[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Notices]
[Pages 72100-72101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28090]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58973; File No. SR-OPRA-2008-04]


Options Price Reporting Authority; Notice of Filing and Immediate 
Effectiveness of Proposed Amendment to the Options Price Reporting 
Authority's Policies With Respect to Device-Based Fees

November 18, 2008.
    Pursuant to Section 11A of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 608 thereunder,\2\ notice is hereby given that 
on November 12, 2008, the Options Price Reporting Authority (``OPRA'') 
submitted to the Securities and Exchange Commission (``Commission'') an 
amendment to the Plan for Reporting of Consolidated Options Last Sale 
Reports and Quotation Information (``OPRA Plan'').\3\ The proposed 
amendment would revise OPRA's ``Policies with Respect to Device-Based 
Fees.'' \4\ The Commission is publishing this notice to solicit 
comments from interested persons on the proposed OPRA Plan amendment.
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    \1\ 15 U.S.C. 78k-1.
    \2\ 17 CFR 242.608.
    \3\ The OPRA Plan is a national market system plan approved by 
the Commission pursuant to Section 11A of the Act and Rule 608 
thereunder (formerly Rule 11Aa3-2). See Securities Exchange Act 
Release No. 17638 (March 18, 1981), 22 S.E.C. Docket 484 (March 31, 
1981). The full text of the OPRA Plan is available at http://www.opradata.com.
    The OPRA Plan provides for the collection and dissemination of 
last sale and quotation information on options that are traded on 
the participant exchanges. The seven participants to the OPRA Plan 
are the Boston Stock Exchange, Inc., the Chicago Board Options 
Exchange, Incorporated, the International Securities Exchange, LLC, 
NASDAQ OMX PHLX, Inc., NASDAQ Stock Market LLC, NYSE Alternext US 
LLC, and NYSE Arca, Inc.
    \4\ OPRA most recently amended its Policies with Respect to 
Device-Based Fees in File No. SR-OPRA-2007-02, Release No. 34-55455.
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I. Description and Purpose of the Plan Amendment

    The primary purpose of this filing is to amend the language of the 
current version of OPRA's Policies with Respect to Device-Based Fees to 
confirm their application to third party payment arrangements. A 
secondary purpose of this filing is to make a few additional changes in 
the Policies.

Background

    OPRA uses the term ``device-based fees'' to refer to fees that are 
determined by counting ``devices'' or ``User IDs'' that are enabled to 
receive OPRA data. If a person signs a Professional Subscriber 
Agreement with OPRA, OPRA collects device-based fees with respect to 
the receipt of the data by the Professional Subscriber.\5\ OPRA's 
Policies with Respect to Device-Based Fees, as their title suggests, 
describe various policies with respect to OPRA's device-based fees.
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    \5\ A person may also become an OPRA Professional Subscriber by 
entering into a ``Subscriber Agreement'' with a ``Vendor''--an 
entity that has entered into a Vendor Agreement with OPRA that 
authorizes the entity to redistribute OPRA Data to third persons. If 
a person becomes a Professional Subscriber by signing a Subscriber 
Agreement with a Vendor, the Vendor pays ``usage-based fees'' to 
OPRA. The Policies with Respect to Device-Based Fees are not 
relevant to usage-based fees.
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    OPRA invoices most Professional Subscribers that pay device-based 
fees directly, and the Professional Subscribers pay the device-based 
fees directly to OPRA. Some Professional Subscribers establish 
arrangements with third parties pursuant to which the third parties 
(each, a ``third party payor'') agree to pay OPRA's fees for the 
Professional Subscribers' use of OPRA data. This kind of payment 
arrangement is usually memorialized using an OPRA form agreement 
entitled ``Third Party Billing Agreement.'' \6\
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    \6\ OPRA filed its current form of Third Party Billing Agreement 
in File No. SR-OPRA-2007-01, Release No. 34-55454.

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[[Page 72101]]

Primary Purpose of Filing

    The sections of the Policies entitled ``Counting Devices and User 
IDs'' and ``Professional Subscriber's Responsibility to Verify 
Invoices'' are applicable to device-based fees that a third party payor 
has agreed to pay, and OPRA is proposing to add an express statement to 
this effect to the Policies.
    The section of the Policies entitled ``Counting Devices and User 
IDs'' states a longstanding OPRA policy that OPRA does not require a 
Professional Subscriber that pays device-based fees directly to OPRA to 
pay more than one fee with respect to any device or User ID that is 
enabled to receive OPRA information, even if the device or User ID is 
enabled to receive OPRA information from more than one source or 
``service.'' OPRA proposes to amend this section to state more 
explicitly that OPRA applies this policy on a ``payor by payor'' basis. 
For example, if a particular device is receiving data from one service 
that is being paid for by the Professional Subscriber and a second 
service that is being paid for by a third party payor, OPRA requires 
that the Professional Subscriber pay a device-based fee for the device 
and that the third party payor also pay a device-based fee for the 
device.

Secondary Purpose of Filing

    OPRA is also proposing to amend a paragraph in the Policies that 
describes how a Professional Subscriber may count its devices and User 
IDs to state explicitly that the paragraph is relevant only to those 
Professional Subscribers that have been authorized to enable their own 
devices and User IDs to receive OPRA information. OPRA authorizes 
Professional Subscribers to enable their own devices and User IDs 
pursuant to OPRA's form ``Indirect (Vendor Pass-Through) Circuit 
Connection Rider'' or form ``Direct Circuit Connection Rider.'' The 
``enablement'' process is controlled, for all other Professional 
Subscribers, by the Vendors providing service to these Subscribers, and 
for these Subscribers, the Vendors report this information to OPRA and 
this paragraph in the Policies is not relevant. OPRA is also proposing 
to make a few additional self-explanatory changes in the language of 
the Policies.
    The text of the proposed amendment to the OPRA Plan is available at 
OPRA, the Commission's Public Reference Room, and http://opradata.com.

II. Implementation of the OPRA Plan Amendment

    Pursuant to paragraph to (b)(3)(iii) of Rule 608 under the Act,\7\ 
OPRA designated this amendment as one involving solely technical or 
ministerial matters thereby qualifying the amendment for effectiveness 
upon filing. OPRA states that it will implement the revised form of the 
Policies upon filing with the Commission.
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    \7\ 17 CFR 242.608(b)(3)(iii).
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    The Commission may summarily abrogate the amendment within sixty 
days of its filing and require refiling and approval of the amendment 
by Commission order pursuant to Rule 608(b)(2) under the Act \8\ if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or the 
maintenance of fair and orderly markets, to remove impediments to, and 
perfect the mechanisms of, a national market system, or otherwise in 
furtherance of the purposes of the Act.
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    \8\ 17 CFR 242.608(b)(2).
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III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed OPRA 
Plan amendment is consistent with the 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 an e-mail to [email protected]. Please include 
File No. SR-OPRA-2008-04 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-OPRA-2008-04. 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 plan amendment that are 
filed with the Commission, and all written communications relating to 
the proposed plan amendment 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, 100 F Street, 
NE., Washington, DC 20549, on official business days between the hours 
of 10 a.m. and 3 p.m. Copies of such filing also will be available for 
inspection and copying at the principal office of OPRA. 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-OPRA-2008-04 and should be 
submitted on or before December 17, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(29).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-28090 Filed 11-25-08; 8:45 am]
BILLING CODE 8011-01-P