[Federal Register Volume 75, Number 225 (Tuesday, November 23, 2010)]
[Notices]
[Pages 71475-71479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29402]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-63324; File No. SR-ISE-2010-103]


Self-Regulatory Organizations; International Securities Exchange, 
LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule 
Change Relating to Market Data Fees

November 17, 2010.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on November 4, 2010, the International Securities Exchange, LLC 
(the ``Exchange'' or the ``ISE'') filed with the Securities and 
Exchange Commission (``Commission'' or ``SEC'') the proposed rule 
change as described in Items I, II, and III 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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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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 its fees for its real-time depth 
of market data offering. The text of the proposed rule change is 
available on the Exchange's Web site http://www.ise.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 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 self-regulatory organization 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
    ISE currently creates market data that consists of options quotes 
and orders and all trades that are executed on the Exchange. ISE also 
produces a Best Bid/Offer, or BBO, with the aggregate size from all 
outstanding quotes and orders at the top price level, or the ``top of 
book.'' This ``core'' \3\ data is formatted according to Options Price 
Reporting Authority (``OPRA'') specification and sent to OPRA for 
redistribution to the public.
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    \3\ ``Core'' data refers to the best-priced quotations and 
comprehensive last sale reports of all markets that the Commission 
requires a central processor to consolidate and distribute to the 
public pursuant to joint-SRO plans. ``Non-core'' data refers to 
products other than the consolidated products that markets offer 
collectively under joint industry plans.
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    Pursuant to Securities and Exchange Commission (``SEC'') approval, 
the Exchange also offers a ``non-core'' data feed on a subscription 
basis called the ISE Depth of Market Data Feed (``Depth Feed''). The 
Depth Feed offering aggregates all quotes and orders at the top five 
price levels on the Exchange, on both the bid and offer side of the 
market. The Depth Feed offering consists of non-marketable orders and 
quotes that a prospective buyer or seller has chosen to display. Depth 
Feed, which is distributed in real time, provides subscribers with a 
consolidated view of tradable prices beyond the BBO. Depth Feed also 
shows additional liquidity and enhances transparency for ISE traded 
options that are not currently available through the OPRA feed. The 
offering is available to members and non-members, and to both 
professional and non-professional subscribers.
    The Exchange currently charges distributors \4\ of Depth Feed 
$5,000 per month. In addition, the Exchange charges the distributor a 
monthly fee per controlled device \5\ of (i) $50 per controlled device 
for Professionals at a distributor where the data is for internal use 
only, (ii) $50 per controlled device for Professionals who receive the 
data from a distributor where the data is further redistributed 
externally, and (iii) $5 per controlled device for Non-Professionals 
who receive the date from a distributor. The Exchange also has a fee 
cap currently in place where for any one month the combined maximum 
amount of fees payable by a distributor is as follows: (i) $7,500 for 
Professionals at a distributor where the data is for internal use only, 
(ii) $12,500 for

[[Page 71476]]

