[Federal Register Volume 76, Number 135 (Thursday, July 14, 2011)]
[Notices]
[Pages 41536-41537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17683]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-64842; File No. SR-Phlx-2011-97]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by NASDAQ OMX PHLX LLC To Extend 
the Waiver of Certain Co-Location Installation Fees for an Additional 
Month

July 8, 2011.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\, and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on July 1, 2011, NASDAQ OMX PHLX LLC (``Phlx'' 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. 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 proposes to amend the Fee Schedule to extend the 
waiver of fees assessed for the installation of certain co-location 
services for an additional month.
    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqomxphlx.cchwallstreet.com/, at the principal 
office of the Exchange, at the Commission's Public Reference Room, and 
at the Commission's Web site at http://www.sec.gov.

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
    The Exchange proposes to amend the Phlx Fee Schedule to extend for 
a one-month period the initial waiver of fees assessed for the 
installation of certain co-location services, in order to provide its 
existing and potential new customers a full opportunity to avail 
themselves of the waiver. The initial waiver of fees for the 
installation of certain co-location services commenced June 1, 2011 and 
ended June 30, 2011.\3\ Since the initial waiver, there has been 
significant demand for the select co-location services by existing 
customers, as well as new customers. However, the Exchange has become 
aware that a significant number of new and existing customers are 
unable to complete their requests by June 30, 2011 due to the need for 
additional time to order new equipment to be housed in the cabinets, 
or, to complete the internal approval process for the ongoing monthly 
fees that will be incurred as part of the service. Therefore, the 
Exchange proposes to extend the waiver of fees until July 29, 2011 (the 
``extended period''). Beginning August 1, 2011, the above-referenced 
waived fees will revert to the amount in effect prior to June 1, 2011. 
The Exchange proposes to extend the waiver of the following 
installation fees during the extended period:
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    \3\ See Securities Exchange Act Release No. 64629 (June 8, 2011) 
(SR-Phlx-2011-77).
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    1. Section X(a): Installation fees for new cabinets with power.
    2. Section X(b): Installation fees for external telecommunication, 
inter-cabinet connectivity, connectivity to The Nasdaq Stock Market LLC 
and market data connectivity related to an order for a new cabinet. 
However, the one-time telecommunication connectivity expedite fee \4\ 
will not be waived during the extended period.
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    \4\ The one-time telecommunication connectivity expedite fee is 
a fee for an optional request to complete the installation in a 
shorter time period than the install timeframes.
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    3. Section X(c): Installation fees for cabinet power related to an 
order for a new cabinet.
    4. Section X(d): Installation fees for cooling fans, perforated 
floor tiles and fiber downspouts, which are necessary items to support 
a higher density cabinet and fiber cross connects, relating to an order 
for a new cabinet placed during the extended period. Installation fees 
for other items that are customized or options are not waived during 
the extended period.
    The following requirements must be met to receive the waiver of the 
installation fee:
    1. The new cabinet order must be placed in the CoLo Console \5\ 
during the designated period; and
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    \5\ The ``CoLo Console'' is a Web-based ordering tool that is 
utilized by Phlx to place co-location orders.
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    2. The new cabinet must be live within 90 days of the date of the 
order.\6\
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    \6\ Exchange staff generally installs and makes operational a 
new cabinet within 90 days of the date of the order (the ``live 
date''). The estimated live date is communicated to the customer. 
However, there may be instances where the customer desires the live 
date to be later than the estimated live date provided by Exchange 
staff. In such instances, the live date cannot extend beyond 90 days 
of the date of the order.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6 of the Act,\7\ in general, and with 
Section 6(b)(4) of the Act,\8\ in particular, in that it provides for 
the equitable allocation of reasonable dues, fees and other charges 
among members and issuers and other persons using any facility or 
system which the Exchange operates or controls. The proposed fee waiver 
is reasonable because it provides an opportunity for all new customers 
and all existing customer [sic] that desire additional cabinet space to 
obtain that space without incurring fees. This decrease in fees 
provided a savings of over $100,000 to customers that took advantage of 
the fee waiver during the month of June. In addition, the Exchange 
believes that the fee waiver results in an equitable allocation of fees 
among the members of the Exchange. Specifically, the Exchange believes 
that by encouraging new and existing co-location customers to increase 
their presence in the Exchange's data center, the Exchange will 
generate additional

[[Page 41537]]

order execution and data consumption activity. If it materializes, such 
an increase in activity would assist the Exchange in controlling the 
charges it imposes on members generally for their use of a variety of 
Exchange services. The waiver of fees is also equitably allocated since 
all existing and potential co-location customers may avail themselves 
of the waiver during the period of availability. Notably, during June 
2011, the preponderance of customers availing themselves of the waiver 
were existing, rather than new customers, demonstrating the benefit of 
the program to a variety of members. Finally, extending the program for 
a month will ensure that several customers that have expressed an 
interest in expanding their data center presence but that have not yet 
been able to do so will have the opportunity to benefit from the 
waiver.
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    \7\ 15 U.S.C. 78f.
    \8\ 15 U.S.C. 78f(b)(4).
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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 Act.

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.\9\ 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.
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    \9\ 15 U.S.C. 78s(b)(3)(A)(ii).
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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:

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 Number SR-Phlx-2011-97 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-Phlx-2011-97. 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 Web site 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 a.m. and 3 
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; 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-Phlx-2011-97 and 
should be submitted on or before August 4, 2011.
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    \10\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\10\
Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-17683 Filed 7-13-11; 8:45 am]
BILLING CODE 8011-01-P