[Federal Register Volume 78, Number 223 (Tuesday, November 19, 2013)]
[Notices]
[Pages 69472-69483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27632]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-70866; File No. SR-Phlx-2013-113]


Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Offer a 
Customer Rebate

November 13, 2013.
    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 October 31, 2013, 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 Section B of the Exchange's Pricing 
Schedule, entitled ``Customer Rebate Program'', to offer its market 
participants an additional rebate.
    While changes to the Pricing Schedule pursuant to this proposal are 
effective upon filing, the Exchange has designated the proposed 
amendment to be operative on November 1, 2013.
    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, 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 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 purpose of the proposed rule change is to amend the Customer 
Rebate Program in Section B of the Pricing Schedule to increase 
Customer rebates available to market participants that transact 
Customer-denominated orders on Phlx. Specifically, Phlx proposes to 
offer its members the opportunity to increase the Customer rebates 
offered in Section B of the Pricing Schedule for transactions on Phlx 
if the aggregate volumes of Customer orders transacted by a member 
organization and its affiliates on Phlx, The NASDAQ Options Market LLC 
(``NOM'') and/or NASDAQ OMX BX, Inc. (``BX Options'') (collectively 
``NASDAQ OMX exchanges'') exceed a specified volume. The Exchange would 
increase the applicable Phlx Customer rebate for which the member 
organization qualified in the Customer Rebate Program by $0.02 per 
contract, in any category, provided the member organization, together 
with any affiliate under Common Ownership,\3\ transacts Customer volume 
on Phlx, NOM and/or BX in multiply-listed options that is 
electronically delivered and executed equal to or greater than 2.5% of 
national customer volume in multiply-listed options during the month.
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    \3\ Common ownership is defined in the Preface to the Pricing 
Schedule as [sic] member organizations under 75% common ownership or 
control.
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    Today, the Exchange pays Customer Rebates based on a four-tier 
structure comprised of percentage thresholds of Customer Orders in 
multiply-listed options based on national volume. There are two 
Categories, A and B, of transactions eligible for rebates. In Category 
A, rebates are paid to members executing electronically-delivered 
Customer Simple Orders in Penny Pilot Options and Customer Simple 
Orders in Non-Penny Pilot Options in Section II symbols.\4\ In Category 
B, rebates are

[[Page 69473]]

paid to members executing electronically-delivered Customer Complex 
Orders in Penny Pilot Options and Non-Penny Pilot Options in Section II 
symbols.\5\ The Exchange bases a market participant's qualification for 
a Customer Rebate Tier on the percentage of total national customer 
volume in multiply-listed options that are transacted monthly on Phlx. 
To determine the applicable rebate, the Exchange totals Customer volume 
in Multiply Listed Options \6\ (including options overlying the SPDR 
S&P 500 (``SPY'')) \7\ that are electronically-delivered and executed, 
except volume associated with electronic Qualified Contingent Cross 
(``QCC'') Orders. \8\ Today, the Customer Rebate Tiers \9\ are as 
follows: \10\
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    \4\ Rebates are paid on PIXL Orders in Section II symbols that 
execute against non-Initiating Order interest, except in the case of 
Customer PIXL Orders that are greater than 999 contracts. All 
Customer PIXL Orders that are greater than 999 contracts will be 
paid a rebate regardless of the contra-party to the transaction. 
PIXL is the Exchange's price improvement mechanism known as Price 
Improvement XL or (PIXL\SM\). See Rule 1080(n). A member may 
electronically submit for execution an order it represents as agent 
on behalf of a public customer, broker-dealer, or any other entity 
(``PIXL Order'') against principal interest or against any other 
order (except as provided in Rule 1080(n)(i)(E)) it represents as 
agent (``Initiating Order''), provided it submits the PIXL order for 
electronic execution into the PIXL Auction (``Auction'') pursuant to 
Rule 1080. See Exchange Rule 1080(n).
    \5\ Rebates are paid on PIXL Orders in Section II symbols that 
execute against non-Initiating Order interest, except in the case of 
Customer PIXL Complex Orders that are greater than 999 contracts. 
All Customer PIXL Complex Orders that are greater than 999 contracts 
will be paid a rebate regardless of the contra-party to the 
transaction.
    \6\ A Multiply Listed security means an option that is listed on 
more than one exchange.
    \7\ SPY is a Multiply Listed Option that is priced differently 
on Phlx as compared to other Multiply Listed Option symbols. See 
Section I of the Pricing Schedule.
    \8\ A QCC Order is comprised of an order to buy or sell at least 
1000 contracts that is identified as being part of a qualified 
contingent trade, as that term is defined in Rule 1080(o)(3), 
coupled with a contra-side order to buy or sell an equal number of 
contracts. The QCC Order must be executed at a price at or between 
the National Best Bid and Offer (``NBBO'') and be rejected if a 
Customer order is resting on the Exchange book at the same price. A 
QCC Order shall only be submitted electronically from off the floor 
to the PHLX XL II System. See Rule 1080(o). See also Securities 
Exchange Act Release No. 64249 (April 7, 2011), 76 FR 20773 (April 
13, 2011) (SR-Phlx-2011-47) (a rule change to establish a QCC Order 
to facilitate the execution of stock/option Qualified Contingent 
Trades (``QCTs'') that satisfy the requirements of the trade-through 
exemption in connection with Rule 611(d) of the Regulation NMS).
    \9\ The Exchange recently filed a rule change to amend the 
percentage threshold requirements in Tiers 3 and 4 as of November 1, 
2013. See SR-Phlx-2013-108 (not yet published).
    \10\ Members and member organizations under Common Ownership may 
aggregate their Customer volume for purposes of calculating the 
Customer Rebate Tiers and receiving rebates.

----------------------------------------------------------------------------------------------------------------
                                               Percentage thresholds of national
                                                  customer volume in multiply-
            Customer rebate tiers                listed equity and ETF options      Category A      Category B
                                                 classes, excluding SPY options
                                                           (monthly)
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Tier 1.......................................  0.00%-0.75%......................           $0.00           $0.00
Tier 2.......................................  Above 0.75%-1.60%................            0.12            0.17
Tier 3.......................................  Above 1.60%-2.50%................            0.14            0.17
Tier 4.......................................  Above 2.50%......................            0.15            0.17
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    The Exchange proposes to offer Phlx members the opportunity to earn 
a higher rebate on Phlx by transacting a quantity of electronically 
delivered and executed Multiply Listed Customer volume that is equal to 
or greater than 2.5% percent of national customer volume in multiply-
listed options. The Exchange desires to incentivize its members to 
achieve this type of volume by offering to aggregate Customer volume 
transacted on Phlx with volume transacted on NOM and/or BX Options for 
the sole purpose of measuring the volume criteria. Phlx would pay the 
additional $0.02 per contract rebate, above and beyond other Customer 
rebates, on all eligible orders \11\ transacted on Phlx by the 
qualifying member organization.\12\ The Exchange believes that the 
additional rebate would lower costs to transact business on Phlx and 
increase the volume of Customer orders directed to and executed on 
Phlx, to the benefit of all other market participants on Phlx.
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    \11\ Orders that are eligible for Customer rebates are specified 
in Section B of the Exchange's Pricing Schedule.
    \12\ A member organization, together with its affiliate under 
Common Ownership, that qualifies for any rebate tier in the Customer 
Rebate Program in Section B of the Pricing Schedule, will have the 
opportunity to increase the applicable Customer rebate by $0.02 per 
contract on Phlx.
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2. Statutory Basis
    The Exchange believes that its proposal to amend its Pricing 
Schedule is consistent with Section 6(b) of the Act \13\ in general, 
and furthers the objectives of Section 6(b)(4) and (b)(5) of the Act 
\14\ 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 Phlx operates or 
controls, and is not designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers.
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    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(4), (5).
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    In analyzing the market for non-core market data, the Commission 
developed a framework for analyzing whether market data fees are 
equitable, fair and reasonable, and not unreasonably 
discriminatory.\15\ NASDAQ [sic] believes that the analytical framework 
adopted in the ArcaBook order with respect to non-core market data is 
equally applicable to exchange transaction fees, which must also be 
reasonable, equitably allocated, and not unfairly discriminatory in 
order to be consistent with the Act. As the Commission found:
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    \15\ Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74770 (December 9, 2008) (SR-NYSEArca-2006-21) 
(``ArcaBook Order''), vacated on other grounds, NetCoalition v. SEC, 
615 F.3d 525 (D.C. Cir. 2010) (``NetCoalition I'').