Professionals where the data is further redistributed externally in a 
controlled device, and (iii) $10,000 for Non-Professionals who receive 
the data in a controlled device from a distributor. Additionally, in an 
effort to accommodate a distributor's development effort to integrate 
the Depth Feed offering, the Exchange charges distributors a flat fee 
of $1,000 for the first month after connectivity has been established 
between ISE and the distributor; the Exchange also waives all user fees 
during this one month period.
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    \4\ A ``distributor'' of a Depth Feed is defined on the ISE 
Schedule of Fees as any firm that receives the Depth of Market data 
feed directly from ISE or indirectly through a redistributor and 
then distributes it either internally or externally. A redistributor 
includes market data vendors and connectivity providers such as 
extranets and private network providers.
    \5\ A ``controlled device'' is defined on the ISE Schedule of 
Fees as any device that a distributor of the Depth of Market data 
feed permits to access the information in the Depth of Market Raw 
Data Feed.
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    In differentiating between Professional and Non-Professional 
subscribers, the Exchange proposes to apply the same criteria for 
qualification as a Non-Professional subscriber as the Consolidated Tape 
Association (``CTA'') Plan and Consolidated Quotation System Plan 
Participants use. Accordingly, a ``Non-Professional Subscriber'' is an 
authorized end-user of Depth of Market data who is a natural person and 
who is neither: (a) Registered or qualified with the Securities and 
Exchange Commission (the ``Commission''), the Commodities Futures 
Trading Commission, any state securities agency, any securities 
exchange or association, or any commodities or futures contract market 
or association; (b) engaged as an ``investment advisor'' as that term 
is defined in Section 202(a)(11) of the Investment Advisers Act of 1940 
(whether or not registered or qualified under that act); nor (c) 
employed by a bank or other organization exempt from registration under 
Federal and/or state securities laws to perform functions that would 
require him/her to be so registered or qualified if he/she were to 
perform such functions for an organization not so exempt. A 
``Professional Subscriber'' is an authorized end-user of Depth of 
Market data that has not qualified as a Non-Professional Subscriber.
    The purpose of this filing is to lower the fee cap currently in 
place for Professionals who redistribute the data externally in a 
controlled device. Based on conversations ISE has had with prospective 
subscribers, the Exchange believes lowering the fee cap for this 
offering will lead to increased subscriptions. ISE therefore proposes 
to lower the cap for these professional subscribers from $12,500 to 
$10,000 per month. The Exchange is not proposing to make any other 
changes to the Depth Feed offering.
2. Statutory Basis
    ISE believes that the proposed rule change is consistent with the 
provisions of Section 6 of the Act,\6\ in general, and with Section 
6(b)(4) of the Act,\7\ in particular, in that it provides an equitable 
allocation of reasonable fees among users and recipients of ISE data. 
In adopting Regulation NMS, the Commission granted self-regulatory 
organizations and broker-dealers increased authority and flexibility to 
offer new and unique market data to the public. It was believed that 
this authority would expand the amount of data available to consumers, 
and also spur innovation and competition for the provision of market 
data.
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    \6\ 15 U.S.C. 78f.
    \7\ 15 U.S.C. 78f(b)(4).
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    The Commission concluded that Regulation NMS--by deregulating the 
market in proprietary data--would itself further the Act's goals of 
facilitating efficiency and competition:

    [E]fficiency is promoted when broker-dealers who do not need the 
data beyond the prices, sizes, market center identifications of the 
NBBO and consolidated last sale information are not required to 
receive (and pay for) such data. The Commission also believes that 
efficiency is promoted when broker-dealers may choose to receive 
(and pay for) additional market data based on heir own internal 
analysis of the need for such data.\8\
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    \8\ Securities Exchange Act Release No. 51808 (June 9, 2005), 70 
FR 37496 (June 29, 2005).

    By removing ``unnecessary regulatory restrictions'' on the ability 
of exchanges to sell their own data, Regulation NMS advanced the goals 
of the Act and the principles reflected in its legislative history. If 
the free market should determine whether proprietary data is sold to 
broker-dealers at all, it follows that the price at which such data is 
sold should be set by the market as well.
    On July 21, 2010, President Barak Obama signed into law H.R. 4173, 
the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 
(``Dodd-Frank Act''), which amended Section 19 of the Act. Among other 
things, Section 916 of the Dodd-Frank Act amended paragraph (A) of 
Section 19(b)(3) of the Act by inserting the phrase ``on any person, 
whether or not the person is a member of the self-regulatory 
organization'' after ``due, fee or other charge imposed by the self-
regulatory organization.'' As a result, all SRO rule proposals 
establishing or changing dues, fees, or other charges are immediately 
effective upon filing regardless of whether such dues, fees, or other 
charges are imposed on members of the SRO, non-members, or both. 
Section 916 further amended paragraph (C) of Section 19(b)(3) of the 
Exchange Act to read, in pertinent part, ``At any time within the 60-
day period beginning on the date of filing of such a proposed rule 
change in accordance with the provisions of paragraph (1) [of Section 
19(b)], the Commission summarily may temporarily suspend the change in 
the rules of the self-regulatory organization made thereby, 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 this title. If the Commission takes 
such action, the Commission shall institute proceedings under paragraph 
(2)(B) [of Section 19(b)] to determine whether the proposed rule should 
be approved or disapproved.''
    ISE believes that these amendments to Section 19 of the Act reflect 
Congress's intent to allow the Commission to rely upon the forces of 
competition to ensure that fees for market data are reasonable and 
equitably allocated. Although Section 19(b) had formerly authorized 
immediate effectiveness for a ``due, fee or other charge imposed by the 
self-regulatory organization,'' the Commission adopted a policy and 
subsequently a rule stipulating that fees for data and other products 
available to persons that are not members of the self-regulatory 
organization must be approved by the Commission after first being 
published for comment. At the time, the Commission supported the 
adoption of the policy and the rule by pointing out that unlike 
members, whose representation in self-regulatory organization 
governance was mandated by the Act, non-members should be given the 
opportunity to comment on fees before being required to pay them, and 
that the Commission should specifically approve all such fees. ISE 
believes that the amendment to Section 19 reflects Congress's 
conclusion that the evolution of self-regulatory organization 
governance and competitive market structure have rendered the 
Commission's prior policy on non-member fees obsolete. Specifically, 
many exchanges have evolved from member-owned not-for-profit 
corporations into for-profit investor-owned corporations (or 
subsidiaries of investor-owned corporations). Accordingly, exchanges no 
longer have narrow incentives to manage their affairs for the exclusive 
benefit of their members, but rather have incentives to maximize the 
appeal of their products to all customers, whether members or 
nonmembers, so as to broaden distribution and grow revenues. Moreover, 
we believe that the change also reflects an endorsement of the 
Commission's determinations that

