[Federal Register Volume 79, Number 30 (Thursday, February 13, 2014)]
[Notices]
[Pages 8763-8769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03121]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71507; File No. SR-NASDAQ-2014-011]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Modify Fees for NASDAQ Basic

February 7, 2014.
    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 January 27, 2014, The NASDAQ Stock Market LLC (``NASDAQ'' or the 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') a 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

    NASDAQ is proposing modify fees for the NASDAQ Basic data product. 
The proposal, which modifies monthly fees, is effective for the month 
of January 2014 and subsequent months. The text of the proposed rule 
change is available on the Exchange's Web site at http://nasdaq.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 self-regulatory organization 
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 those 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 parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    NASDAQ Basic is a proprietary data product that provides best bid 
and offer information from the NASDAQ Market Center and last sale 
transaction reports from the NASDAQ Market Center and from the FINRA/
NASDAQ Trade Reporting Facility (``FINRA/NASDAQ TRF''). As such, NASDAQ 
Basic provides a subset of the ``core'' quotation and last sale data 
provided by securities information processors (``SIPs'') under the CQ/
CT Plan and the NASDAQ UTP Plan. In this filing, NASDAQ is proposing to 
(i) increase the Subscriber fees charged with respect to 
``Professional'' Subscribers to the product, for the first time since 
the introduction of the product in 2009, (ii) introduce a new 
enterprise license for Professional Subscribers; and (iii) add rules to 
allow ``netting,'' in certain instances, by Subscribers with multiple 
means of access to NASDAQ Basic, in order to reduce the total number of 
Subscribers for which a fee will be charged.
    NASDAQ Basic contains three separate components, which may be 
purchased individually or in combination: (i) NASDAQ Basic for NASDAQ, 
which contains the best bid and offer on the NASDAQ Market Center and 
last sale transaction reports for NASDAQ and the FINRA/NASDAQ TRF for 
NASDAQ-listed stocks, (ii) NASDAQ Basic for NYSE, which covers NYSE-
listed stocks, and (iii) NASDAQ Basic for NYSE MKT, which covers stocks 
listed on NYSE MKT and other listing venues whose quotes and trade 
reports are disseminated on Tape B.\3\
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    \3\ NASDAQ is modifying the text of Rule 7047 to make it clear 
that NASDAQ Basic for NYSE MKT includes information for all Tape B 
listing venues and to use consistent terminology to describe the 
three data elements of NASDAQ Basic throughout the rule.
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    The fee structure for NASDAQ Basic features a fee for Professional 
Subscribers and a reduced fee for Non-Professional Subscribers.\4\ The 
current

[[Page 8764]]