    If competitive forces are operative, the self-interest of the 
exchanges themselves will work powerfully to constrain unreasonable 
or unfair behavior. . . . [W]hen an exchange is subject to 
competitive forces in its distribution of non-core data, many market 
participants would be unlikely to purchase the exchange's data 
products if it sets fees that are inequitable, unfair, unreasonable, 
or unreasonably discriminatory. As a result, competitive forces 
generally will constrain an exchange in setting fees for non-core 
data because it should recognize that its own profits will suffer if 
it attempts to act unreasonably or unfairly. For example, an 
exchange's attempt to impose unreasonably or unfairly discriminatory 
fees on a certain category of customers would likely be counter-
productive for the exchange because, in a competitive environment, 
such customers generally would be able to respond by using 
alternatives to the exchange's data. The Commission therefore 
believes that the existence of significant competition provides a 
substantial basis for finding that the terms of an exchange's fee 
proposal are equitable, reasonable, and not unreasonably or unfairly 
discriminatory.\16\
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    \16\ ArcaBook Order, 73 FR at 74781-74782.


[[Page 69474]]


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    This reasoning applies with equal weight to transaction fees, since 
members that believe fees at a particular venue to be unreasonable, 
inequitable, or unfairly discriminatory are able to respond by using 
the numerous competitive alternatives that exist. Moreover, although 
the Court of Appeals for the District of Columbia Circuit vacated the 
ArcaBook Order because it concluded that the record before it in that 
case did not adequately support the Commission's determination that the 
market for depth-of-book data was competitive, the Court's opinion 
endorsed the Commission's view that the existence of competitive 
markets may be used as the basis for concluding that a fee is 
consistent with the requirements of the Act.

    The petitioners believe that the SEC's market-based approach is 
prohibited under the Exchange Act because the Congress intended 
``fair and reasonable'' to be determined using a cost-based 
approach. The SEC counters that, because it has statutorily-granted 
flexibility in evaluating market data fees, its market-based 
approach is fully consistent with the Exchange Act. We agree with 
the SEC.\17\
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    \17\ NetCoalition I, 615 F.3d at 534.

    Thus, in analyzing the consistency of a fee change with the Act, 
NASDAQ [sic] believes that it is justified in analyzing, first and 
foremost, the competitive nature of the market in which the fee is 
adopted.
    The Exchange operates in a highly competitive market, comprised of 
twelve exchanges, in which market participants can easily and readily 
direct order flow to competing venues if they deem fee levels at a 
particular venue to be excessive or rebates to be inadequate.\18\ 
Accordingly, in order to remain competitive in its efforts to attract 
order flow, the Exchange must offer market participants an attractive 
trading platform, responsive customer service, and effective management 
tools, in addition to competitive fees and liquidity rebates. Price 
competition is a central component of the competition for order flow. 
As part of this competition, the NASDAQ OMX exchanges have modified 
options trading fees monthly or even bi-monthly to attract new order 
flow, retain existing order flow, and regain order flow lost to 
competitors' price cuts. In 2012, PHLX, NOM and BX Options filed 72 
execution fee changes. As one would expect in a competitive market, the 
overall effect of these fee changes has been to lower options trading 
costs, benefitting investors and promoting the goals of the Securities 
Exchange Act of 1934. For example, based on publicly available data, 
average revenue per contract has generally declined for major options 
market operators as they compete for order flow. The following table 
illustrates the results of that competition.
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    \18\ ``No one disputes that competition for order flow is 
`fierce.' . . . As the SEC explained, `[i]n the U.S. national market 
system, buyers and sellers of securities, and the broker-dealers 
that act as their order-routing agents, have a wide range of choices 
of where to route orders for execution'; [and] `no exchange can 
afford to take its market share percentages for granted' because `no 
exchange possesses a monopoly, regulatory or otherwise, in the 
execution of order flow from broker dealers'. . . .'' NetCoalition 
I, 615 F.3d at 539 (quoting ArcaBook Order, 73 FR at 74782-74783). 
Although the Court and the SEC were discussing the cash equities 
markets, NASDAQ believes that, as discussed above, these views apply 
with equal force to the options markets.
[GRAPHIC] [TIFF OMITTED] TN19NO13.000

    Empirical evidence also demonstrates that no exchange has market 
power sufficient to raise prices for competitively-traded options in an 
unreasonable or unfairly discriminatory manner in violation of the 
Exchange Act. In actuality, it is member firms that control the order 
flow that options markets compete to attract. Only by attracting 
members' orders can options exchanges display bids and offers that are 
the sine qua non of trade executions. This ``second-order'' 
competition--where competition is driven by customers rather than 
sellers of a product--is reflected both in the large number of pricing-
related rule changes and also in rapid shifts of market share among 
multiple effective competitors seen on the chart of equity options 
market share below.

[[Page 69475]]

[GRAPHIC] [TIFF OMITTED] TN19NO13.001

    This level of competition is also readily apparent in the behavior 
of market participants with respect to the Customer orders that are the 
subject of this filing. The chart below shows fluctuations in the 
volume of Customer orders routed to the NASDAQ OMX exchanges by their 
top five member organizations since the beginning of 2013. As is 
apparent from the chart, fluctuations in volume of more than 50% occur, 
as member organizations respond to varying pricing incentives.

[[Page 69476]]

