dependent
on the equipment and technology it uses and the size of the circuits
it sells to Mahwah Customers. Most Telecoms that use them have one
conduit sleeve.
---------------------------------------------------------------------------
Carrier Connection Fee: Telecoms contract with their customers for
circuits into and out of the Mahwah Data Center. A Telecom is charged a
monthly fee for providing such circuits to Mahwah Customers, on a per
connection basis.
Connection to Time Protocol Feed: IDS offers Telecoms the option to
purchase connectivity to the Precision Time Protocol, with monthly and
initial charges. Telecoms may make use of time feeds to receive time
and to synchronize clocks between computer systems or throughout a
computer network, and time feeds may assist Telecoms in other
functions, including record keeping or measuring response times.
Expedite Fee: IDS offers Telecoms the option to expedite the
completion of MMR services purchased or ordered by the Telecoms, for
which the Exchange charges an ``Expedite Fee.''
The Exchange proposes to add the following fees and language to the
Fee Schedule:
------------------------------------------------------------------------
Type of service Description Amount of charge
------------------------------------------------------------------------
Data Center Fiber Cross Furnish and install $500 initial charge
Connect. 1 cross connect. plus $600 monthly
charge.
Furnish and install $500 initial charge
bundle of 6 cross plus $1,800 monthly
connects. charge.
Conduit Sleeve Fee.......... Install (5 hrs) and $1,000 initial
maintain conduit charge plus $2,000
sleeve supporting monthly charge per
Telecom circuit conduit sleeve.
into data center.
Carrier Connection Fee...... Maintain Telecom's $1,150 monthly
connections to its charge per
non-Telecom data connection.
center customers.
Connection to Time Protocol Precision Time $1,000 initial
Feed. Protocol. charge plus $250
monthly charge.
Expedite Fee................ Expedited $4,000 per request.
installation/
completion of MMR
service.
------------------------------------------------------------------------
Service-Related Fees
The Exchange proposes to add the following services and fees
relating to services IDS provides to Telecoms (collectively, the
``Service-Related Fees'') to the Fee Schedule. The Service-Related Fees
are substantially similar to services and related fees that the
Exchange and the Affiliate SROs offer to Users, which are set forth in
the Affiliate SRO Price Lists.\17\
---------------------------------------------------------------------------
\17\ See note 12, supra.
---------------------------------------------------------------------------
Change Fee: IDS charges a Telecom a ``Change Fee'' if the Telecom
requests a change to one or more existing MMR services that IDS has
already established or completed for the Telecom. The Change Fee is
charged per order. If a Telecom orders two or more services at one time
(for example, through submitting an order form requesting multiple
services) the Telecom is charged a one-time Change Fee, which would
cover the multiple services.
Hot Hands Service: IDS offers Telecoms a ``Hot Hands Service,''
which allows Telecoms to use on-site data center personnel to maintain
Telecom equipment, support network troubleshooting, rack and stack a
server in a Telecom's cabinet, power recycling, and install and
document the fitting of cable in a Telecom's cabinet(s). The Hot Hands
fee is charged per half hour.
Shipping and Receiving: IDS offers shipping and receiving services
to Telecoms, with a per shipment fee for the receipt of one shipment of
goods at the Mahwah Data Center from the Telecom or supplier.
Visitor Security Escort: Telecom representatives are required to be
accompanied by a visitor security escort during visits to the Mahwah
Data Center. A fee per visit is charged.
To reflect the above IDS services and fees, the Exchange proposes
to add the following to the Fee Schedule:
------------------------------------------------------------------------
Type of service Description Amount of charge
------------------------------------------------------------------------
Change Fee.................... Change to a service $950 per
that has already been request.
installed/completed
for a Telecom.
Hot Hands Service............. Allows Telecom to use $100 per half
on-site data center hour.
personnel to maintain
Telecom equipment,
support network
troubleshooting, rack
and stack, power
recycling, and
install and document
cable.
Shipping and Receiving........ Receipt of one $100 per
shipment of goods at shipment.
data center on behalf
of Telecom (includes
coordination of
shipping and
receiving).
Visitor Security Escort....... All Telecom $75 per visit.
representatives are
required to be
accompanied by a
visitor security
escort during visits
to the data center.