[[Page 71477]]

reliance on competitive markets is an appropriate means to ensure 
equitable and reasonable prices. Simply put, the change reflects a 
presumption that all fee changes should be permitted to take effect 
immediately, since the level of all fees are constrained by competitive 
forces.
    The recent decision of the United States Court of Appeals for the 
District of Columbia Circuit in NetCoalition v. SEC, No. 09-1042 (DC 
Cir. 2010), although reviewing a Commission decision made prior to the 
effective date of the Dodd-Frank Act, upheld the Commission's reliance 
upon competitive markets to set reasonable and equitably allocated fees 
for market data. ``In fact, the legislative history indicates that the 
Congress intended that the market system `evolve through the interplay 
of competitive forces as unnecessary regulatory restrictions are 
removed' and that the SEC wield its regulatory power `in those 
situations where competition may not be sufficient,' such as in the 
creation of a `consolidated transactional reporting system.' '' \9\
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    \9\ NetCoalition, at 15 (quoting H.R. Rep. No. 94-229, at 92 
(1975), as reprinted in 1975 U.S.C.C.A.N. 321, 323).
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    The court's conclusions about Congressional intent are therefore 
reinforced by the Dodd-Frank Act amendments, which create a presumption 
that exchange fees, including market data fees, may take effect 
immediately, without prior Commission approval, and that the Commission 
should take action to suspend a fee change and institute a proceeding 
to determine whether the fee change should be approved or disapproved 
only where the Commission has concerns that the change may not be 
consistent with the Act.