[GRAPHIC] [TIFF OMITTED] TN19NO13.002

    The Commission has a statutory duty to promote competition, 
including price competition. The Commission's traditional restraint in 
regulating fees has fostered intense competition that benefits 
investors and all market participants greatly. In mature markets where 
competition is vibrant, pricing changes are often the most effective 
way for markets to compete vigorously. Where participants view pricing 
on one options market as unpalatable, they are free to move business to 
another market or markets with favorable pricing, and in fact do so 
with regularity, as demonstrated by the empirical data provided above. 
Price competition works best where a variety of different models and 
pricing schemes exist from which to choose and market participants are 
highly knowledgeable about alternatives.
    Diversity in the products and services offered by market 
participants enhances competition and benefits consumers. To establish 
policies that artificially enforce price uniformity would (i) eliminate 
incentives for innovative market participants to invest in providing 
desirable products, (ii) foster marketplace stagnation, and (iii) run 
directly contrary to sound policy.\19\ When Congress charged the 
Commission with supervising the development of a ``national market 
system'' for securities, a premise of its action was that prices 
ordinarily would be determined by market forces.\20\ Consistent with 
this purpose, Congress and the Commission have repeatedly stated their 
preference for competition, rather than regulatory intervention, to 
determine prices, products, and services in the securities markets.\21\
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    \19\ See, e.g., United States v. Microsoft Corp., 147 F.3d 935, 
948 (D.C. Cir. 1998) (``Antitrust scholars have long recognized the 
undesirability of having courts oversee product design, and any 
dampening of technological innovation would be at cross purposes 
with antitrust law.'').
    \20\ See, e.g., H.R. Rep. No. 94-229, at 92 (1975) (Conf. Rep.) 
(stating Congress's intent that the ``national market system evolve 
through the interplay of competitive forces as unnecessary 
regulatory restrictions are removed'').
    \21\ See S. Rep. No. 94-75, 94th Cong., 1st Sess. 8 (1975) 
(``The objective [in enacting the 1975 amendments to the Exchange 
Act] would be to enhance competition and to allow economic forces, 
interacting within a fair regulatory field, to arrive at appropriate 
variations in practices and services.''); ArcaBook Order, 73 FR at 
74781 (``The Exchange Act and its legislative history strongly 
support the Commission's reliance on competition, whenever possible, 
in meeting its regulatory responsibilities for overseeing the SROs 
and the national market system. Indeed, competition among multiple 
markets and market participants trading the same products is the 
hallmark of the national market system.''); Securities Exchange Act 
Release No. 51808 (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) 
(File No. S7-10-04) (``Regulation NMS Adopting Release'') (observing 
that national market system regulation ``has been remarkably 
successful in promoting market competition in [the] forms that are 
most important to investors and listed companies'').
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    Against this background, which establishes that exchange 
transaction fees should be presumed reasonable, equitable, and not 
unfairly discriminatory, Phlx now turns to a particularized analysis of 
the proposed rebate that is the subject of this filing. In doing so, 
Phlx notes that the ArcaBook Order cited the possibility that even in a 
competitive market, a fee might be subject to disapproval if ``there is 
a substantial countervailing basis for determining that a proposal is 
inconsistent with the Act.'' \22\ By way of example, the Commission 
theorized that such a basis might exist in the case of an exchange 
proposal that seeks to ``penalize market participants for trading in 
markets other than the proposing exchange'' because it might constitute 
``unreasonable and unfair discrimination.'' \23\ Although the issue was 
not before it, the Commission also ventured that ``the Exchange Act 
precludes anti-competitive tying of the liquidity pools of separately 
registered national securities exchanges even if they are under common 
control.'' \24\ As discussed in greater detail below, although the 
proposal considers volume on NOM and BX Options in determining whether 
a member organization is eligible for a rebate on Phlx, the proposal at 
issue is not tying, because

[[Page 69477]]

the Phlx member organization is not required to use NOM or BX Options 
at all in order to receive the rebate. Similarly, the proposal is not 
anti-competitive, because Phlx lacks market power, and because the 
proposal is a price incentive paid by Phlx to Phlx member organizations 
with respect to orders executed on Phlx, just like any other exchange 
price discount. Moreover, in discussing why anti-competitive tying 
between two exchanges would present concerns, the Commission stated 
that ``a proposed exchange rule must stand or fall based, among other 
things, on the interests of customers, issuers, broker-dealers, and 
other persons using the facilities of that exchange.'' \25\ In other 
words, Phlx must explain why its proposal is in the best interests of 
Phlx's members to enable the Commission to determine that a 
countervailing basis does not exist for concluding that the proposal is 
inconsistent with the Act in any respect. For the reasons discussed 
below, Phlx believes that the proposal readily meets these standards.
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    \22\ ArcaBook Order, 73 FR at 74782.
    \23\ Id. See also Securities Exchange Act Release No. 65362 
(September 20, 2011), 76 FR 59466 (September 26, 2011) (SR-NASDAQ-
2011-010) (decision pursuant to delegated authority to disapprove 
proposal to discount market data fees for NASDAQ market 
participants), petition for Commission review granted by Securities 
Exchange Act Release No. 66667 (March 28, 2012), 77 FR 20079 (April 
3, 2012).
    \24\ ArcaBook Order, 73 FR at 74790 (emphasis added).
    \25\ ArcaBook Order, 73 FR at 74793.
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The Proposal Is Consistent With the Requirement That Phlx Fees Must Be 
Reasonable
    The Exchange's proposal is reasonable because it provides an 
opportunity for market participants to receive greater rebates and 
therefore enables them to lower costs. In this respect, the proposal 
should be considered, like any fee decrease or rebate increase, 
presumptively consistent with the requirement that exchange fees must 
be reasonable, since trading costs will be lower following 
implementation of the proposal than before. Since existing fees are 
themselves the product of the intense competition described above, it 
is difficult to see how a fee decrease or rebate increase could in any 
set of circumstances cause fees to become unreasonable. Moreover, 
because the rebate is specific to Customer orders transacted on Phlx, 
it benefits retail investors when member organizations choose to pass 
on some portion of the rebate to their customers. Finally, Phlx notes 
that the proposal does not restrict any existing rebates or increase 
any other fees, and therefore will not place any market participants 
that do not qualify for the rebate in a less favorable position than 
under the existing Pricing Schedule. However, as discussed below, to 
the extent that the proposal succeeds in its competitive goal of 
attracting more Customer orders to the Exchange, it has the potential 
to benefit all Phlx market participants.
The Proposal Is Consistent With the Requirement That Phlx's Fees 
Provide for an Equitable Allocation of Fees
    The Exchange's proposal is consistent with an equitable allocation 
of fees because it benefits not only market participants receiving the 
proposed rebate, but has the potential to benefit all other Phlx market 
participants as well. Specifically, the proposal is intended to attract 
a larger amount of Customer liquidity to the Exchange. Today, Phlx 
offers members certain Customer rebates to encourage Phlx member 
organizations to direct Customer order flow to the Exchange, and the 
proposal will provide an additional incentive for Customer order flow. 
Customer liquidity benefits all market participants by providing more 
trading opportunities, which attract Specialists and Market Makers. An 
increase in the activity of these market participants in turn 
facilitates tighter spreads, which may cause an additional 
corresponding increase in order flow from other market participants.
    The proposed rebate is structured as a volume-based discount, 
similar to the existing rebate tiers in Section B of the Pricing 
Schedule. The Commission has previously accepted such volume tiers, and 
they have been adopted by various options exchanges. Tiers are a well-
established method for drawing liquidity to an exchange by paying 
higher rebates to those members that direct a greater amount of order 
flow to the Exchange. Volume tiers in both the cash equity and options 
markets provide reduced pricing to the heaviest liquidity providers and 
liquidity takers. As with existing tiers, the higher the percentage of 
a market participant's Customer orders on Phlx, the higher the rebate. 
However, the aspect of the proposal under which a member organization's 
eligibility is determined by volume on all of the NASDAQ OMX exchanges 
broadens the potential availability of a higher rebate to market 
participants that spread volume across multiple exchanges, rather than 
requiring a concentration of activity on Phlx. Market participants with 
Customer order flow often divide that order flow among Phlx, NOM and BX 
Options, as well as other options exchanges; due to the different 
market and pricing models available at various exchanges, dividing 
order flow may allow them to improve execution quality and to minimize 
costs. For example, a market participant that wants to transact 
contracts in SPY under a pro rata allocation would necessarily send 
order flow to Phlx, rather than NOM or BX Options, because Phlx offers 
such a pro rata allocation.\26\ NOM and BX Options would allocate the 
same SPY transaction using a price-time execution algorithm.\27\ 
Similarly, each exchange offers an array of services in order to 
accommodate the wide array of demands that market participants 
represent on behalf of investors. Finally, because different pricing 
incentives are available on different exchanges, firms may divide order 
flow in order to minimize trading costs. One exchange's technology and 
one exchange's array of services may not be adequate to meet the needs 
of all investors in all circumstances. A one-size-fits-all pricing 
mechanism would not reflect the reality of those market participants 
who represent a diverse set of investors' demands.
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    \26\ See Phlx Rule 1080.
    \27\ See NOM and BX Options Rules at Chapter VI, Section 7. BX 
Options utilizes a price-time execution, as specified on BX Options' 
system setting page located at: http://www.nasdaqomxtrader.com/Content/TechnicalSupport/BXOptions_SystemSettings.pdf.
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    Therefore, recognizing Customer orders on other NASDAQ OMX 
exchanges for purposes of determining volume is aimed at providing 
market participants an incentive that does not make unreasonable 
demands to send all order flow to Phlx, but rather permits those market 
participants to seek different economics and execution models while 
still receiving the benefit of an additional rebate for those Customer 
orders that are transacted on Phlx. Thus, the rebate is an equitable 
means of incentivizing a member with large quantities of Customer 
orders to increase the amount of Customer order flow transacted on 
Phlx, even though the current market structure requires it to fragment 
Customer orders in its efforts to improve execution quality and reduce 
execution costs across its total book of orders. Through the proposal, 
the Exchange seeks to reduce distortionary incentives created by one-
size-fits-all pricing by including Customer volumes traded on NOM and 
BX Options in determining eligibility for the Phlx rebate.
The Proposal Is Not Unfairly Discriminatory
    The Exchange's proposal is not unfairly discriminatory. As 
discussed above, the proposal broadens the availability of an enhanced 
rebate because it does recognize that market participants with high 
volumes of Customer orders may need to fragment their order flow among 
options markets to improve execution quality and lower costs by taking 
advantage of different market structures and pricing options.