------------------------------------------------------------------------
[[Page 21413]]
Allocation of Cabinets and Power
The Exchange proposes to establish procedures for the allocation of
cabinets and power to Telecoms. The Exchange believes it would be
prudent to have procedures in place for the allocation of cabinets and
power to Telecoms (``Proposed Procedures''), should such allocation be
necessary. The Exchange proposes to add the Proposed Procedures to the
Fee Schedule under the heading ``MMR Notes.''
As noted above, IDS offers dedicated cabinets in the MMRs to
Telecoms to house their equipment. A Telecom pays an initial fee for
each cabinet and a monthly fee based on the number of kW allocated to
the Telecom's cabinets. The Exchange allocates cabinets on a first-
come/first-serve basis.
A Telecom may request power upgrades to a dedicated cabinet in
addition to the power allocated to such cabinet (the ``Standard Cabinet
Power''), subject to a maximum of 8 kW per cabinet. A Telecom may
request that such additional power (``Additional Power'') be allocated
to a cabinet when it is first set up or later.\18\ A Telecom with a
dedicated cabinet, for example, may develop its infrastructure in a
manner that allows it to expand the hardware within that cabinet by
adding Additional Power. Because it could add Additional Power to its
existing cabinet, the Telecom would not need an additional cabinet.
---------------------------------------------------------------------------
\18\ For example, a Telecom with a 4 kW cabinet may purchase an
additional 1 kW of Additional Power. It would then have a cabinet
with 5 kW of power. It could not, however, purchase more than 4 kW
of Additional Power, as that would take the cabinet to above 8 kW.
The smallest Standard Cabinet Power is 4 kW.
---------------------------------------------------------------------------
The Proposed Procedures would be set forth in Notes 1 and 2. Note 1
would provide that, if the amount of power or cabinets available fell
below specified thresholds, Telecoms would be subject to purchasing
limits. Note 1 would also specify when the purchasing limits would
cease to apply and would provide that if a Telecom requests a number of
cabinets and/or amount of Additional Power that would cause the
unallocated capacity to be below the specified power and cabinet
thresholds, the purchasing limits would apply only to the portion of
the Telecoms's order below the relevant threshold.\19\
---------------------------------------------------------------------------
\19\ For example, if there was 10 kW unallocated power capacity
in the MMR and a Telecom requested to purchase cabinets and
Additional Power that would, together, total 9 kW, the purchasing
limits in MMR Note 1 would not apply to the Telecom's purchase of
the first 2 kW, whether those kW were in the form of cabinets or
Additional Power. Once the power threshold was reached, the combined
limits would be activated, limiting the Telecom's purchase of
additional cabinets and Additional Power. In all, the Telecom would
be permitted to purchase a total of 6 kW out of its original order
of 9 kW. The Telecom could choose whether the 6 kW was in the form
of cabinets, Additional Power, or both.
---------------------------------------------------------------------------
Note 2 would provide that, if the amount of power or cabinets
available fell to zero, Telecoms seeking to purchase power or cabinets
would be put on a waitlist. In both Notes 1 and 2, the Proposed
Procedures would also state how the procedures regarding cabinets and
the procedures regarding power would relate to each other. In each
case, the Proposed Procedures would state what the threshold amount of
power and cabinets would be to discontinue the limits.
Proposed MMR Note 1
The Exchange proposes to add the following under the heading ``Note
1: Cabinet and Power Purchasing Limits'':
If (i) unallocated cabinet inventory is at or below 3 cabinets
(``Cabinet Threshold''), or (ii) the unallocated power capacity in the
MMRs is at or below 8 kW (the ``Power Threshold''), the following
limits on the purchase of new cabinets (``Purchasing Limits'') will
apply:
a. Cabinet Limits. If only the Cabinet Threshold is reached, the
following measures (the ``Cabinet Limits'') will apply:
The Exchange will limit each Telecom's purchase of new
cabinets to a maximum of one dedicated cabinet.
If a Telecom requests, in writing, a number of cabinets
that, if provided, would cause the available cabinet inventory to be
below 3 cabinets, the Cabinet Limits will only apply to the portion of
the Telecom's order below the Cabinet Threshold.
A Telecom will have to wait 30 days from the date of its
signed order form before purchasing a new cabinet again.
