[Federal Register Volume 70, Number 164 (Thursday, August 25, 2005)]
[Notices]
[Pages 49961-49965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-4653]



[[Page 49961]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52308; File No. SR-NYSE-2004-73]


Self-Regulatory Organizations; New York Stock Exchange, Inc., 
Notice of Filing of Proposed Rule Change and Amendment Nos. 1 and 2 
Thereto To Amend NYSE Rule 440A Relating to Telephone Solicitation

August 19, 2005.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (``Exchange Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is 
hereby given that on December 30, 2004, the New York Stock Exchange, 
Inc. (``NYSE'' or ``Exchange'') filed with the Securities and Exchange 
Commission (``SEC'' or ``Commission'') the proposed rule change as 
described in Items I, II, and III below, which Items have been prepared 
by the Exchange. On July 1, 2005, the NYSE filed Amendment No. 1 to the 
proposed rule change.\4\ On August 11, 2005, the NYSE filed Amendment 
No. 2 to the proposed rule change.\5\ The Commission is publishing this 
notice to solicit comments on the proposed rule change, as amended, 
from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a et seq.
    \3\ 17 CFR 240.19b-4.
    \4\ In Amendment No. 1, the NYSE proposed to partially amend the 
text of proposed amended Rule 440A and made conforming and technical 
changes to the original filing.
    \5\ In Amendment No. 2, the NYSE proposed additional changes to 
the text of proposed amended Rule 440A and made additional changes 
to the original filing.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange is proposing to amend NYSE Rule 440A (``Telephone 
Solicitation'') to incorporate the national Do-Not-Call Registry and 
applicable FCC regulations. The text of current Rule 440A would be 
deleted. The text of the proposed rule change is set forth below. 
Italics indicate new text.
* * * * *

Rule 440A

Telephone Solicitation

    (a) General Telephone Solicitation Requirements
    No member, allied member or employee of a member or member 
organization shall initiate any telephone solicitation, as defined in 
paragraph (j)(2) of this rule, to:

(1) Time of Day Restriction

    Any residence of a person before the hour of 8 a.m. or after 9 p.m. 
(local time at the called party's location), unless
    (A) the member or member organization has an established business 
relationship with the called party pursuant to paragraph (j)(1)(A),
    (B) the member or member organization has received the called 
party's prior express invitation or permission, or
    (C) the called party is a broker or dealer;

(2) Firm-Specific Do-Not-Call List

    Any person that previously has stated that he or she does not wish 
to receive an outbound telephone call made by or on behalf of the 
member or member organization; or

(3) National Do-Not-Call List

    Any person who has registered his or her telephone number on the 
Federal Trade Commission's national do-not-call registry.

(b) Procedures

    Prior to engaging in telephone solicitation or telemarketing, a 
member or member organization must institute procedures to comply with 
paragraph (a). Such procedures must meet the following minimum 
standards:
    (1) Written policy. Members and member organizations must have a 
written policy available upon demand for maintaining a do-not-call 
list.
    (2) Training of personnel engaged in telemarketing. Personnel 
engaged in any aspect of telemarketing must be informed and trained in 
the existence and use of the do-not-call list, including the policies 
and procedures of the firm regarding communications with the public.
    (3) Recording, honoring of do-not-call requests. If a member or 
member organization making a call for telemarketing purposes receives a 
request from a person not to receive calls from that member or member 
organization, the member or member organization must record the request 
and place the person's name, if provided, and telephone number on the 
firm's do-not-call list at the time the request is made. Members and 
member organizations must honor a person's do-not-call request within a 
reasonable time from the date such request is made. This period may not 
exceed 30 days from the date of such request. If such requests are 
recorded or maintained by a party other than the member or member 
organization on whose behalf the telemarketing call is made, the member 
or member organization on whose behalf the telemarketing call is made 
will be liable for any failures to honor the do-not-call request.
    (4) Identification of sellers and telemarketers. A member, allied 
member or employee of a member or member organization making a call for 
telemarketing purposes must provide the called party with the name of 
the individual caller, the name of the member or member organization, 
an address or telephone number at which the member or member 
organization may be contacted, and that the purpose of the call is to 
solicit the purchase or sale of securities or a related service. The 
telephone number provided may not be a 900 number or any other number 
for which charges exceed local or long distance transmission charges.
    (5) Affiliated persons or entities. In the absence of a specific 
request by the person to the contrary, a person's do-not-call request 
shall apply to the member or member organization making the call, and 
will not apply to affiliated entities unless the consumer reasonably 
would expect them to be included given the identification of the caller 
and the product or service being advertised.
    (6) Maintenance of do-not-call lists. A member or member 
organization making calls for telemarketing purposes must maintain a 
record of a caller's request not to receive further telemarketing 
calls. A firm-specific do-not-call request must be honored for five 
years from the time the request is made.