[[Page 69478]]

Similar to current volume tiers on Phlx and volume tiers at other 
options exchanges, the value of the incentive received for Customer 
orders executed on Phlx increases as the volume of qualifying orders on 
Phlx increases. Any Phlx market participant may qualify for the 
Customer Rebate Program. Those Phlx members that are able to aggregate 
their Customer volume and achieve high national customer volume on Phlx 
already benefit by receiving rebates for that Customer volume when 
transacted on Phlx. This proposal seeks to incentivize those members to 
send more Customer volume to Phlx in order to receive an enhanced 
rebate paid only with respect to orders on Phlx, while permitting them 
to aggregate Customer volume across NASDAQ OMX exchanges for purposes 
of determining eligibility for the rebate. Therefore, the proposal does 
not discriminate among Phlx members that control high volumes of 
Customer orders, but rather incentivizes them to execute as many 
Customer orders as possible on Phlx in order to receive the benefit of 
the rebate on those orders; moreover, the proposal does not require 
them to fragment their Customer orders to achieve this goal, but 
neither does it discriminate against them by denying eligibility for 
the higher rebate if they do in fact direct order flow away from Phlx. 
Thus, this proposal provides market participants the ability to achieve 
lower costs without compromising their execution obligations. 
Fundamentally, however, the proposed incentive rewards market 
participants for directing a greater number of Customer orders to Phlx, 
just as is the case with existing tier structures at Phlx and other 
options markets.\28\
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    \28\ See Phlx's Pricing Schedule, NOM at Chapter IV, Section 2, 
NYSE Arca's Fee Schedule, NYSE MKT's Fee Schedule, Chicago Board 
Options Exchange, Incorporated's (``CBOE'') Fees Schedule, MIAX's 
Fee Schedule, BATS BZX's Fee Schedule, Gemini's Fee Schedule, C2's 
Options Exchange, Incorporated (``C2'') Fee Schedule and ISE's Fee 
Schedule.
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    To the extent that they offer better pricing to higher volume 
members, existing tier structures that exist at Phlx and other options 
markets are inherently discriminatory, but this discrimination has been 
widely accepted as not unfairly discriminatory because it incentivizes 
greater usage of the market offering the pricing tier, thereby 
benefitting the market's viability and providing liquidity benefits to 
other market participants at that market.\29\ Specifically, options 
exchanges have filed and continue to file rule filings with the 
Commission proposing fees and rebates that create price 
differentiations and segmentations; Phlx believes that such 
differentiations exist in mature healthy competitive markets such as 
the options market, because pricing is a key means by which exchange 
participants compete with one another. Today, various options exchanges 
segment pricing related to Multiply Listed Options as compared to 
Singly Listed Options.\30\ Penny Pilot Options \31\ are also assessed 
different fees and paid different rebates \32\ as compared to Non-Penny 
Options.\33\ Options exchanges differentiate fees for options 
transacted in open outcry \34\ as compared to electronic 
transactions.\35\ A Phlx member transacting Customer orders on the 
floor is not entitled to the Customer Rebate Program described herein 
because that program applies only to electronic transactions.\36\ 
Indeed, the Exchange today differentiates various aspects of floor and 
electronic pricing.\37\ Other types of differentials include Simple 
versus Complex Orders; \38\ auction \39\ versus non-auction orders; 
\40\ opening transactions \41\ versus regular hours trading; order 
types; \42\ floor facilitation \43\ versus non-agency

[[Page 69479]]