monthly fees for Non-Professional Subscribers, which are not being 
modified, are $0.50 per Subscriber for NASDAQ Basic for NASDAQ, $0.25 
per Subscriber for NASDAQ Basic for NYSE, and $0.25 per Subscriber for 
NASDAQ Basic for NYSE MKT. The current monthly fees for Professional 
Subscribers are $10 per Subscriber for NASDAQ Basic for NASDAQ, $5 per 
Subscriber for NASDAQ Basic for NYSE, and $5 per Subscriber for NASDAQ 
Basic for NYSE MKT. As discussed in more detail below, NASDAQ is 
proposing to increase the Professional Subscriber fees to $13, $6.50, 
and $6.50, respectively. For use cases that do not require a monthly 
subscription for unlimited usage, there is a Per Query option, with a 
fee of $0.0025 for NASDAQ Basic for NASDAQ, $0.0015 for NASDAQ Basic 
for NYSE, and $0.0015 for NASDAQ Basic for NYSE MKT.
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    \4\ A ``Non-Professional Subscriber'' is ``a natural person who 
is not (i) registered or qualified in any capacity with the 
Commission, the Commodity Futures Trading Commission, any state 
securities agency, any securities exchange or association, or any 
commodities or futures contract market or association; (ii) engaged 
as an ``investment adviser'' as that term is defined in Section 
201(11) of the Investment Advisers Act of 1940 (whether or not 
registered or qualified under that Act); or (iii) employed by a bank 
or other organization exempt from registration under federal or 
state securities laws to perform functions that would require 
registration or qualification if such functions were performed for 
an organization not so exempt.'' A ``Professional Subscriber'' is 
``any Subscriber other than a Non-Professional Subscriber.'' 
Although these definitions are currently applicable to Rule 7047 
through incorporation by reference, NASDAQ is adding them directly 
to the rule to enhance its clarity.
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    Distributors \5\ of NASDAQ Basic may also be assessed a monthly 
Distributor Fee. The fee is $1,500 per month for either internal or 
external distribution; however, a credit for Subscriber or Per Query 
fees may be applied against the Distributor Fee at the Distributor's 
request.
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    \5\ The definition of the term ``Distributor'' is being added 
directly to Rule 7047 to enhance the rule's clarity. The term 
``refers to any entity that receives NASDAQ Basic data directly from 
NASDAQ or indirectly through another entity and then distributes it 
to one or more Subscribers.'' Distributors may either be ``Internal 
Distributors'', which are ``Distributors that receive NASDAQ Basic 
data and then distribute that data to one or more Subscribers within 
the Distributor's own entity,'' or ``External Distributors'', which 
are ``Distributors that receive NASDAQ Basic data and then 
distribute that data to one or more Subscribers outside the 
Distributor's own entity.''
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    As an alternative to monthly Subscriber fees for Non-Professional 
Subscribers, NASDAQ also offers an enterprise license under which a 
broker-dealer may distribute NASDAQ Basic to an unlimited number of 
Non-Professional Subscribers with whom the broker-dealer has a 
brokerage relationship at a rate of $100,000 per month (as well as the 
applicable monthly Distributor fee). In addition, a Distributor of data 
derived from NASDAQ Basic (but not NASDAQ Basic itself) may pay a fee 
of $1,500 per month (plus the applicable monthly Distributor fee) to 
distribute the derived data to an unlimited number of Non-Professional 
Subscribers. This type of Distributor will typically distribute data to 
a large number of downstream customers through web-based applications.
    The proposed increase in Professional Subscriber fees would 
constitute the first such increase since NASDAQ Basic was introduced in 
2009. Since that time, NASDAQ has continually enhanced the product 
through capacity upgrades, in keeping with increases in demand for the 
product; during this period, the network capacity for NASDAQ Basic has 
increased from a 15 Mb feed to the current 84 Mb feed. Additionally, 
NASDAQ has enhanced the product in numerous respects. These have 
included the addition of messages to indicate the start and end time of 
the NASDAQ Market Center's system day and the end of regular trading 
hours; a new IPO message for NASDAQ-listed securities to relay the 
quotation release time as well as the IPO price to be used for intraday 
net change calculations; an enhanced symbol directory with limit up/
limit down reference price tiers; dissemination of retail liquidity 
identifiers under NASDAQ Rule 4780; market-wide circuit breaker decline 
levels and status information; enhanced sale condition modifiers in 
accordance with changes made to data disseminated by the SIPs; support 
for a 4 a.m. start to NASDAQ's trading day; support for single stock 
trading pauses; latency monitoring; and clearer differentiation between 
NYSE and NYSE MKT trades in the data stream.
    NASDAQ further notes that the professional fees for ``core'' quote 
and last-sale data provided under the NASDAQ UTP Plan were increased, 
effective January 2014, from $20 to $23 per Subscriber per month.\6\ 
Similar fees under the CQ/CT Plans are $24 per subscriber per month for 
securities listed on NYSE MKT and other Tape B securities, and range 
from $20 to $50 per month for NYSE-listed securities. Accordingly, 
NASDAQ believes that the change in NASDAQ Basic fees is also warranted 
as a means of ensuring that the fees for NASDAQ Basic accurately 
reflect the value of NASDAQ Basic data as a subset of ``core'' data 
available from the SIPs, thereby avoiding distortions in demand for 
core data that might result from fees that do not accurately reflect 
NASDAQ Basic's value.
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    \6\ Securities Exchange Act Release No. 70953 (November 27, 
2013), 78 FR 72932 (December 4, 2013) (File No. S7-24-89).
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    However, to mitigate the effect of the fee increase on Distributors 
and Subscribers, NASDAQ is proposing two additional changes. First, 
NASDAQ is proposing to introduce a net reporting option for 
Distributors to reduce the overall number of internal Professional 
Subscribers deemed to be fee liable with respect to ``Display Usage'' 
of NASDAQ Basic.\7\ This option is similar to a net reporting option 
recently introduced under the NASDAQ UTP Plan.\8\ Under the proposed 
netting rules:
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    \7\ As reflected in a new definition being added to Rule 7047, 
``Display Usage'' means ``any method of accessing NASDAQ Basic data 
that involves the display of such data on a screen or other 
visualization mechanism for access or use by a natural person or 
persons.'' Netting does not apply to uses other than Display Usage 
(i.e., use by an automated device without visual access by natural 
persons).
    \8\ Securities Exchange Act Release No. 70953 (November 27, 
2013), 78 FR 72932 (December 4, 2013) (File No. S7-24-89).
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     A Subscriber that receives access to NASDAQ Basic through 
multiple products controlled by an Internal Distributor will be 
considered one Subscriber. Thus, if a broker-dealer acts as a 
Distributor of NASDAQ Basic in multiple forms to its employees, each 
employee would be considered one Subscriber.
     A Subscriber that receives access to NASDAQ Basic through 
multiple products controlled by one External Distributor will be 
considered one Subscriber. Thus, if a broker-dealer arranges for its 
employees to receive access to multiple NASDAQ Basic products provided 
by a single vendor, each employee would be considered one Subscriber.
     A Subscriber that receives access to NASDAQ Basic through 
one or more products controlled by an Internal Distributor and also one 
or more products controlled by one External Distributor will be 
considered one Subscriber. Thus, if the broker-dealer provides 
employees with access through its own product(s) and through products 
from a single vendor, each employee would still be considered one 
Subscriber.
     A Subscriber that receives access to NASDAQ Basic through 
one or more products controlled by an Internal Distributor and also 
products controlled by multiple External Distributors will be treated 
as one Subscriber with respect to the products controlled by the 
Internal Distributor and one of the External Distributors, and will be 
treated as an additional Subscriber for each additional External 
Distributor. Thus, a Subscriber receiving products through