B. Self-Regulatory Organization's Statement on Burden on Competition

    ISE does not believe that the proposed rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act, as amended. Notwithstanding its 
determination that the Commission may rely upon competition to 
establish fair and equitably allocated fees for market data, the 
NetCoaltion court found that the Commission had not, in that case, 
compiled a record that adequately supported its conclusion that the 
market for the data at issue in the case was competitive.
    For the reasons discussed above, ISE believes that the Dodd-Frank 
Act amendments to Section 19 materially alter the scope of the 
Commission's review of future market data filings, by creating a 
presumption that all fees may take effect immediately, without prior 
analysis by the Commission of the competitive environment. Even in the 
absence of this important statutory change, however, ISE believes that 
a record may readily be established to demonstrate the competitive 
nature of the market in question.
    As recently noted by a number of exchanges,\10\ there is intense 
competition between trading platforms that provide transaction 
execution and routing services and proprietary data products. 
Transaction execution and proprietary data products are complementary 
in that market data is both an input and a byproduct of the execution 
service. In fact, market data and trade execution are a paradigmatic 
example of joint products with joint costs. The decision whether and on 
which platform to post an order will depend on the attributes of the 
platform where the order can be posted, including the execution fees, 
data quality and price and distribution of its data products. Without 
the prospect of a taking order seeing and reacting to a posted order on 
a particular platform, the posting of the order would accomplish 
little. Without trade executions, exchange data products cannot exist. 
Data products are valuable to many end users only insofar as they 
provide information that end users expect will assist them or their 
customers in making trading decisions.
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    \10\ See Securities Exchange Act Release Nos. 63084 (October 13, 
2010), 75 FR 64379 (October 19, 2010) (Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change To Revise an 
Optional Depth Data Enterprise License Fee for Broker-Dealer 
Distribution of Depth-of-Book Data) (SR-NASDAQ-2010-125); and 62887 
(September 10, 2010), 75 FR 57092 (September 17, 2010) (Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Relating 
to Market Data Feeds) (SR-PHLX-2010-121).
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    The costs of producing market data include not only the costs of 
the data distribution infrastructure, but also the costs of designing, 
maintaining, and operating the exchange's transaction execution 
platform and the cost of regulating the exchange to ensure its fair 
operation and maintain investor confidence. The total return that a 
trading platform earns reflects the revenues it receives from both 
products and the joint costs it incurs. Moreover, an exchange's 
customers view the costs of transaction executions and of data as a 
unified cost of doing business with the exchange. A broker-dealer will 
direct orders to a particular exchange only if the expected revenues 
from executing trades on the exchange exceed net transaction execution 
costs and the cost of data that the broker-dealer chooses to buy to 
support its trading decisions (or those of its customers). The choice 
of data products is, in turn, a product of the value of the products in 
making profitable trading decisions. If the cost of the product exceeds 
its expected value, the broker-dealer will choose not to buy it.
    Moreover, as a broker-dealer chooses to direct fewer orders to a 
particular exchange, the value of the product to that broker-dealer 
decrease, for two reasons. First, the product will contain less 
information, because executions of the broker-dealer's orders will not 
be reflected in it. Second, and perhaps more important, the product 
will be less valuable to that broker-dealer because it does not provide 
information about the venue to which it is directing its orders. Data 
from the competing venue to which the broker-dealer is directing orders 
will become correspondingly more valuable. Thus, a super-competitive 
increase in the fees charged for either transactions or data has the 
potential to impair revenues from both products. ``No one disputes that 
competition for order flow is `fierce'.'' \11\ However, the existence 
of fierce competition for order flow implies a high degree of price 
sensitivity on the part of broker-dealers with order flow, since they 
may readily reduce costs by directing orders toward the lowest-cost 
trading venues. A broker-dealer that shifted its order flow from one 
platform to another in response to order execution price differentials 
would both reduce the value of that platform's market data and reduce 
its own need to consume data from the disfavored platform. Similarly, 
if a platform increases its market data fees, the change will affect 
the overall cost of doing business with the platform, and affected 
broker-dealers will assess whether they can lower their trading costs 
by directing orders elsewhere and thereby lessening the need for the 
more expensive data.
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    \11\ NetCoalition, at 24.
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    Analyzing the cost of market data distribution in isolation from 
the cost of all of the inputs supporting the creation of market data 
will inevitably underestimate the cost of the data. Thus, because it is 
impossible to create data without a fast, technologically robust, and 
well-regulated execution system, system costs and regulatory costs 
affect the price of market data. It would be equally misleading, 
however, to attribute all of the exchange's costs to the market data 
portion of an exchange's

[[Page 71478]]