transactions; directed \44\ versus non-directed orders; \45\ pricing by 
market participant; \46\ Payment for Order Flow \47\ and fee caps.\48\ 
In addition, there are other examples of market segmentation evidenced 
today in fees assessed by other SROs. Similarly, in the area of market 
data various differentiations exist, such as displayed versus non-
displayed quotes/orders,\49\ professional and non-professional user 
data \50\ and proprietary \51\ versus consolidated market data.
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    \29\ Arguably, a uniform fee schedule in which all members pay 
the same fee would also be discriminatory, because it would fail to 
recognize reasoned bases for reflecting in the fees that members pay 
their differing contributions to the quality of the market. It may 
be helpful to understand ``unfair discrimination'' as discrimination 
based on factors other than competition, such as pricing designed to 
exclude or impair a class of participants.
    \30\ Singly Listed Option means an option that is only listed on 
the Exchange and is not listed by any other national securities 
exchange.
    \31\ The Penny Pilot was established in January 2007; and in 
October 2009, it was expanded and extended through December 31, 
2013. See Securities Exchange Act Release Nos. 55153 (January 23, 
2007), 72 FR 4553 (January 31, 2007) (SR-Phlx-2006-74) (notice of 
filing and approval order establishing Penny Pilot); 60873 (October 
23, 2009), 74 FR 56675 (November 2, 2009) (SR-Phlx-2009-91) (notice 
of filing and immediate effectiveness expanding and extending Penny 
Pilot); 60966 (November 9, 2009), 74 FR 59331 (November 17, 2009) 
(SR-Phlx-2009-94) (notice of filing and immediate effectiveness 
adding seventy-five classes to Penny Pilot); 61454 (February 1, 
2010), 75 FR 6233 (February 8, 2010) (SR-Phlx-2010-12) (notice of 
filing and immediate effectiveness adding seventy-five classes to 
Penny Pilot); 62028 (May 4, 2010), 75 FR 25890 (May 10, 2010) (SR-
Phlx-2010-65) (notice of filing and immediate effectiveness adding 
seventy-five classes to Penny Pilot); 62616 (July 30, 2010), 75 FR 
47664 (August 6, 2010) (SR-Phlx-2010-103) (notice of filing and 
immediate effectiveness adding seventy-five classes to Penny Pilot); 
63395 (November 30, 2010), 75 FR 76062 (December 7, 2010) (SR-Phlx-
2010-167) (notice of filing and immediate effectiveness extending 
the Penny Pilot); 65976 (December 15, 2011), 76 FR 79247 (December 
21, 2011) (SR-Phlx-2011-172) (notice of filing and immediate 
effectiveness extending the Penny Pilot); 67326 (June 29, 2012), 77 
FR 40126 (July 6, 2012) (SR-Phlx-2012-86) (notice of filing and 
immediate effectiveness extending the Penny Pilot); 68534 (December 
21, 2012), 77 FR 77174 (December 31, 2012) (notice of filing and 
immediate effectiveness extending the Penny Pilot); and 69786 (June 
18, 2013), 78 FR 37863 (June 24, 2013) (SR-Phlx-2013-64) (notice of 
filing and immediate effectiveness extending the Penny Pilot). See 
also Exchange Rule 1034.
    \32\ See Phlx's Pricing Schedule, NOM Pricing at Chapter IV, 
Section 2, ISE's Fee Schedule, CBOE's Fees Schedule, NYSE MKT's Fee 
Schedule, BATS BZX's Fee Schedule, MIAX's Fee Schedule, Gemini's Fee 
Schedule and NYSE Arca's Fee Schedule.
    \33\ Non-Penny Pilot refers to options classes not in the Penny 
Pilot.
    \34\ The Exchange has Rules in place which govern the submission 
of Orders in an open outcry market for execution. See Exchange Rules 
110, 155, 1000, 1014, 1033, 1060, 1063, 1064, 1066, 1080 and Options 
Floor Procedure Advices C-1, C-2, C-3, F-2 and F-14. See also NYSE 
MKT and NYSE ARCA's Fee Schedule.
    \35\ Electronically delivered orders do not include orders 
delivered through the Floor Broker Management System.
    \36\ See Section B of the Phlx Pricing Schedule.
    \37\ See Section II of the Phlx Pricing Schedule, CBOE's Fee 
Schedule, NYSE Arca's Fee Schedule and NYSE MKT's Fee Schedule.
    \38\ A Complex Order is any order involving the simultaneous 
purchase and/or sale of two or more different options series in the 
same underlying security, priced at a net debit or credit based on 
the relative prices of the individual components, for the same 
account, for the purpose of executing a particular investment 
strategy. Furthermore, a Complex Order can also be a stock-option 
order, which is an order to buy or sell a stated number of units of 
an underlying stock or exchange-traded fund (``ETF'') coupled with 
the purchase or sale of options contract(s). See Exchange Rule 1080, 
Commentary .08(a)(i). See also Section I of the Exchange's Pricing 
Schedule. See also CBOE's Fees Schedule, ISE's Fee Schedule, NYSE 
Arca's Fee Schedule, C2's Fee Schedule and NYSE MKT's Fee Schedule.
    \39\ PIXL is the Exchange's price improvement mechanism known as 
Price Improvement XL or (PIXLSM). See Rule 1080(n). A 
member may electronically submit for execution an order it 
represents as agent on behalf of a public customer, broker-dealer, 
or any other entity (``PIXL Order'') against principal interest or 
against any other order (except as provided in Rule 1080(n)(i)(E)) 
it represents as agent (``Initiating Order'') provided it submits 
the PIXL order for electronic execution into the PIXL Auction 
(``Auction'') pursuant to Rule 1080. See Exchange Rule 1080(n). COLA 
is the automated Complex Order Live Auction process. A COLA may take 
place upon identification of the existence of a COLA-eligible order 
either: (1) Following a COOP, or (2) during normal trading if the 
Phlx XL system receives a Complex Order that improves the cPBBO. See 
Exchange Rule 1080. See also CBOE's Fees Schedule and ISE's Fee 
Schedule.
    \40\ See Phlx's Pricing Schedule, CBOE's Fees Schedule, ISE's 
Fee Schedule, NYSE Arca' Fees Schedule and BATS BZX's Fee Schedule.
    \41\ See Exchange Rule 1017. See also Section II of the 
Exchange's Pricing Schedule.
    \42\ For example, a Qualified Contingent Cross (``QCC'') Order, 
which is an order comprised of an order to buy or sell at least 1000 
contracts that is identified as being part of a qualified contingent 
trade, as that term is defined in Rule 1080(o)(3), coupled with a 
contra-side order to buy or sell an equal number of contracts, has 
different pricing compared to other types of order types. See 
Section II of the Exchange's Pricing Schedule.
    \43\ See Exchange Rule 1064. The Exchange offers certain fee 
waivers for floor facilitation transactions at Section II of the 
Exchange's Pricing Schedule. See also NYSE MKT's Fee Schedule.
    \44\ An order that is ``directed'' is one that is directed by an 
Order Flow Provider to a specific Market Maker or Specialist when 
that order is entered electronically into PHLX XL II. The term 
``Order Flow Provider'' means any member or member organization that 
submits, as agent, orders to the Exchange. See Rule 1080(l)(i)(B).
    \45\ See NYSE MKT's Fee Schedule and CBOE's Fees Schedule. Phlx 
also previously differentiated pricing on the basis of whether the 
order was directed.
    \46\ All options exchanges distinguish pricing by market 
participant.
    \47\ The Payment for Order Flow (``PFOF'') Program assesses fees 
to Specialists and Market Makers resulting from Customer orders 
(``PFOF Fees''). The PFOF fees are available to be disbursed by the 
Exchange according to the instructions of the Specialist or Market 
Maker to order flow providers that are members or member 
organizations that submit, as agent, Customer orders to the Exchange 
through a member or member organization that is acting as agent for 
those customer orders. Any excess PFOF funds billed but not utilized 
by the Specialist or Market Maker are carried forward unless the 
Specialist or Market Maker elects to have those funds rebated on a 
pro rata basis, reflected as a credit on the monthly invoices. At 
the end of each calendar quarter, the Exchange calculates the amount 
of excess funds from the previous quarter and subsequently rebates 
excess funds on a pro-rata basis to the applicable Specialist or 
Market Maker that paid into that pool of funds. There are no Payment 
for Order Flow Fees on trades that are not delivered electronically. 
See Phlx's Pricing Schedule and CBOE's Fees Schedule.
    \48\ Today the Exchange has in place a fee cap for Specialists 
and Market Makers (``Monthly Market Maker Cap'') of $550,000 for: 
(i) Electronic and floor Option Transaction Charges; (ii) QCC 
Transaction Fees (as defined in Exchange Rule 1080(o)) and Floor QCC 
Orders, as defined in 1064(e)); and (iii) fees related to an order 
or quote that is contra to a PIXL Order or specifically responding 
to a PIXL auction. Also, the Exchange caps Firms up to a maximum fee 
of $75,000 (``Monthly Firm Fee Cap''). See Section II of the 
Exchange's Pricing Schedule. See also NYSE Arca's Fee Schedule (Firm 
and Broker-Dealer open outcry executions are capped).
    \49\ See Nasdaq Rule 7018.
    \50\ See Nasdaq Rule 7026.
    \51\ See Nasdaq Rule 7039.
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    In light of this wide-ranging degree of differentiation, the 
Exchange submits that its proposal does not materially alter the degree 
of differential pricing among Phlx market participants. Just as the 
foregoing pricing differentials exist to encourage and reward market 
participants for making order flow and other purchasing decisions that 
benefit the Exchange, its market structure, and/or other market 
participants, likewise the proposed rule change serves to incentivize 
order routing decisions with respect to Customer orders that benefit 
the Exchange and its participants. With this proposal, members are not 
required to transact any volume on other options exchanges. In fact, 
the more volume they transact on Phlx, the greater the reward, as only 
qualifying Customer orders executed on Phlx are entitled to the rebate. 
However, the proposal does not discriminate against members that choose 
to direct orders to other options markets. By way of example, the 
proposal is structured so that the maximum benefit occurs for market 
participants who execute 2.5% or more of national customer volume and 
are able to execute it all on Phlx. Such a participant would receive an 
additional $0.02 per contract rebate for all its eligible volume 
transacted on Phlx. If a market participant believes that it would 
better meet its best execution obligation to a Customer by displaying 
orders on a market with a different fee or market structure, such as 
NOM, the participant can do so and will not receive the additional 
$0.02 per contract rebate for any execution that results on NOM, but 
would still be able to benefit from those NOM Customer orders by 
receiving a rebate on Customer orders executed on Phlx which may 
qualify for an enhanced rebate. Thus, the participant is not penalized 
from an eligibility standpoint by its incidental usage of NOM or BX 
Options.\52\
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    \52\ Of course, volume on exchanges other than Phlx, NOM, and BX 
Options would not qualify. The Exchange believes that it is not 
unfairly discriminatory to recognize volume on its affiliates but 
not other exchanges. Specifically, volume on NOM and BX Options 
benefits Phlx by contributing to the overall financial well-being of 
the exchange group of which Phlx is a part. It is reasonable, 
equitable and not unfairly discriminatory to lower costs for market 
participants transacting orders on Phlx by offering these market 
participants the ability to qualify for lower pricing realized by 
leveraging NASDAQ OMX's various options exchange offerings that are 
available to market participants to provide greater flexibility to 
market participants desiring to transact orders on NOM and BX 
Options. Requiring Phlx to provide favorable pricing to member 
organizations that meet the 2.5% volume requirement by directing 
orders to, for example, CBOE would make as little sense as 
stipulating that a member organization could meet existing Phlx 
tiers by executing orders on CBOE. Phlx submits that the Act does 
not require such an illogical result. Moreover, as discussed in more 
detail below, the Phlx proposal does not tie the use of Phlx to NOM 
or BX Options, because usage of those exchanges is not required, and 
in any event, reduces the aggregate rebate paid by Phlx. Moreover, 
because Phlx lacks market power, it cannot in any event use the 
proposal to extend market power to its affiliates. Finally, Customer 
orders which are executed on NOM and BX Options will continue to 
benefit the market participants on those markets because that order 
flow will provide liquidity to NOM and BX Options respectively and 
participants on those markets may interact with that order flow.
---------------------------------------------------------------------------