When unallocated cabinet inventory for the MMRs is more
than 3 cabinets, the Exchange will discontinue the Cabinet Limits.
b. Combined Limits. If only the Power Threshold is reached or both
the Cabinet Threshold and the Power Threshold are reached, the
following measures (the ``Combined Limits'') will apply:
A Telecom may purchase either or both of the following, so
long as the combined power usage of such purchases is no more than a
maximum of 4 kW:
a. One new cabinet, subject to a maximum standard power allocation
of 4 kW (``Standard Cabinets'').
b. Additional power for new or existing cabinets.
If a Telecom requests, in writing, a number of Standard
Cabinets and/or an amount of additional power that, if provided, would
cause the unallocated power capacity to be below the Power Threshold or
Cabinet Threshold, the Combined Limits would apply only to the portion
of the Telecom's order below the relevant threshold.
A Telecom will have to wait 30 days from the date of its
signed order form before purchasing a new Standard Cabinet or
additional power again.
When unallocated power capacity is above the Power
Threshold, the Exchange will discontinue the Combined Limits. If at
that time the unallocated cabinet inventory is 3 or fewer cabinets, the
Cabinet Limits would enter into effect.
c. Applicability. If the Cabinet Threshold is reached before the
Power Threshold, the Cabinet Limits will be in effect until the Power
Threshold is reached, after which the Combined Limits will apply.
Proposed MMR Note 2
The Exchange proposes to add the following under the heading ``Note
2: Cabinet and Combined Waitlists'':
a. Cabinet Waitlist. The Exchange will create a cabinet waitlist
(``Cabinet Waitlist'') if the available cabinet inventory is zero, or a
Telecom requests, in writing, a number of cabinets that, if provided,
would cause the available inventory to be zero. The Exchange will place
Telecoms seeking cabinets on a Cabinet Waitlist, as follows:
A Telecom will be placed on the Cabinet Waitlist based on
the date its signed order is received. A Telecom may only have one
order for a new cabinet on the Cabinet Waitlist at a time, and the
order is subject to the Cabinet Limits. If a Telecom changes the size
of its order while it is on the Cabinet Waitlist, it will maintain its
place on the Cabinet Waitlist, provided that the Telecom may not
increase the size of its order such that it would exceed the Cabinet
Limits.
As cabinets become available, the Exchange will offer a
cabinet to the Telecom at the top of the Cabinet Waitlist. If the
Telecom's order is completed, it will be removed from the Cabinet
Waitlist.
A Telecom will be removed from the Cabinet Waitlist (a) at
the Telecom's request or (b) if the Telecom turns down an offer of a
cabinet of the same size it requested in its order. If the Exchange
offers the Telecom a cabinet of a different size than the Telecom
requested in its order, the Telecom may turn down the offer and remain
at the
[[Page 21414]]
top of the Cabinet Waitlist until its order is completed.
A Telecom that is removed from the Cabinet Waitlist but
subsequently submits a new written order for a cabinet will be added
back to the bottom of the Cabinet Waitlist.
When unallocated cabinet inventory is more than 3
cabinets, the Exchange will cease use of the Cabinet Waitlist.
b. Combined Waitlist. The Exchange will create a power and cabinet
waitlist (``Combined Waitlist'') if the unallocated power capacity is
zero, or if a Telecom requests, in writing, an amount of power (whether
power allocated to a Standard Cabinet or additional power) that, if
provided, would cause the unallocated power capacity to be below zero.
The Exchange will place Telecoms seeking cabinets or power on the
Combined Waitlist, as follows:
If a Cabinet Waitlist exists when the requirements to
create a Combined Waitlist are met, the Cabinet Waitlist will
automatically convert to the Combined Waitlist. If a Combined Waitlist
exists when the requirements to create a Cabinet Waitlist are met, no
new waitlist will be created, and the Combined Waitlist will continue
in effect.
A Telecom will be placed on the Combined Waitlist based on
the date its signed order for a cabinet and/or additional power is
received. A Telecom may only have one order for a new cabinet and/or
additional power on the Combined Waitlist at a time, and the order
would be subject to the Combined Limits. If a Telecom changes the size
of its order while it is on the Combined Waitlist, it will maintain its
place on the Combined Waitlist, provided that the Telecom may not
increase the size of its order such that it would exceed the Combined
Limits.