(c) National Do-Not-Call List Exceptions

    Paragraph (a)(3) national do-not-call list restrictions shall not 
apply, if:

(1) Established Business Relationship Exception

    The member or member organization has an established business 
relationship with the recipient of the call. A person's request to be 
placed on the firm-specific do-not-call list terminates the established 
business relationship exception to that national do-not-call list 
provision for that member or member organization even if the person 
continues to do business with the member or member organization;

(2) Prior Express Written Consent Exception

    The member or member organization has obtained the person's prior 
express invitation or permission. Such permission must be evidenced by 
a signed, written agreement between the person and member or member 
organization which states that the person agrees to be contacted by the 
member or member organization and

[[Page 49962]]

includes the telephone number to which the calls may be placed; or

(3) Personal Relationship Exception

    The member, allied member or employee of a member or member 
organization making the call has a personal relationship with the 
recipient of the call.

(d) Safe Harbor Provision

    Paragraph (a)(3) general telephone solicitation restrictions shall 
not apply to a member or employee of a member or member organization 
making telephone solicitations, if the member or employee of a member 
or member organization demonstrates that the violation is the result of 
an error and that as part of the member or member organization's 
routine business practice, it meets the following standards:
    (1) Written procedures. The member or member organization has 
established and implemented written procedures to comply with the 
national do-not-call rules;
    (2) Training of personnel. The member or member organization has 
trained its personnel, and any entity assisting in its compliance, in 
procedures established pursuant to the national do-not-call rules;
    (3) Recording. The member or member organization has maintained and 
recorded a list of telephone numbers that it may not contact; and
    (4) Accessing the national do-not-call database. The member or 
member organization uses a process to prevent telephone solicitations 
to any telephone number on any list established pursuant to the do-not-
call rules, employing a version of the national do-not-call registry 
obtained from the administrator of the registry no more than 31 days 
prior to the date any call is made, and maintains records documenting 
this process.

(e) Pre-Recorded Messages

    (1) A member or member organization may not initiate any telephone 
call to any residence using an artificial or prerecorded voice to 
deliver a message, without the prior express consent of the called 
person, unless the call:
    (i) is not made for a commercial purpose;
    (ii) is made for a commercial purpose, but does not include or 
introduce an unsolicited advertisement or constitute a telephone 
solicitation; or
    (iii) is made to any person with whom the member or member 
organization has an established business relationship at the time the 
call is made.
    (2) All artificial or prerecorded telephone messages shall:
    (i) At the beginning of the message, state clearly the identity of 
the member or member organization that is responsible for initiating 
the call. The member or member organization responsible for initiating 
the call must state the name under which the member or member 
organization is registered to conduct business with the applicable 
State Corporation Commission (or comparable regulatory authority); and
    (ii) During or after the message, must state clearly the telephone 
number (other than that of the autodialer or prerecorded message player 
that placed the call) of such member or member organization. The 
telephone number provided may not be a 900 number or any other number 
for which charges exceed local or long distance transmission charges.
    (iii) For telemarketing messages to a residence, such telephone 
number, mentioned in paragraph (e)(2)(ii) above, must permit any 
individual to make a do-not-call request during regular business hours 
for the duration of the telemarketing campaign.