    If all of the participant's Customer volume was transacted solely 
on NOM, then the market participant would not receive a Phlx rebate, 
which is not surprising, since it is not bringing order flow to Phlx; 
it would, however, still be eligible for any rebate that is offered on 
NOM. Thus, a participant transacting volume on NOM is in no worse 
position with the proposal. Today, a NOM Participant that transacted a 
large amount of volume on NOM to benefit from the rebate structure 
offered on that market would only receive rebates on Phlx for those 
orders transacted on Phlx. With this proposal, the NOM Participant 
still benefits from the current NOM pricing without change, but will 
have the added benefit of possibly qualifying for a rebate on Phlx for 
any orders that were transacted on Phlx. Because the benefit only 
attributes to orders on Phlx, as is the case today, there is no change 
in circumstance for the NOM Participant. In fact, the NOM Participant 
that necessarily had Customer orders routed to Phlx because that market 
was at the best price, with this proposal may receive an added benefit 
on Phlx by qualifying for a rebate on that market because of the 
Customer orders transacted on NOM. Moreover, as discussed above, the 
Commission stated that ``a proposed exchange rule must stand or fall 
based, among other things, on the interests of customers, issuers, 
broker-dealers, and other persons using the facilities of that 
exchange.'' \53\
---------------------------------------------------------------------------

    \53\ ArcaBook Order, 73 FR at 74793.
---------------------------------------------------------------------------

    In this instance, the proposal is unambiguously beneficial to Phlx 
market participants, whether or not they receive the enhanced rebate. 
With respect to two members transacting orders on Phlx, the proposal is 
not materially different from current differentiations. Today, the 
Exchange assesses different fees and pays different rebates to two Phlx 
members that transact the same number of Customer orders on the 
Exchange, if one Exchange member transacted those orders on the 
Exchange floor and the other member transacted those orders 
electronically. Only the electronic Customer orders would potentially 
qualify for a Customer rebate pursuant to Section B of the Pricing 
Schedule. Also, only certain types of orders in Categories A and B 
qualify for the Customer Rebate today, so depending on the types of 
electronic orders transacted by a Phlx member, one member may qualify 
for a Customer rebate while another member with the same number of 
Customer orders may not qualify for a rebate. Finally, two members on 
Phlx may transact Customer orders today, but

[[Page 69480]]

depending on the number of qualifying Customer orders, one member may 
qualify for Customer Rebate Tier 1 and the other member may qualify for 
Customer Rebate Tier 2. In this scenario, Tier 1 does not pay a rebate 
and Tier 2 of the Section B Customer Rebate Program does pay a rebate; 
therefore one member would receive a rebate while another member would 
not receive a rebate, due to differences in volume. In other words, the 
proposed enhanced rebate does not create a pricing differential as 
between two Phlx members that is different from differentials that 
exist today. The proposal would differentiate market participants based 
on the volume of qualifying Customer orders that are transacted on 
Phlx, and that is already the case today with the existing Customer 
rebate tiers as well as other pricing.
The Proposal is Similar to Other SRO Rules
    The Commission already permits a particular trading venue to 
consider volume executed away from that venue for fee calculation 
purposes. For example, under NOM's pricing schedule, participants that 
add (1) Customer and/or Professional liquidity of 25,000 or more 
contracts per day in a month on NOM, (2) qualify for the Investor 
Support Program set forth in Rule 7014 with respect to NASDAQ's cash 
equity market, and (3) execute at least one order on NASDAQ's cash 
equity market, qualify for a Tier 5 Customer and/or Professional rebate 
on NOM.\54\ Thus, NOM's rebate permits a NOM Participant to qualify for 
an options rebate based on its activity in both options and cash 
equities markets. Another example of a fee imposed by exchanges that 
considers volume on other exchanges is the options regulatory fee or 
``ORF,'' which is assessed by many options exchanges.\55\ ORF is 
assessed on all transactions by member firms of an options exchange 
that are cleared in the customer range at The Options Clearing 
Corporation (``OCC'').\56\ For example, if an OCC clearing member, ABC, 
is a member of Phlx, ABC pays ORF on all executed and cleared customer 
transactions regardless of where the trade executed. The ORF structure 
is not dependent on a transaction on a particular SRO; rather, it is 
based on transactions at other SROs.
---------------------------------------------------------------------------

    \54\ See NOM Rules at Chapter XV, Section 2.
    \55\ Today ORF is assessed by PHLX, NOM, CBOE, ISE, NYSE Arca, 
NYSE MKT, BOX Options Exchange LLC, MIAX, C2 and Gemini.
    \56\ ORF is also assessed on transactions executed at an options 
exchange by that options exchange.
---------------------------------------------------------------------------

    There are also examples where qualifying volume is quantified in a 
different manner from the payment of a rebate. For example, Phlx 
members may qualify for a Customer rebate by including SPY volume in 
the calculation of qualifying orders for the purpose of calculating 
Customer rebate tiers, but Phlx does not pay Customer rebates on SPY 
volume as specified in the Customer Rebate Program.\57\ Volume other 
than the volume on which the rebate is paid is considered for 
eligibility.
---------------------------------------------------------------------------

    \57\ See Section B of the Exchange's Pricing Schedule.
---------------------------------------------------------------------------

    Equally important, offering discounts between affiliated exchanges 
is not novel. New York Stock Exchange LLC (``NYSE'') waives certain 
annual fees for issuers that transfer the listing of their primary 
class of common shares from NYSE Arca, Inc. (``NYSE Arca''), or NYSE 
MKT LLC (``NYSE MKT''), to NYSE (``NYSE Listing Incentive'').\58\ The 
Exchange assesses issuers an Initial Application Fee of $25,000 in 
connection with applying to list an equity security except that, among 
other things, the fee is waived if an issuer transfers a listing of any 
class of equity security from another national securities exchange.\59\ 
In a similar manner, this proposed rule change is premised on the 
principle that, in its efforts to provide greater competitive 
incentives, Phlx should be permitted to consider activity on other 
exchanges, given the need for member organizations to spread their 
Customer order flow across multiple exchanges in an effort to improve 
execution quality and reduce trading costs.
---------------------------------------------------------------------------

    \58\ See NYSE Rules at Section 902.3.
    \59\ Id.
---------------------------------------------------------------------------