[[Page 8765]]

an Internal Distributor and two External Distributors will be treated 
as two Subscribers. Put another way, access through an Internal 
Distributor may be netted against access through one External 
Distributor, but two External Distributors may not be netted.

Distributors benefitting from net reporting must demonstrate adequate 
internal controls for identifying, monitoring, and reporting all usage. 
The burden will be on the Distributor to demonstrate that particular 
instances of netting are justified.

    Second, NASDAQ is proposing to offer a new enterprise license for 
Professional Subscribers. Under the enterprise license, a broker-dealer 
may distribute NASDAQ Basic for NASDAQ, NASDAQ Basic for NYSE, and 
NASDAQ Basic for NYSE MKT for a flat fee of $365,000 per month; 
provided, however, that if the broker-dealer obtains the license with 
respect to usage of NASDAQ Basic provided by an External Distributor 
that controls display of the product, the fee will be $365,000 per 
month for up to 16,000 internal Professional Subscribers, plus $2 for 
each additional internal Professional Subscriber over 16,000.\9\ Thus, 
given the total proposed modified fee of $26 per Subscriber per month 
for receiving all three components of NASDAQ Basic, the option will 
reduce costs for broker-dealers with more than 14,038 Internal 
Subscribers ($365,000 / $26). A broker-dealer that purchases an 
enterprise license will also be entitled to receive, at no additional 
charge, access to NASDAQ Last Sale (``NLS'') data for its own stock 
price and the stock price of up to ten of its competitors or peers, for 
display use on the broker-dealer's internal Web site. NLS provides, in 
real time, last sale information for stocks listed on NASDAQ, NYSE, and 
other listing venues, as reported by the NASDAQ Market Center or 
reported to the FINRA/NASDAQ TRF.
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    \9\ The $2 fee is necessary to defray additional costs incurred 
by NASDAQ when distributing NASDAQ Basic through an External 
Distributor that controls display of the product, costs which NASDAQ 
would not otherwise be able to recoup under an enterprise license 
arrangement.
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2. Statutory Basis
    NASDAQ believes that the proposed rule change is consistent with 
the provisions of Section 6 of the Act \10\ in general, and with 
Sections 6(b)(4) and (5) of the Act \11\ in particular, in that it 
provides for the equitable allocation of reasonable dues, fees and 
other charges among recipients of NASDAQ data and is not designed to 
permit unfair discrimination between them. In adopting Regulation NMS, 
the Commission granted self-regulatory organizations (``SROs'') and 
broker-dealers (``BDs'') 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. 
NASDAQ believes that its NASDAQ Basic market data product is precisely 
the sort of market data product that the Commission envisioned when it 
adopted Regulation NMS. 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:
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    \10\ 15 U.S.C. 78f.
    \11\ 15 U.S.C. 78f(b)(4), (5).