(f) Wireless Communications

    (1) Members and member organizations are prohibited from using an 
automatic telephone dialing system or an artificial or prerecorded 
voice when initiating a telephone call to any telephone number assigned 
to a paging service, cellular telephone service, specialized mobile 
radio service, or other radio common carrier service, or any service 
for which the called party is charged for the call.
    (2) The requirements of this rule are applicable to members and 
member organizations telemarketing or making telephone solicitation 
calls to wireless telephone numbers.
    (g) Telephone Facsimile or Computer Advertisements
    No member or member organization may use a telephone facsimile 
machine, computer or other device to send an unsolicited advertisement 
to a telephone facsimile machine, computer or other device.
    (1) For purposes of paragraph (g) of this rule, a facsimile 
advertisement is not ``unsolicited'' if the recipient has granted the 
member or member organization prior express invitation or permission to 
deliver the advertisement. Such express invitation or permission must 
be evidenced by a signed, written statement that includes the facsimile 
number to which any advertisements may be sent and clearly indicates 
the recipient's consent to receive such facsimile advertisements from 
the member or member organization.
    (2) Members and member organizations must clearly mark, in a margin 
at the top or bottom of each page of the transmission, the date and 
time it is sent and an identification of the member or member 
organization sending the message and the telephone number of the 
sending machine or of the member or employee of the member or member 
organization sending the transmission.

(h) Caller Identification Information

    (1) Any member or member organization that engages in 
telemarketing, as defined in paragraph (j)(2) of this rule, must 
transmit caller identification information. Such caller identification 
information must include either the Calling Party Number (``CPN'') or 
the calling party's billing number, also known as the Charge Number 
(``ANI''), and, when available from the telephone carrier, the name of 
the member or member organization. The telephone number so provided 
must permit any person to make a do-not-call request during regular 
business hours. Whenever possible, CPN is the preferred number and 
should be transmitted.
    (2) Any member or member organization that engages in 
telemarketing, as defined in paragraph (j)(2) of this rule, is 
prohibited from blocking the transmission of caller identification 
information.
    (3) Provision of caller identification information does not obviate 
the requirement for a caller to verbally supply identification 
information during a call.

(i) Outsourcing Telemarketing

    If a member or member organization uses another entity to perform 
telemarketing services on its behalf, the member or member organization 
remains responsible for ensuring compliance with all provisions 
contained in this rule.

(j) Definitions

    (1) Established Business Relationship
    (A) An established business relationship means a prior or existing 
relationship formed by a voluntary two-way communication between a 
member or member organization and a person, with or without an exchange 
of consideration, if:
    (i) the person has made a financial transaction or has a securities 
position, a money balance, or account activity with the member or 
member organization, or at a clearing firm that provides clearing 
services to such member or member organization, within the previous 18 
months immediately preceding the date of the telephone call;

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    (ii) the member or member organization is the broker-dealer of 
record for an account of the person within the previous 18 months 
immediately preceding the date of the telephone call; or
    (iii) the person has contacted the member or member organization to 
inquire about, or make an application regarding a product or service 
offered by the member or member organization within the previous three 
months immediately preceding the date of the telephone call, which 
relationship has not been previously terminated by either party.
    (B) A person's specific do-not-call request, as set forth in 
paragraph (a)(2) of this rule, terminates an established business 
relationship for purposes of telemarketing and telephone solicitation 
even if the person continues to do business with the member or member 
organization.
    (C) A person's established business relationship with a member or 
member organization does not extend to the member or member 
organization's affiliated entities unless the person would reasonably 
expect them to be included, given the nature and type of products or 
services offered by the affiliate and the identity of the affiliate. 
Similarly, a person's established business relationship with an 
affiliate of a member or member organization does not extend to the 
member or member organization unless the person would reasonably expect 
them to be included, given the nature and type of products or services 
offered, and the identity of, the member or member organization.
    (2) The terms ``telemarketing'' and ``telephone solicitation'' mean 
the initiation of a telephone call or message for the purpose of 
encouraging the purchase or rental of, or investment in, property, 
goods, or services, which is transmitted to any person.
    (3) The term ``telephone facsimile machine'' means equipment which 
has the capacity to transcribe text or images (or both) from paper, 
into an electronic signal and to transmit that signal over a regular 
telephone line, or to transcribe text or images (or both) from an 
electronic signal received over a regular telephone line onto paper.
    (4) The term ``personal relationship'' means any family member, 
friend, or acquaintance of the person making the call.
    (5) The term ``account activity'' shall include, but not be limited 
to, purchases, sales, interest credits or debits, charges or credits, 
dividend payments, transfer activity, securities receipts or 
deliveries, and/or journal entries relating to securities or funds in 
the possession or control of the member.
    (6) The terms ``automatic telephone dialing system'' and 
``autodialer'' mean equipment which has the capacity to store or 
produce telephone numbers to be called using a random or sequential 
number generator and to dial such numbers.
    (7) The term ``broker-dealer of record'' refers to the broker-
dealer identified on a customer's account application or accounts held 
directly at a mutual fund or variable insurance product issuer.
    (8) The term ``unsolicited advertisement'' means any material 
advertising the commercial availability or quality of any products or 
services which is transmitted to any person without that person's prior 
express invitation or permission.
* * * * *