As additional power and/or cabinets become available, the
Exchange will offer them to the Telecom at the top of the Combined
Waitlist. If the Telecom's order is completed, the order will be
removed from the Combined Waitlist. If the Telecom's order is not
completed, it will remain at the top of the Combined Waitlist.
A Telecom will be removed from the Combined Waitlist (a)
at the Telecom's request; or (b) if the Telecom turns down an offer
that is the same as its order (e.g. the offer includes a cabinet of the
same size and/or the amount of additional power that the Telecom
requested in its order). If the Exchange offers the Telecom an offer
that is different than its order, the Telecom may turn down the offer
and remain at the top of the Combined Waitlist until its order is
completed.
A Telecom that is removed from the Combined Waitlist but
subsequently submits a new written order for a cabinet and/or
additional power will be added back to the bottom of the waitlist.
If the Combined Waitlist is in effect, when unallocated
power capacity in co-location is at 8 kW or more, the Exchange will
cease use of the Combined Waitlist. If at that time the unallocated
cabinet inventory is 3 or fewer cabinets, the Cabinet Waitlist would
enter into effect.
Application and Impact of the Proposed Changes
The existing Telecoms are currently subject to the described
services and fees. Accordingly, the Exchange expects that if it is
approved, the impact of the proposed change would be minimal.
The proposed change applies to all market participants and does not
apply differently to distinct types or sizes of licensed
telecommunications service providers. Rather, it applies to all
equally.
Use of the services proposed in this filing is completely voluntary
and available to all market participants on a non-discriminatory basis.
Competitive Environment
By making it possible for Telecoms to offer their customers
circuits into and out of the Mahwah Data Center, the MMR services that
are the subject of the present filing allow Telecoms to compete with
IDS. Due to the MMR services, the market for circuits into and out of
the Mahwah Data Center is competitive, with market participants able to
choose between various Telecom and IDS options. Each market participant
considering whether to purchase a circuit can choose which circuit to
purchase based on which combination of provider, latency, bandwidth,
price, and route diversity best meets its business needs.
The Exchange understands that most of the Telecoms that provide
circuits do so at fees lower than those of IDS, and that most Mahwah
Customers use Telecom circuits into and out of the Mahwah Data Center.
If the MMR services were not available, all Mahwah Customers and third-
party telecommunications service providers would be required to use IDS
circuits if they wanted access to the Mahwah Data Center, thereby
reducing competition.\20\
---------------------------------------------------------------------------
\20\ The Exchange recently filed proposed rule changes regarding
the IDS circuits and services offered to NCL Customers. See note 11,
supra.
---------------------------------------------------------------------------
The Exchange does not expect that IDS would attract any new
customers as a result of the proposed change.
IDS operates in a highly competitive market in which exchanges,
third party telecommunications providers, Hosting Users,\21\ and other
third-party vendors offer connectivity services as a means to
facilitate the trading and other market activities of market
participants. The Commission has repeatedly expressed its preference
for competition over regulatory intervention in determining prices,
products, and services in the securities markets. Specifically, in
Regulation NMS, the Commission highlighted the importance of market
forces in determining prices and SRO revenues and recognized that
current regulation of the market system ``has been remarkably
successful in promoting market competition in its broader forms that
are most important to investors and listed companies.'' \22\
---------------------------------------------------------------------------
\21\ ``Hosting'' is a service offered by a User to another
entity In the User's space within the Mahwah Data Center. The
Exchange allows Users to act as Hosting Users for a monthly fee. See
NYSE Chicago Co-location Notice, supra note 7, at 58782-83.
\22\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
---------------------------------------------------------------------------
The proposed changes are not otherwise intended to address any
other issues relating to services related to the Mahwah Data Center
and/or related fees, and the Exchange is not aware of any problems that
market participants would have in complying with the proposed change.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\23\ in general, and furthers the
objectives of Section 6(b)(5) of the Act,\24\ in particular, because it
is designed to prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest
and because it is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers. The Exchange further believes
that the proposed rule change is consistent with Section 6(b)(4) of the
Act,\25\ because it provides for the equitable allocation of
[[Page 21415]]
reasonable dues, fees, and other charges among its members and issuers
and other persons using its facilities and does not unfairly
discriminate between customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------
\23\ 15 U.S.C. 78f(b).