    [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 their own internal 
analysis of the need for such data.\12\
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    \12\ 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 at all, 
it follows that the price at which such data is sold should be set by 
the market as well. NASDAQ Basic exemplifies the optional nature of 
proprietary data, since, depending on a customer's specific goals, it 
may opt to purchase core SIP data or only the subset provided through 
NASDAQ Basic. Moreover, as discussed in more detail below, the price 
that NASDAQ is able to charge is constrained by the existence of 
substitutes in the form of SIP data and competitive products offered by 
other SROs.
    The decision of the United States Court of Appeals for the District 
of Columbia Circuit in NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 
2010) (``NetCoalition I''), 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.' 
NetCoalition I, at 535 (quoting H.R. Rep. No. 94-229, at 92 (1975), as 
reprinted in 1975 U.S.C.C.A.N. 321, 323). The court agreed with the 
Commission's conclusion that ``Congress intended that `competitive 
forces should dictate the services and practices that constitute the 
U.S. national market system for trading equity securities.' '' \13\
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    \13\ NetCoalition I, at 535.
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    The Court in NetCoalition I, while upholding the Commission's 
conclusion that competitive forces may be relied upon to establish the 
fairness of prices, nevertheless concluded that the record in that case 
did not adequately support the Commission's conclusions as to the 
competitive nature of the market for NYSE Arca's data product at issue 
in that case. As explained below in NASDAQ's Statement on Burden on 
Competition, however, NASDAQ believes that there is substantial 
evidence of competition in the marketplace for data that was not in the 
record in the NetCoalition I case, and that the Commission is entitled 
to rely upon such evidence in concluding fees are the product of 
competition, and therefore in accordance with the relevant statutory 
standards.\14\ Moreover, NASDAQ further notes that the product at issue 
in this filing--a NASDAQ quotation and last sale data product that 
replicates a subset of the information available through ``core'' data 
products whose fees have been reviewed and approved by the SEC--is 
quite different from the NYSE Arca depth-of-book data product at issue 
in NetCoalition I. Accordingly, any findings of the court with respect 
to that product may not be relevant to the product at issue in this 
filing. As the Commission noted in approving the initial pilot for 
NASDAQ Basic, all of the information available in NASDAQ Basic is 
included in the core data feeds made available pursuant to the joint-
SRO plans.\15\ As the Commission further