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

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

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

(1) Purpose
    Rule 440A currently states, in relevant part, that no member, 
allied member or employee of a member or member organization shall make 
an outbound telephone call to the residence of any person for the 
purpose of soliciting the purchase of securities or related services at 
any time other than between 8 a.m. and 9 p.m. local time at the called 
person's location without the prior consent of the person; or make an 
outbound telephone call to any person for the purpose of soliciting the 
purchase of securities or related services without disclosing promptly 
and in a clear and conspicuous manner to the called person the 
following information: (1) The identity of the caller and the member or 
member organization; (2) the telephone number or address at which the 
caller may be contacted; and (3) that the purpose of the call is to 
solicit the purchase of securities or related services.
    Amendments to Rule 440A are being proposed to incorporate 
regulations issued by the Federal Communications Commission (``FCC'') 
and the Federal Trade Commission (``FTC'') relating to the 
implementation of the national do-not-call registry and the amendments 
to the Telephone Consumer Protection Act of 1991 (``TCPA'').\6\ The 
Exchange proposes to delete current Rule 440A and adopt new language 
that incorporates the requirements of the FCC regulation, which is 
applicable to broker-dealers, and those sections of current Rule 440A 
that remain relevant.
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    \6\ Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991, FCC 03-153, adopted June 26, 2003, 68 FR 
44144 (July 25, 2003) (``Adopting Release''). The FCC rules address 
such diverse topics as abandoned calls and calls made on behalf of 
tax exempt non-profit organizations. The NYSE's proposed amendment 
does not contain these provisions as such matters generally fall 
outside the purview of the investor protection concerns underlying 
the proposed rule change. Nevertheless, members and member 
organizations are subject to the FCC national do-not-call rules and 
must therefore, comply with those provisions or risk action by the 
FCC.
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Background

    Both the FTC and FCC have established requirements for sellers and 
telemarketers to participate in a national do-not-call registry. 
Beginning in June 2003, consumers have been able to enter their home 
telephone numbers into the national do-not-call registry, which is 
maintained by the FTC. Under rules of the FTC and FCC, sellers and 
telemarketers generally are prohibited from making telephone 
solicitations to consumers whose numbers are listed in the national do-
not-call registry.
    In 1992 and 1995, the FCC and FTC developed requirements for firms 
to maintain do-not-call lists and to limit the hours of telephone 
solicitations.\7\ The NYSE adopted substantially similar rules in 1995 
and 1997.\8\ On July 2, 2003, the SEC requested that the NYSE amend its 
telemarketing rules to include a requirement for its members and member 
organizations to participate in the national do-not-call registry.
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    \7\ The TCPA required the SEC to promulgate telemarketing rules 
substantially similar to those of the FTC or direct self-regulatory 
organizations to do so, unless the SEC determined that such rules 
were not in the interest of investor protection. See 47 U.S.C. 
6102(d) (2003).
    \8\ See SEC Rel. No. 34-35821 (June 7, 1995), 60 FR 31527 (June 
14, 1995) (Order approving NYSE rule requiring members to maintain 
firm-specific do-not-call lists), and SEC Rel. No. 34-38638 (May 14, 
1997), 62 FR 27823 (May 21, 1997) (Order approving NYSE rule and 
interpretation creating telemarketing time-of-day restrictions and 
disclosure provisions).
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    The NYSE is proposing to amend Rule 440A to incorporate the 
national do-not-