\24\ 15 U.S.C. 78f(b)(5).
\25\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------
The Proposed Change Is Reasonable
The Exchange believes that the proposed rule change is reasonable
and would perfect the mechanisms of a free and open market and a
national market system and, in general, protect investors and the
public interest, for the following reasons.
The Exchange believes that the proposed rule change is reasonable
because, by making it possible for Telecoms to continue to offer their
customers circuits into and out of the Mahwah Data Center, the MMR
services that are the subject of the present filing would allow
Telecoms to continue to compete with IDS.
The benefit is not just to the Telecoms themselves. The Exchange
understands that most Mahwah Customers use Telecom circuits into and
out of the Mahwah Data Center. If the MMR services were not available,
all Mahwah Customers and third-party telecommunications service
providers would be required to use IDS circuits to access the Mahwah
Data Center, thereby reducing competition for connectivity into the
Mahwah Data Center. So long as the MMR services are available, such
market participants have more choices with respect to the provider,
latency, bandwidth, price, and route diversity of the circuits they
use, allowing market participants to select the circuits that better
suit their needs, thereby helping them tailor their circuits to the
requirements of their businesses.
Use of any MMR service is completely voluntary. Each third-party
telecommunications provider is able to determine whether to use MMR
services based on the requirements of its business operations, and each
Mahwah Customer is able to determine whether to use Telecom or IDS
services based on the requirements of their business operations.
The Exchange believes that the proposed rule change is reasonable
because only the market participants that voluntarily select to receive
the MMR services described herein are charged for them, and those
services are available to all telecommunications service providers
licensed by the FCC. Furthermore, the IDS services described in this
filing are available to all such market participants on an equal basis.
All Telecoms that voluntarily select a specific MMR service are charged
the same amount for that service as all other Telecoms purchasing that
service. A Telecom could change what services it receives at any time.
The Exchange believes the proposed fees are reasonable because, to
the extent the services IDS offers to Telecoms are substantially the
same as the services offered by the Exchange to Users, the fees are the
same. With respect to the two services not offered to Users, the
Conduit Sleeve Fee and Carrier Connection Fee, the Exchange believes
the fees IDS charges Telecoms are reasonable because the services
correspond to the Telecoms' usage of the IDS conduits and the Telecoms'
ability to offer their circuits to their customers. The Exchange
believes the proposed fees are reasonable because to offer the MMRs,
IDS must provide, maintain and operate the Mahwah Data Center
technology infrastructure, including the installation, monitoring,
support, and maintenance of the MMR services. Also in connection with
providing the MMR services, IDS needs to expand the network
infrastructure to keep pace with the services available to Telecoms,
including any increasing demand for bandwidth and conduit space, and to
establish any additional administrative controls. Finally, IDS has to
handle the installation, administration, monitoring, support and
maintenance of the MMR services, including by responding to any
production issues.
The Exchange believes that IDS's fees for different MMR services
are reasonable because not all Telecoms need, or choose, to utilize the
same services. The variety of services offered by IDS, particularly
with respect to cabinets and power, allows Telecoms to select which
services to use, based on their business needs, and Telecoms are only
charged for the services that they select. By charging only those
Telecoms that utilize a service, those Telecoms that directly benefit
from a service support it.
The Exchange believes the proposed MMR Notes 1 and 2 are reasonable
because it would be reasonable for it to put in place the Proposed
Procedures to establish the allocation of power and cabinets on an
equitable basis.
The Exchange believes that it is reasonable that, if a shortage in
power or in both power and cabinets should arise, the Proposed
Procedures would address the allocation of both power and cabinets, as
the Exchange would not be able to provide cabinets if no power were
available. If Telecoms purchased sufficient Additional Power to trigger
the Combined Waitlist, the Exchange would be unable to provide Telecoms
with cabinets, even if it did not have a shortage in cabinets, because
cabinets come with power. For the same reason, if Telecoms purchased
sufficient Additional Power to trigger the Combined Limits, it would be
reasonable to have limits that apply to both power and cabinets.