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. As described above in 
considerable detail, the Exchange operates in a highly competitive 
market; in order to remain competitive the Exchange must offer market 
participants an attractive trading platform, customer service and 
effective management tools in addition to competitive fees and 
liquidity rebates to attract order flow to the market. It is the 
competitive forces present among options exchanges that constrain the 
Exchange's pricing by commanding pricing that is reasonable, equitable, 
fair and not unreasonably discriminatory if the Exchange hopes to 
attract order flow. The Exchange believes that its proposed pricing 
will not harm competition but rather will benefit market participants 
by lowering costs. Fundamentally, the proposal is a price reduction, 
and therefore is consistent with achieving the benefits of the robust 
competition that clearly exists in this market.
    As discussed above, the ArcaBook Order stated that ``the Exchange 
Act precludes anti-competitive tying . . . of separately registered 
national securities exchanges even if they are under common control.'' 
\60\ However, the proposal neither constitutes tying, nor is it anti-
competitive in nature of effect. Tying is ``an agreement by a party to 
sell one product [the tying product] but only on the condition that the 
buyer also purchases a different (or tied) product, or at least agrees 
that he will not purchase that product from any other supplier.'' \61\ 
Accordingly, a tying arrangement exists only where there is a 
requirement that two separate products be purchased together.\62\ Thus, 
for example, if a supplier offers two separate products together in a 
bundle, there is no tying arrangement if the supplier also offers each 
product for purchase separately. This is true even if the supplier 
offers a discount for purchasing the bundle of products (which, 
obviously, is a commonplace offering found in all sorts of 
industries).\63\ ``[W]here the buyer is free to take either product by 
itself[,] there is no tying problem even though the seller may also 
offer the two items as a unit at a single price.'' \64\
---------------------------------------------------------------------------

    \60\ ArcaBook Order, 73 FR at 74790.
    \61\ N. Pac. Ry. Co. v. United States, 356 U.S. 1, 5-6 (1958).
    \62\ See, e.g., Paladin Assocs. v. Mont. Power Co., 328 F.3d 
1145, 1159 (9th Cir. 2003) (``Essential to . . . a tying claim is 
proof that the seller coerced a buyer to purchase the tied 
product.'').
    \63\ See, e.g., Warren Gen. Hosp. v. Amgen Inc., 2010 U.S. Dist. 
LEXIS 56220, at *2-3, *21-22 (D.N.J. June 7, 2010) (a ``pricing and 
rebate scheme'' that applies only when the buyer purchases both of 
the defendants' products is not a tie because the buyer may purchase 
either product by itself).
    \64\ N. Pac. Ry. Co., 356 U.S. at 6 n.4; accord Jefferson Parish 
Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12 (1984).
---------------------------------------------------------------------------

    Even where there is a tying arrangement, such arrangements are not 
always (or even usually) unlawful. As the Supreme Court has explained, 
``[i]t is clear . . . that not every refusal to sell two products 
separately can be said to restrain competition . . . . Buyers often 
find package sales attractive; a seller's decision to offer such 
packages can merely be an attempt to compete effectively.'' \65\ 
Indeed, the judicial

[[Page 69481]]

skepticism of tying arrangements that prevailed decades ago has given 
way to a general recognition that tying arrangements are often 
procompetitive and beneficial to consumers and competition, and that 
they therefore are not anticompetitive in most circumstances. For 
example, in 2006, a unanimous Supreme Court explained that ``[o]ver the 
years, this Court's strong disapproval of tying arrangements has 
substantially diminished.'' \66\ Accordingly, absent proof that a tying 
arrangement creates foreclosure in the tied product market, the 
antitrust laws do not condemn tying arrangements.\67\
---------------------------------------------------------------------------

    \65\ Jefferson Parish, 466 U.S. at 11-12.
    \66\ Ill. Tool Works v. Indep. Ink, Inc., 547 U.S. 28, 35 
(2006).
    \67\ See, e.g., id.; Jefferson Parish, 466 U.S. at 13-14, 16.
---------------------------------------------------------------------------

    Because a tying arrangement can only run afoul of the antitrust 
laws where the arrangement harms competition by creating foreclosure in 
the tied product market, the Supreme Court has stated that ``in all 
cases involving a tying arrangement, the plaintiff must prove that the 
defendant has market power in the tying product.'' \68\ This 
requirement makes good sense when considering the economic impact of a 
tying arrangement. If a supplier lacking market power attempts to 
condition the purchase of one product (the tying product) on the 
purchase of a second, unwanted product (the tied product), the 
supplier's customers will simply go elsewhere. There is no conceivable 
harm to competition in this scenario--the misguided supplier will 
simply lose business to its competitors. And, conversely, if customers 
desire the bundled offering--such that they buy the bundled products 
even when they are not forced to do so--that is a procompetitive 
outcome that benefits consumers, which is not condemned by the 
antitrust laws. It is only when the supplier has market power over the 
tying product that it can force customers to take the unwanted product 
and distort competition in the sale of the tied product, and it is 
therefore only in those circumstances that tying arrangements can 
violate the antitrust laws.\69\
---------------------------------------------------------------------------

    \68\ Ill. Tool, 547 U.S. at 46; see also Jefferson Parish, 466 
U.S. at 13-14 (``we have condemned tying arrangements when the 
seller has some special ability--usually called `market power'--to 
force a purchaser to do something that he would not do in a 
competitive market'').
    \69\ See Jefferson Parish, 466 U.S. at 13-14.
---------------------------------------------------------------------------

    As discussed above, empirical evidence demonstrates that the 
options market is a highly competitive market in which no exchange has 
market power sufficient to raise prices for competitively-traded 
options in an unreasonable or unfairly discriminatory manner in 
violation of the Exchange Act. Moreover, this proposal is not tying in 
any event, because (a) members may trade on any exchange, without 
having to trade on another exchange (i.e., nothing is tied together), 
and (b) Phlx members can qualify for the offered rebate without even 
using another NASDAQ OMX exchange. The proposed rebate simply makes it 
easier for members to reach the Phlx rebate levels if they trade on 
another NASDAQ OMX exchange, but there is no requirement to do so. 
Historically Phlx market participants have transacted greater than 2.5% 
of Customer volume solely on Phlx. Thus, if the Commission accepts the 
compelling logic of the antitrust precedents discussed above, it is 
clear that the proposal could not be used in an anticompetitive manner 
to force unwilling market participants to conduct transactions on NOM 
or BX Options. Rather, as discussed extensively above, the proposal 
incentivizes market participants to execute as many Customer orders on 
Phlx as possible by reducing fees--an inherently pro-competitive 
result--without penalizing them for incidental usage of the other 
NASDAQ OMX exchanges. If the Commission nevertheless concludes that the 
proposal is inconsistent with the Act because it constitutes anti-
competitive tying, Phlx believes that it must, as a minimum, 
demonstrate why the proposal is anti-competitive in effect when similar 
pricing incentives are viewed as pro-competitive under the antitrust 
laws. Put another way, if the Commission concludes that a pricing 
decrease adopted in a highly competitive market is per se 
anticompetitive merely because of its cross-market aspect, it must 
explain why this conclusion differs so dramatically from the analysis 
in established Supreme Court precedents.
    The NASDAQ OMX exchanges offer complementary models that members 
and investors demand, and this proposal seeks to provide an opportunity 
for market participants to benefit from those complementary services. 
The Exchange competes for order flow by enhancing its technology and 
the array of services offered on its market, as well as offering 
rebates and assessing lower fees. Today, Phlx, NOM and BX Options offer 
market participants an array of services including state-of-the-art 
platforms. Phlx's trading platform executes orders utilizing a Customer 
priority, pro-rata execution algorithm. Phlx accepts Complex Orders 
\70\ and QCC Orders and offers auctions for both Simple and Complex 
Orders.\71\ Phlx also has robust options listings on its market, 
including index listing and various Singly Listed products. Today, Phlx 
lists 3,660 options contracts as compared to NOM which lists 2,411 
options contracts and BX Options which lists 1,145 options contracts. 
NOM's trading platform executes orders utilizing a price time execution 
algorithm. NOM does not accept Complex Orders or QCC Orders and does 
not offer auctions. BX Options' trading platform executes orders 
utilizing a price time execution algorithm. Similar to NOM, BX Options 
does not accept Complex Orders or QCC Orders and does not offer 
auctions. For example, a market participant that transacts a Complex 
Order cannot do so on NOM or BX Options or certain other options 
exchanges for that matter. Thus, the proposal will ensure that the 
range of a member organization's business across these markets is 
considered for eligibility purposes.
---------------------------------------------------------------------------