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determined, ``the availability of alternatives to NASDAQ Basic 
significantly affect the terms on which NASDAQ can distribute this 
market data. In setting the fees for its NASDAQ Basic service, NASDAQ 
must consider the extent to which market participants would choose one 
or more alternatives instead of purchasing the exchange's data.'' \16\ 
Thus, to the extent that the fees for core data have been established 
as reasonable under the Act, it follows that the fees for NASDAQ Basic 
are also reasonable, since charging unreasonably high fees would cause 
market participants to rely solely on core data or purchase proprietary 
products offered by other exchanges rather than purchasing NASDAQ 
Basic.
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    \14\ It should also be noted that Section 916 of the Dodd-Frank 
Wall Street Reform and Consumer Protection Act of 2010 (``Dodd-Frank 
Act'') has amended paragraph (A) of Section 19(b)(3) of the Act, 15 
U.S.C. 78s(b)(3), to make it clear that all exchange fees, including 
fees for market data, may be filed by exchanges on an immediately 
effective basis. See also NetCoalition v. SEC, 715 F.3d 342 (D.C. 
Cir. 2013) (``NetCoalition II'') (finding no jurisdiction to review 
Commission's non-suspension of immediately effective fee changes).
    \15\ Securities Exchange Act Release No. 12425 (March 16, 2009), 
74 FR 12423, 12425 (March 24, 2009) (SR-NASDAQ-2008-102).
    \16\ Id. at 12425.
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    Moreover, as discussed in the order approving the initial pilot, 
and as further discussed below in NASDAQ's Statement on Burden on 
Competition, data products such as NASDAQ Basic are a means by which 
exchanges compete to attract order flow. To the extent that exchanges 
are successful in such competition, they earn trading revenues and also 
enhance the value of their data products by increasing the amount of 
data they are able to provide. Conversely, to the extent that exchanges 
are unsuccessful, the inputs needed to add value to data products are 
diminished. Accordingly, the need to compete for order flow places 
substantial pressure upon exchanges to keep their fees for both 
executions and data reasonable.
    The proposed changes do not alter the reasonableness of the fees 
for NASDAQ Basic. Although the per subscriber fees for professional 
users of NASDAQ Basic are increasing, such fees continue to reflect the 
value of NASDAQ Basic as a subset of the data provided through core 
data products.\17\ Moreover, the fees in question have not changed 
since NASDAQ Basic's introduction in 2009, and since that time, 
numerous enhancements have been made to the product, as described above 
in the section of the proposed rule change discussing its purpose. In 
addition, the proposed enterprise license for Professional Subscribers 
and the proposed netting rules will provide means to mitigate the 
effect of the fee increase.
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    \17\ Professional Subscriber fees for core data under all of the 
SIP plans range from $67 to $97 per month, while Professional 
Subscriber fees for all three components of NASDAQ Basic would be 
$26 per month.
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    The changed fees for NASDAQ Basic also continue to reflect an 
equitable allocation and continue not to be unfairly discriminatory, 
because NASDAQ Basic is a voluntary product for which market 
participants can readily substitute core data feeds that provide 
additional quotation and last sale information not available through 
NASDAQ Basic. Accordingly, NASDAQ is constrained from pricing the 
product in a manner that would be inequitable or unfairly 
discriminatory. The distinction between fees for Professional and Non-
Professional Subscribers is consistent with the distinction made under 
fees for core data, and the applicable fees are lower than applicable 
fees for core data to reflect the lesser quantum of data made 
available. Moreover, the proposed enterprise license will help to 
ensure that fees for professional users are not inequitable or unfairly 
discriminatory, because they will be subject to limitations that will 
enable broker-dealers with large numbers of subscribers to moderate the 
fees that they would otherwise be required to pay. The proposed netting 
feature will also moderate fees by limiting the extent to which a 
Subscriber is charged for multiple uses of the data.

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

    NASDAQ 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. NASDAQ's ability to 
price NASDAQ Basic is constrained by (1) competition among exchanges, 
other trading platforms, and TRFs that compete with each other in a 
variety of dimensions; (2) the existence of inexpensive real-time 
consolidated data and market-specific data and free delayed 
consolidated data; and (3) the inherent contestability of the market 
for proprietary data.
    The market for proprietary data products is currently 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. Similarly, with respect to the TRF 
data component of NASDAQ Basic, allowing exchanges to operate TRFs has 
permitted them to earn revenues by providing technology and data in 
support of the non-exchange segment of the market. This revenue 
opportunity has also resulted in fierce competition between the two 
current TRF operators, with both TRFs charging extremely low trade 
reporting fees and rebating the majority of the revenues they receive 
from core market data to the parties reporting trades.
    Transaction executions 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.\18\ 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 trade executions, exchange data products cannot 
exist. Moreover, 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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    \18\ A complete explanation of the pricing dynamics associated 
with joint products is presented in a study that NASDAQ originally 
submitted to the Commission in SR-NASDAQ-2011-010, and which is also 
submitted as Exhibit 3 to this filing. See Statement of Janusz 
Ordover and Gustavo Bamberger at 2-17 (December 29, 2010).
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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, the operation of the 
exchange is characterized by high fixed costs and low marginal costs. 
This cost structure is common in content and content distribution 
industries such as software, where developing new software typically 
requires a large initial investment (and continuing large investments 
to upgrade the software), but once the software is developed, the 
incremental cost of providing that software to an additional user is 
typically small, or even zero (e.g., if the software can be downloaded 
over the internet after being purchased).\19\ In NASDAQ's case, it is 
costly to build and