The Exchange believes that integrating the procedures for the
allocation of cabinets and power would be reasonable, because cabinets
are provided with power. Having both power and cabinets covered by the
Proposed Procedures would ensure that the procedures for all relevant
services are consistent and coordinated. Having the Proposed Procedures
state what would occur if the Cabinet Threshold and Power Threshold are
reached at different times, and how the Cabinet Waitlist and Combined
Waitlist interrelate, is reasonable for the same reason.
The Exchange believes that having a two-tier structure of
establishing, first, a purchasing limitation on order size, and second,
a waitlist, would be a reasonable method to respond to increasing
demand for power and cabinets in the future. The Exchange notes that
the Proposed Procedures are consistent with both the Nasdaq procedures
for allocating cabinets and the Exchange procedures for allocating
cabinets and power in colocation.\26\
---------------------------------------------------------------------------
\26\ See Securities Exchange Act Release Nos. 62397 (June 28,
2010), 75 FR 38860 (July 6, 2010) (SR-NASDAQ-2010-019) and 91515
(February 18, 2021), 86 FR 11350 (February 24, 2021) (SR-NYSE-2021-
12; SR-NYSEAmer-2021-08; SR-NYSEArca-2021-11; SR-NYSECHX-2021-02;
and SR-NYSENAT-2021-03).
---------------------------------------------------------------------------
The Exchange believes that the proposed thresholds are reasonable.
Based on experience, the Exchange believes that the Cabinet Threshold
and Power Threshold are both reasonable and appropriate because they
are sufficiently low that they would not be triggered repeatedly, yet
offer a reasonable buffer during which the purchase limits would apply
before a waitlist would become effective.
The Exchange believes that the proposed purchase limits are
reasonable. Based on its experience with the MMR and purchasing trends
over the last few years, the Exchange believes that in most cases one
cabinet would be sufficient for a Telecom's needs and leave a margin
for potential growth. For the same reason, the Exchange believes that
the amount of power that a Telecom would be allowed to buy under the
proposed limitations, whether in the form of a cabinet or Additional
Power, would be sufficient for a Telecom's needs while leaving a margin
for potential growth.
[[Page 21416]]
Further, the Exchange believes that, by establishing a waitlist on
the basis of the date it receives signed orders, limiting the size and
number of orders a Telecom may have on the waitlist at any one time,
stating what happens if a Telecom changes its order while on the
waitlist, and removing a Telecom from the waitlist if it turns down an
offer that is the same as what it requested, the Proposed Procedures
are reasonably designed to prevent Telecoms from utilizing the waitlist
as a method to obtain a greater portion of the power and cabinets
available, and facilitating a more equitable distribution. Similarly,
the Exchange believes that by requiring a 30-day delay before a Telecom
subject to the Cabinet Limits or Combined Limits could purchase a
cabinet or Additional Power again, the Proposed Procedures are
reasonably designed to prevent a Telecom from obtaining a greater
portion of the power and cabinets available.
The Exchange believes that the proposed change is reasonable
because the Exchange would only place limits on Telecoms' ability to
purchase cabinets or Additional Power if either or both the Power
Threshold and Cabinet Threshold are reached. Similarly, the Exchange
believes that the proposed change is reasonable because a waitlist
would only be created if unallocated cabinet inventory or power
capacity fell to zero, or if a Telecom requests, in writing, a number
of cabinets or amount of power that, if provided, would cause the
available inventory of cabinets and/or unallocated power capacity to be
below zero, and because there would be an established threshold for
cessation of the waitlists.
The Proposed Change Is Equitable
The Exchange believes that IDS's fees for MMR services are
equitably allocated among market participants.
By making it possible for Telecoms to continue to offer their
customer circuits into and out of the Mahwah Data Center, the MMR
services that are the subject of the present filing would allow
Telecoms to continue to compete with IDS.
The benefit is not just to the Telecoms themselves. The Exchange
understands that most Mahwah Customers use Telecom circuits into and
out of the Mahwah Data Center. If the MMR services were not available,
all Mahwah Customers and third-party telecommunications service
providers would be required to use IDS circuits, thereby reducing
competition for connectivity into the Mahwah Data Center. So long as
the MMR services are available, such market participants have more
choices with respect to the provider, latency, bandwidth, price, and
route diversity of the circuits they use, allowing market participants
to select the circuits that better suit their needs, thereby helping
them tailor their circuits to the requirements of their businesses.