[[Page 49964]]

call registry. Because broker-dealers are subject to the FCC's 
telemarketing rules, the NYSE modeled its rule after the FCC's rules, 
with minor modifications tailored to its members and member 
organizations and the securities industry.\9\ A similar rule was filed 
by NASD with the SEC on August 18, 2003 and approved on January 20, 
2004.\10\
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    \9\ Substantively, the Rules of the FCC and FTC are very 
similar. Indeed, Congress has asked the FCC to consult with the FTC 
to maximize consistency between their respective do-not-call rules. 
See The Do-Not-Call Implementation Act, 108 P.L. 10, 117 Stat. 557 
(March 11, 2003).
    \10\ SEC Rel. No. 34-49055 (January 12, 2004), 69 FR 2801 
(January 20, 2004) (Order approving proposed rule change, and notice 
of filing and order granting accelerated approval to Amendment No. 1 
relating to NASD's telemarketing rules to require members to 
participate in the national do-not-call registry). See also SR-NASD-
2004-174 (November 24, 2004) (Proposed amendment to NASD Rule 2212 
(Telemarketing) regarding the frequency of updates from the national 
do-not-call registry).
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Proposed Rule

    Congress enacted the TCPA in an effort to address a growing number 
of telephone marketing practices thought to be an invasion of consumer 
privacy and even a risk to public safety. The statute restricts the use 
of automatic telephone dialing systems, artificial and prerecorded 
messages, and telephone facsimile machines to send unsolicited 
advertisements.

``Telephone Solicitation'' and ``Telemarketing''

    The proposed rule defines both ``telemarketing'' and ``telephone 
solicitation'' to include the initiation of a telephone call or message 
transmitted to any person for the purpose of encouraging the purchase 
of, or investment in, property, goods, or services.

Time/Date and Other Requirements

    Telephone solicitations and telemarketing calls would only be 
permitted between the hours of 8 a.m. and 9 p.m. local time at the 
called party's location subject to certain exceptions. The time-of-day 
restriction is similar to the one currently set out in Rule 440A. 
Telemarketing calls are prohibited to numbers in the national do-not-
call registry and on firm-specific do-not-call lists. Furthermore, 
members and member organizations that take part in telemarketing 
activities would be required to maintain policies, train personnel, 
record and maintain do-not-call requests and identify the person making 
the call, the name of the member or member organization employer, an 
address or telephone number at which the firm may be contacted, and 
inform the called party of the purpose of the call. The telephone 
number may not be a 900 or similar number. Members and member 
organizations would be required to honor a request to be placed on a 
firm-specific do-not-call list within 30 days or sooner if they are 
able to do so. A firm-specific do-not-call request applies only to the 
member or member organization making the call, and not to any 
affiliated entity unless the customer reasonably would expect the 
affiliated entity to be included, given the identification of the 
caller and the product being advertised.

Exceptions From National Do-Not-Call List Restriction

    The proposed rule provides exceptions from the rule's national do-
not-call list restriction for (1) calls made to persons with whom the 
member or member organization has an ``established business 
relationship,'' (2) calls made to persons from whom a member or member 
organization has obtained prior express invitation or permission 
evidenced by a written agreement, and (3) calls to persons with which a 
member, allied member, or employee of a member or member organization 
has a personal relationship. A ``personal relationship'' is a 
relationship between the person making the call and a family member, 
friend, or acquaintance. Members and member organizations should be 
aware that the personal relationship exception applies solely to the 
rule's national do-not-call registry restriction. Thus, if a person 
with whom an employee of a member has a personal relationship has 
requested to be placed on a member's do-not-call list, the employee may 
not make a telephone solicitation to the person on behalf of the 
member.

``Established Business Relationship''

    An ``established business relationship'' \11\ means a prior or 
existing relationship formed by a voluntary two-way communication 
between a member or member organization and a person, with or without 
an exchange of consideration, if: the person has made a financial 
transaction or has a position in their account within the previous 18 
months immediately preceding the call; the member or member 
organization is the broker of record for the person's account within 
the preceding 18 months; or the person has contacted the member or 
member organization to inquire about or make an application regarding a 
product or service within the preceding three months.
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    \11\ See Adopting Release, supra note 6, at 44178.
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Safe Harbor

    The proposed rule provides that a member or employee of a member or 
member organization will not be liable for a violation of the rule's 
national do-not-call registry restriction if the member or employee of 
a member or member organization demonstrates that the violation is the 
result of an error and the member or member organization meets certain 
standards as part of its routine business practice. These standards 
involve: Written procedures to comply with national do-not-call rules; 
training of personnel to comply with national do-not-call rules; 
recording and maintaining a list of telephone numbers that the member 
or member organization may not contact; and using a documented process, 
employing a version of the national do-not-call registry obtained from 
the administrator of the registry no more than 31 days prior to the 
date any call is made, to prevent telephone solicitations to any 
telephone number on any list established pursuant to the do-not-call 
rules.