joint product. Rather, all of the exchange's costs are incurred for the 
unified purposes of attracting order flow, executing and/or routing 
orders, and generating and selling data about market activity. The 
total return that an exchange earns reflects the revenues it receives 
from the joint products and the total costs of the joint products.
    Competition among trading platforms can be expected to constrain 
the aggregate return each platform earns from the sale of its joint 
products, but different platforms may choose from a range of possible, 
and equally reasonable, pricing strategies as the means of recovering 
total costs. For example, some platform may choose to pay rebates to 
attract orders, charge relatively low prices for market information (or 
provide information free of charge) and charge relatively high prices 
for accessing posted liquidity. Other platforms may choose a strategy 
of paying lower rebates (or no rebates) to attract orders, setting 
relatively high prices for market information, and setting relatively 
low prices for accessing posted liquidity. In this environment, there 
is no economic basis for regulating maximum prices for one of the joint 
products in an industry in which suppliers face competitive constraints 
with regard to the joint offering.
    The market for market data products is competitive and inherently 
contestable because there is fierce competition for the inputs 
necessary to the creation of proprietary data and strict pricing 
discipline for the proprietary products themselves. Numerous exchanges 
compete with each other for listings, trades, and market data itself, 
providing virtually limitless opportunities for entrepreneurs who wish 
to produce and distribute their own market data. This proprietary data 
is produced by each individual exchange, as well as other entities, in 
a vigorously competitive market.
    Broker-dealers currently have numerous alternative venues for their 
order flow, including numerous self-regulatory organization (``SRO'') 
markets, as well as internalizing broker-dealers (``BDs'') and various 
forms of alternative trading systems (``ATSs''), including dark pools 
and electronic communication networks (``ECNs''). Each SRO market 
competes to produce transaction reports via trade executions, and two 
FINRA-regulated Trade Reporting Facilities (``TRFs'') compete to 
attract internalized transaction reports. Competitive markets for order 
flow, executions, and transaction reports provide pricing discipline 
for the inputs of proprietary data products. The large number of SROs, 
TRFs, BDs, and ATSs that currently produce proprietary data or are 
currently capable of producing it provides further pricing discipline 
for proprietary data products. Each SRO, TRF, ATS, and BD is currently 
permitted to produce proprietary data products, and many currently do 
or have announced plans to do so, including NASDAQ, NYSE, NYSE Amex, 
NYSEArca, and BATS.
    Any ATS or BD can combine with any other ATS, BD, or multiple ATSs 
or BDs to produce joint proprietary data products. Additionally, order 
routers and market data vendors can facilitate single or multiple 
broker-dealers' production of proprietary data products. The potential 
sources of proprietary products are virtually limitless. The fact that 
proprietary data from ATSs, BDs, and vendors can by-pass SROs is 
significant in two respects. First, non-SROs can compete directly with 
SROs for the production and sale of proprietary data products, as BATS 
and Arca did before registering as exchanges by publishing proprietary 
book data on the Internet. Second, because a single order or 
transaction report can appear in an SRO proprietary product, a non-SRO 
proprietary product, or both, the data available in proprietary 
products is exponentially greater than the actual number of orders and 
transaction reports that exist in the marketplace. Market data vendors 
provide another form of price discipline for proprietary data products 
because they control the primary means of access to end users. Vendors 
impose price restraints based upon their business models. For example, 
vendors such as Bloomberg and Reuters that assess a surcharge on data 
they sell may refuse to offer proprietary products that end users will 
not purchase in sufficient numbers. Internet portals, such as Google, 
impose a discipline by providing only data that will enable them to 
attract ``eyeballs'' that contribute to their advertising revenue. 
Retail broker-dealers, such as Schwab and Fidelity, offer their 
customers proprietary data only if it promotes trading and generates 
sufficient commission revenue. Although the business models may differ, 
these vendors' pricing discipline is the same: They can simply refuse 
to purchase any proprietary data product that fails to provide 
sufficient value. NASDAQ and other producers of proprietary data 
products must understand and respond to these varying business models 
and pricing disciplines in order to market proprietary data products 
successfully.
    Competition among platforms has driven ISE continually to improve 
its platform data offerings and to cater to customers' data needs. For 
example, ISE has developed and maintained multiple delivery mechanisms 
that enable customers to receive data in the form and manner they 
prefer and at the lowest cost to them. ISE offers front end 
applications such as its PrecISE Trade application which helps 
customers utilize data. ISE offers data via multiple extranet 
providers, thereby helping to reduce network and total cost for its 
data products. ISE also offers an enterprise license option to help 
reduce the administrative burden and costs to firms that purchase 
market data. Despite these enhancements and a dramatic increase in 
message traffic, ISE's fees for market data have, for the most part, 
remained flat or, as is the case with this proposal, decreased.

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

    The Exchange has not solicited, and does not intend to solicit, 
comments on this proposed rule change. The Exchange has not received 
any unsolicited written comments from members or other interested 
parties.

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 \12\ and Rule 19b-4(f)(2) \13\ 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 change should be approved or disapproved.
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    \12\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \13\ 17 CFR 240.19b-4(f)(2).
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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:

[[Page 71479]]

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-ISE-2010-103 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-ISE-2010-103. 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 Commissions 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 Web site viewing and printing in 
the Commission's Public Reference Room. Copies of such filing also will 
be available for inspection and copying at the principal office of the 
ISE. 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-ISE-
2010-103 and should be submitted by December 14, 2010.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-29402 Filed 11-22-10; 8:45 am]
BILLING CODE 8011-01-P