    \70\ A Complex Order is any order involving the simultaneous 
purchase and/or sale of two or more different options series in the 
same underlying security, priced at a net debit or credit based on 
the relative prices of the individual components, for the same 
account, for the purpose of executing a particular investment 
strategy. Furthermore, a Complex Order can also be a stock-option 
order, which is an order to buy or sell a stated number of units of 
an underlying stock or exchange-traded fund (``ETF'') coupled with 
the purchase or sale of options contract(s). See Exchange Rule 1080, 
Commentary .08(a)(i).
    \71\ COLA is the automated Complex Order Live Auction process. A 
COLA may take place upon identification of the existence of a COLA-
eligible order either: (1) following a COOP, or (2) during normal 
trading if the Phlx XL system receives a Complex Order that improves 
the cPBBO. See Exchange Rule 1080.
---------------------------------------------------------------------------

    The Exchange also does not believe that the proposal imposes a 
burden on competition with respect to Phlx members' status as members 
of NOM and/or BX Options. If a market participant believes that it 
would better meet its best execution obligation to a Customer by 
displaying orders on a market with a different fee structure, such as 
NOM, the participant can chose to take advantage of NOM's pricing 
structure instead. The market participant would not receive the 
additional $0.02 per contract rebate for any execution that results, 
but would still be able to benefit from those orders, which would be 
aggregated with qualifying Customer volume on Phlx and BX Options for 
purposes of determining if the member qualified for a rebate on Phlx. 
If all the volume was transacted solely on NOM, then that market 
participant would still be eligible for any rebate that is offered on

[[Page 69482]]

NOM today. The Exchange does not believe that a participant transacting 
volume on NOM is in any worse of a position with this proposal. 
Further, NOM and BX Options members benefit from the pricing structures 
available to them on those markets.\72\
---------------------------------------------------------------------------

    \72\ NOM offers Customers rebates. See Chapter XV, Section 2(1).
---------------------------------------------------------------------------

    The Exchange further believes that its proposal does not impact 
established pricing differentials among NASDAQ OMX exchanges; rather, 
it enhances equality among market participants transacting orders on 
different NASDAQ OMX exchanges. The NOM Participant who is also a Phlx 
member would be given an opportunity to earn a rebate on Phlx similar 
to the current Phlx member. The same is true of a BX Options member who 
is also a member on Phlx. If these market participants do not have a 
membership on Phlx, then they transact no orders on Phlx today and 
therefore would not be able to take advantage of the rebate because 
these rebates would only apply to orders transacted on Phlx. The same 
is true of any Phlx pricing proposal. The NOM or BX Options member that 
does not choose to be a Phlx member is not able to take advantage of 
any Phlx pricing, including this proposal, because it has not expended 
the effort to become a Phlx member, but it is free to do so at any 
time. Moreover, Phlx's proposal ``must stand or fall, based, among 
other things, on the interests of . . . persons using the facilities of 
[Phlx].\73\
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    \73\ ArcaBook Order, 73 FR at 74793-74794.
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    Fundamentally, this proposal offers market participants a price 
decrease, the essence of competition. Price differentiation exists in 
the options markets today, as noted in the various examples provided 
above. These types of differentiation have not been seen as 
anticompetitive. There is no evidence to support a conclusion that 
competition would be harmed with the implementation of this proposal. 
Competitors could replicate the rebate that is being offered by Phlx, 
and to the extent that a competitor does not operate multiple 
exchanges, the desired discount could be offered on the sole market to 
achieve the same lower cost. Moreover, other options exchanges operate 
multiple markets, with different functionality and pricing being 
offered at the different markets, and there are no significant barriers 
to entry of additional options exchanges. For example, the 
International Stock Exchange LLC (``ISE'') recently launched a second 
options exchange, Topaz Exchange, LLC (``Gemini''), the twelfth options 
exchange today. New market entrants today offer incentivized pricing to 
bring order flow to that market. Miami International Securities 
Exchange LLC (``MIAX''), a recent options market entrant, waived 
transaction fees that apply to marker makers from June 3, 2013 through 
August 31, 2013.\74\ In its filing, MIAX stated that:
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    \74\ See Securities Exchange Act Release No. 70069 (July 30, 
2013), 78 FR 47457 (August 5, 2013) (SR-MIAX-2013-36).

[t]he fee waiver is designed to both enhance the Exchange's 
competitiveness with other options exchanges and to strengthen its 
market quality. The Exchange believes that the fee waiver increases 
both intermarket and intramarket competition by incenting market 
participants and market makers on other exchanges to register as 
Market Makers on the Exchange. In addition, the Exchange believes 
that waiving transaction fees for Market Makers registered on the 
Exchange promotes tighter bid-ask spreads by Market Makers, and 
increases the volume of transactions in order to allow the Exchange 
to compete more effectively with other options exchanges for such 
transactions. The Exchange notes that the Exchange's daily 
percentage of the total market volume in MIAX listed options has 
increased since the beginning of the fee waiver--indicating that the 
fee waiver has enabled the Exchange to compete more effectively with 
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other options exchanges for such transactions.\75\

    \75\ Id.

    Similarly, Phlx believes that its proposal promotes further 
vigorous, healthy and appropriate competition, and will lead other 
options exchanges to follow suit by offering higher rebates to attract 
order flow. The interests of all investors are furthered by the 
lowering of prices as a result of robust competition.
    In sum, the Exchange believes that the proposed rule change will 
promote competition through a price reduction that enhances Phlx's 
competitiveness but to which other markets may respond in kind. The 
Exchange believes that the proposed change would increase both 
intermarket and intramarket competition by providing market 
participants a different option to consider when they decide which 
exchange provides the most attractive destination for directing order 
flow. Moreover, the proposal to offer the rebate does not constitute a 
tying arrangement under directly relevant judicial precedent. The 
Exchange believes that the proposed rebate would enable market 
participants to lower costs and incent them to provide additional 
liquidity at the Exchange, thereby enhancing the quality of its markets 
and increasing the volume of Customer contracts traded on Phlx. To the 
extent that this purpose is achieved, all the Exchange's market 
participants should benefit from the improved market liquidity.
    Given the robust competition for volume among options markets, many 
of which offer the same products, attracting order flow by offering 
rebates is consistent with the pro-competitive goals of the Act. The 
Exchange does not believe that the enhanced rebate could cause any 
competitive harm to the options market or to market participants, 
because no exchange has market power sufficient to raise prices for 
competitively-traded options in an unreasonable or unfairly 
discriminatory manner in violation of the Exchange Act.

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

    No written comments were either solicited or 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.\76\ 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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    \76\ 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 email to [email protected]. Please include 
File Number SR-Phlx-2013-113 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission,

[[Page 69483]]

100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-Phlx-2013-113. This file 
number should be included on the subject line if email 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 
10:00 a.m. and 3:00 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-2013-113 and should be 
submitted on or before December 10, 2013.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\77\
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    \77\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-27632 Filed 11-18-13; 8:45 am]
BILLING CODE 8011-01-P