[Federal Register Volume 70, Number 198 (Friday, October 14, 2005)]
[Notices]
[Pages 60119-60120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-5652]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52579; File No. SR-NYSE-2004-73]


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

October 7, 2005.
    On December 30, 2004, the New York Stock Exchange, Inc. (``NYSE'' 
or ``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission''), pursuant to Section 19(b)(1) \1\ of the 
Securities Exchange Act of 1934 (``Exchange Act''),\2\ and Rule 19b-4 
thereunder,\3\ a proposed amendment to NYSE Rule 440A relating to 
telephone solicitation. 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 proposed rule 
change, as amended, was published for comment in the Federal Register 
on August 25, 2005.\6\ The Commission received no comments on the 
proposal. This order approves the proposed rule change, as amended.
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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.
    \6\ See Securities Exchange Act Release No. 52308 (August 19, 
2005), 70 FR 49961 (August 25, 2005).
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    NYSE Rule 440A currently provides 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

[[Page 60120]]

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.
    The proposed amendment to NYSE Rule 440A would incorporate 
regulations issued by the Federal Communications Commission (``FCC'') 
and the Federal Trade Commission relating to the implementation of the 
national do-not-call registry and the amendments to the Telephone 
Consumer Protection Act of 1991 (``TCPA'').\7\ The amendment would 
delete current Rule 440A and replace it with new language that 
incorporates the requirements of the FCC regulation, which is 
applicable to broker-dealers, but retain those sections of current Rule 
440A that remain relevant. The proposed amended rule would generally 
prohibit NYSE members, allied members, and employees of members and 
member organizations from making telemarketing calls to people who have 
registered on the national do-not-call registry, while retaining time-
of-day and firm-specific do-not-call restrictions similar to those 
contained in the current rule.
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    \7\ Rules and Regulations Implementing the TCPA, FCC 03-153, 
adopted June 26, 2003, 68 FR 44144 (July 25, 2003). 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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    The Commission finds that the proposed rule change, as amended, is 
consistent with the requirements of the Exchange Act and the rules and 
regulations thereunder applicable to a national securities exchange.\8\ 
In particular, the Commission finds that the proposed rule change is 
consistent with Section 6(b)(5) of the Exchange Act,\9\ 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 Commission believes that the proposed rule 
change, as amended, is designed to accomplish these ends by requiring 
NYSE members, allied members, and employees of members and member 
organizations to observe time-of-day restrictions on telephone 
solicitations, maintain firm-specific do-not-call lists, and refrain 
from initiating telephone solicitations to investors and other members 
of the public who have registered their telephone numbers on the 
national do-not-call registry. The Commission also believes that the 
proposed rule change, as amended, establishes adequate procedures to 
prevent NYSE members, allied members, and employees of members and 
member organizations from making telephone solicitations to do-not-call 
registrants, which should have the effect of protecting investors 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, while providing appropriate exceptions 
to the rule's restrictions, which should promote just and equitable 
principles of trade.
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    \8\ In approving this proposed rule change, the Commission has 
considered whether the proposed rule change will promote efficiency, 
competition, and capital formation. See 15 U.S.C. 78c(f).
    \9\ 15 U.S.C. 78f(b)(5).
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    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\10\ that the proposed rule change (SR-NYSE-2004-73), as amended, 
be and is hereby approved.
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    \10\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. E5-5652 Filed 10-13-05; 8:45 am]
BILLING CODE 8010-01-P