The Exchange believes that the proposed change is equitable because
it would apply to all market participants and would not apply
differently to distinct types or sizes of licensed telecommunications
service providers. It would apply to all equally.
The Exchange believes that the proposed rule change is equitable
because only the market participants that voluntarily select to receive
the MMR services described herein are charged for them, and those
services are available to all telecommunications service providers
licensed by the FCC. Furthermore, the IDS services described in this
filing are available to all such market participants on an equal basis
(i.e., the same products and services are available to all
telecommunications service providers licensed by the FCC). All Telecoms
that voluntarily select a specific MMR service are charged the same
amount for that service as all other Telecoms purchasing that service.
A Telecom could change what services it receives at any time.
The Exchange believes the proposed MMR Notes 1 and 2 are equitable
because the Proposed Procedures would establish a rational, objective
procedure that would be applied uniformly by the Exchange to all
Telecoms that requested new cabinets or Additional Power.
The Exchange believes that the proposed thresholds are equitable.
Based on experience, the Exchange believes that the Cabinet Threshold
and Power Threshold are both reasonable and appropriate because they
are sufficiently low that they would not be triggered repeatedly, yet
offer a reasonable buffer during which the purchase limits would apply
before a waitlist would become effective.
The Exchange believes that the proposed purchase limits are
equitable. Based on its experience with the MMR and purchasing trends
over the last few years, the Exchange believes that in most cases one
cabinet would be sufficient for a Telecom's needs while leaving a
margin for potential growth. For the same reason, the Exchange believes
that the amount of power that a Telecom would be allowed to buy under
the proposed limitations, whether in the form of a cabinet or
Additional Power, would be sufficient for a Telecom's needs while
leaving a margin for potential growth.
Further, the Exchange believes that the Proposed Procedures
facilitate an equitable distribution of cabinets and power, as they are
reasonably designed to prevent Telecoms from utilizing the waitlist as
a method to obtain a greater portion of the power and cabinets
available, and because they would require a 30-day delay before a
Telecom subject to the Cabinet Limits or Combined Limits could purchase
a cabinet or Additional Power again. The Exchange would only place
limits on Telecoms' ability to purchase cabinets or Additional Power if
either or both the Power Threshold and Cabinet Threshold are reached. A
waitlist would only be created if unallocated cabinet inventory or
power capacity fell to zero, or if a Telecom requests, in writing, a
number of cabinets or amount of power that, if provided, would cause
the available inventory of cabinets and/or unallocated power capacity
to be below zero.
The Proposed Change Is Not Unfairly Discriminatory
The Exchange believes its proposal is not unfairly discriminatory.
The proposed change would apply to all market participants and would
not apply differently to distinct types or sizes of licensed
telecommunications service providers. It would apply to all equally.
The Exchange believes that the proposed rule change is not unfairly
discriminatory because only the market participants that voluntarily
select to receive the MMR services described herein are charged for
them, and those services are available to all telecommunications
service providers licensed by the FCC. Furthermore, the IDS services
described in this filing are available to all such market participants
on an equal basis (i.e., the same products and services are available
to all telecommunications service providers licensed by the FCC). All
Telecoms that voluntarily select a specific MMR service are charged the
same amount for that service as all other Telecoms purchasing that
service. A Telecom could change what services it receives at any time.
Due to the MMR services, the market for circuits into and out of
the Mahwah Data Center is competitive, with market participants able to
choose between various Telecom and IDS options. Each of the Telecoms
offers circuits to market participants in competition with the IDS
offerings. Each market participant considering whether to purchase a
circuit can weigh whether to purchase an IDS or Telecom circuit, and
can choose which circuit to purchase based on which combination of
provider,
[[Page 21417]]
latency, bandwidth, price, and route diversity best meets its business
needs.
If the MMR services were not available, all Mahwah Customers and
third-party telecommunications service providers would be required to
use IDS circuits, thereby reducing competition for connectivity into
the Mahwah Data Center. So long as the MMR services are available, such
market participants have more choices with respect to the provider,
latency, bandwidth, price, and route diversity of the circuits they
use, allowing market participants to select the circuits that better
suit their needs, thereby helping them tailor their circuits to the
requirements of their businesses.