Wireless Telephone Numbers

    Members and member organizations are prohibited from making 
telephone solicitations and telemarketing calls to wireless telephone 
numbers. In addition, automatic telephone dialing systems and 
artificial or prerecorded voices used to contact wireless telephone 
numbers are also prohibited.

Artificial/Prerecorded Messages

    Members and member organizations are prohibited from using 
artificial or prerecorded voice messages for commercial purposes 
unless: They have permission, the message does not include an 
unsolicited advertisement or constitute a telephone solicitation, or 
the message is transmitted to a person with whom the member or member 
organization has an established business relationship. All artificial 
or prerecorded messages must state clearly the identity and telephone 
number of the member or member organization and the name it is 
registered to conduct business with the applicable State Corporation 
Commission. The telephone number for the member or member organization 
may not be a 900 or similar number.

Telephone Facsimile Machines or Computer Advertisements

    Members and member organizations are prohibited from using a 
telephone facsimile machine, computer or other

[[Page 49965]]

device to send an unsolicited advertisement to a telephone facsimile 
machine, computer or other device, without the express permission of 
the recipient. Members and member organizations must clearly mark, in a 
margin at the top or bottom of each page of the transmission, the date 
and time it is sent and the identification of the member or member 
organization sending the message and the telephone number of the 
sending machine.

Caller Identification Information

    Members and member organizations that engage in telemarketing must 
transmit caller identification information and are explicitly 
prohibited from blocking caller identification information. Caller 
identification information must include either the Calling Party Number 
(``CPN'') or the calling party's billing number, also known as the 
Charge Number (``ANI''), and when available from the telephone carrier, 
the name of the member or member organization. The telephone number 
provided must permit any person to make a do-not-call request during 
normal business hours. Provision of caller identification information 
does not eliminate the requirement for a caller to verbally supply 
identification information during a call. These provisions are intended 
to promote appropriate caller identification practices that comport 
with the FCC's caller identification rules \12\ and related 
guidance.\13\
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    \12\ See 47 CFR 64.1601(e).
    \13\ See Adopting Release, supra note 6, at 44167.
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Outsourcing

    The proposed rule provides that if a member or member organization 
uses another entity to perform telemarketing services on its behalf, 
the member or member organization remains responsible for ensuring 
compliance with all provisions of the rule.
(2) Statutory Basis
    The proposed rule change is consistent with the requirements of the 
Exchange Act and the rules and regulations thereunder applicable to a 
national securities exchange, and in particular, with the requirements 
of Section 6(b)(5) \14\ of the Exchange Act. Section 6(b)(5) requires, 
among other things, that the rules of an exchange be designed to 
promote just and equitable principles of trade, to remove impediments 
to and perfect the mechanism of a free and open market and national 
market system, and in general, to protect investors and the public 
interest. The Exchange believes the proposed rule change will enhance 
investor protection by enabling persons who do not want to receive 
telephone solicitations from members or member organizations to receive 
the protections of the national do-not-call registry.
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    \14\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Exchange Act.

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

    The Exchange has neither solicited nor received written comments on 
the proposed rule change.

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

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding, or (ii) as to 
which the Exchange consents, the Commission will:
    (a) By order approve such 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, as amended, is consistent with the Exchange Act. Comments may 
be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send e-mail to [email protected]. Please include File 
Number SR-NYSE-2004-73 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-9303.
    All submissions should refer to File Number SR-NYSE-2004-73. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro/shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for inspection 
and copying in the Commission's Public Reference Room. Copies of the 
filing also will be available for inspection and copying at the 
principal office of the NYSE. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-NYSE-2004-73 and should be submitted on or before 
September 15, 2005.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. E5-4653 Filed 8-24-05; 8:45 am]
BILLING CODE 8010-01-P