The Exchange believes that the proposed rule change is not unfairly
discriminatory because, if the Proposed Procedures were in place, all
Telecoms would be able to identify the permitted cabinet and power
options and the procedures that would apply to them in the event that
unallocated cabinet or power supply runs low in the future. The
Proposed Procedures would assist the Exchange in accommodating demand
for MMR services, and power and cabinets in particular, on an equitable
basis.
For the reasons above, the proposed changes do not unfairly
discriminate between or among market participants that are otherwise
capable of satisfying any applicable fees, requirements, terms and
conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is
consistent with the Act.
B. Self-Regulatory Organization's Statement on Burden on Competition
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.
As noted above, the Exchange is making the current proposal solely
as a result of the Commission's recent interpretation of the
definitions of ``exchange'' and ``facility'' in the Wireless Approval
Order, which the Exchange is presently challenging on appeal to the
Court of Appeals for the District of Columbia Circuit.\27\ The Exchange
has nevertheless proposed this rule change in order to preserve the
ability of IDS to offer the services described herein.
---------------------------------------------------------------------------
\27\ See note 5, supra.
---------------------------------------------------------------------------
If IDS were compelled to stop offering such services, Telecoms
would not be able to provide circuits into and out of the Mahwah Data
Center, and all Mahwah Customers and third-party telecommunications
service providers would be required to use IDS circuits, thereby
reducing competition for connectivity into the Mahwah Data Center,
which would be a detriment to competition overall. Indeed, the Exchange
understands that most Mahwah Customers use Telecom circuits into and
out of the Mahwah Data Center. That option would be removed if IDS were
compelled to stop offering MMR services.
The Exchange notes that IDS competes with the Telecoms to provide
circuits for Mahwah Customers, as well as other Telecoms, and that none
of the Telecoms have been compelled to file their services or fees with
the Commission. Requiring IDS to do so puts IDS at a competitive
disadvantage vis-[agrave]-vis its competitors. Requiring the Exchange
to file IDS services and fees is therefore a burden on competition.
The Exchange believes competition would be best served by allowing
IDS to freely compete with the other providers of connectivity services
into and out of the Mahwah Data Center, without the additional burden
on IDS alone to file any proposed changes to services and fees with the
Commission.
With respect to the proposed MMR Notes 1 and 2, the Exchange
believes that, if triggered, the imposition of the purchase limits or
waitlist provisions would not impose a burden on a Telecom's ability to
compete that is not necessary or appropriate. The Exchange believes
that it would be reasonable for it to put in place the Proposed
Procedures to establish a method for allocating not just cabinets but
also power on an equitable basis.
The Exchange would only follow the Proposed Procedures and place
limits on Telecoms' ability to purchase new power and cabinets if
either or both the proposed Power Threshold and Cabinet Threshold were
met. Similarly, a waitlist would only be created if unallocated cabinet
inventory or power capacity fell to zero, or if a Telecom requests, in
writing, a number of cabinets or amount of power that, if provided,
would cause the available inventory of cabinets and/or unallocated
power capacity to be below zero.
Based on its experience with the MMR and purchasing trends over the
last few years, the Exchange believes that in most cases one cabinet
would be sufficient for a Telecom's needs while leaving a margin for
potential growth. For the same reason, the Exchange believes that the
amount of power that a Telecom would be allowed to buy under the
proposed limitations, whether in the form of a cabinet or Additional
Power, would be sufficient for a Telecom's needs while leaving a margin
for potential growth.
The Exchange believes that the proposed MMR Notes would articulate
rational, objective procedures, and would serve to reduce any potential
for confusion on how cabinets and power would be allocated if a
shortage in one or the other were to arise in the future, and would
thereby make the Price List more transparent and reduce any potential
ambiguity.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of publication of this notice in the
Federal Register, or such longer period up to 90 days (i) as the
Commission may designate if it finds such longer period to be
appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-NYSECHX-2021-07 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-NYSECHX-2021-07. 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
[[Page 21418]]
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-
NYSECHX-2021-07, and should be submitted on or before May 13, 2021.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\28\
---------------------------------------------------------------------------
\28\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. 2021-08316 Filed 4-21-21; 8:45 am]
BILLING CODE 8011-01-P