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maintain a trading platform, but the incremental cost of trading each 
additional share on an existing platform, or distributing an additional 
instance of data, is very low. Market information and executions are 
each produced jointly (in the sense that the activities of trading and 
placing orders are the source of the information that is distributed) 
and are each subject to significant scale economies. In such cases, 
marginal cost pricing is not feasible because if all sales were priced 
at the margin, NASDAQ would be unable to defray its platform costs of 
providing the joint products. Similarly, data products cannot make use 
of TRF trade reports without the raw material of the trade reports 
themselves, and therefore necessitate the costs of operating, 
regulating,\20\ and maintaining a trade reporting system, costs that 
must be covered through the fees charged for use of the facility and 
sales of associated data.
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    \19\ See William J. Baumol and Daniel G. Swanson, ``The New 
Economy and Ubiquitous Competitive Price Discrimination: Identifying 
Defensible Criteria of Market Power,'' Antitrust Law Journal, Vol. 
70, No. 3 (2003).
    \20\ It should be noted that the costs of operating the FINRA/
NASDAQ TRF borne by NASDAQ include regulatory charges paid by NASDAQ 
to FINRA.
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    An exchange's BD customers view the costs of transaction executions 
and of data as a unified cost of doing business with the exchange. A BD 
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 BD 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 BD will choose not to buy it. Moreover, as a BD 
chooses to direct fewer orders to a particular exchange, the value of 
the product to that BD decreases, for two reasons. First, the product 
will contain less information, because executions of the BD's trading 
activity will not be reflected in it. Second, and perhaps more 
important, the product will be less valuable to that BD because it does 
not provide information about the venue to which it is directing its 
orders. Data from the competing venue to which the BD is directing 
orders will become correspondingly more valuable.
    Similarly, in the case of products such as NASDAQ Basic that may be 
distributed through market data vendors, the vendors provide price 
discipline for proprietary data products because they control a means 
of access to end users. Vendors impose price restraints based upon 
their business models. For example, vendors such as Bloomberg and 
Thomson 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 BDs, 
such as Charles 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. 
Exchanges, TRFs, 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. 
Moreover, NASDAQ believes that products such as NASDAQ Basic can 
enhance order flow to NASDAQ by providing more widespread distribution 
of information about transactions in real time, thereby encouraging 
wider participation in the market by investors with access to the data 
through their brokerage firm or other distribution sources. Conversely, 
the value of such products to distributors and investors decreases if 
order flow falls, because the products contain less content.
    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 exchange 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 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. Similarly, the inclusion of trade 
reporting data in a product such as NASDAQ Basic may assist in 
attracting customers to the product, thereby assisting in covering the 
additional costs associated with operating and regulating a TRF.
    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. NASDAQ pays rebates to attract orders, charges relatively 
low prices for market information and charges relatively high prices 
for accessing posted liquidity. Other platforms may choose a strategy 
of paying lower liquidity rebates to attract orders, setting relatively 
low prices for accessing posted liquidity, and setting relatively high 
prices for market information. Still others may provide most data free 
of charge and rely exclusively on transaction fees to recover their 
costs. Finally, some platforms may incentivize use by providing 
opportunities for equity ownership, which may allow them to charge 
lower direct fees for executions and data.
    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. Such regulation is unnecessary because an ``excessive'' price 
for one of the joint products will ultimately have to be reflected in 
lower prices for other products sold by the firm, or otherwise the firm 
will experience a loss in the volume of its sales that will be adverse 
to its overall profitability. In other words, an unreasonable increase 
in the price of data will ultimately have to be accompanied by a 
decrease in the cost of executions, or the volume of both data and 
executions will fall.
    The level of competition and contestability in the market is 
evident in the numerous alternative venues that compete for order flow, 
including thirteen SRO markets, as well as internalizing 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 TRFs compete to attract internalized transaction 
reports. It is common for BDs to further and exploit this competition 
by sending their order flow and transaction reports to multiple 
markets, rather than providing them all to a single market. 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

[[Page 8768]]

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 MKT, NYSE Arca, BATS, and Direct Edge.
    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 BDs' 
production of proprietary data products. The potential sources of 
proprietary products are virtually limitless. Notably, the potential 
sources of data include the BDs that submit trade reports to TRFs and 
that have the ability to consolidate and distribute their data without 
the involvement of FINRA or an exchange-operated TRF.
    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 a core data product, 
an SRO proprietary product, and/or a non-SRO proprietary product, the 
data available in proprietary products is exponentially greater than 
the actual number of orders and transaction reports that exist in the 
marketplace. Indeed, in the case of NASDAQ Basic, the data provided 
through that product appears both in (i) real-time core data products 
offered by the SIPs for a fee, and (ii) free SIP data products with a 
15-minute time delay, and finds a close substitute in similar products 
of competing venues.
    In addition to the competition and price discipline described 
above, the market for proprietary data products is also highly 
contestable because market entry is rapid, inexpensive, and profitable. 
The history of electronic trading is replete with examples of entrants 
that swiftly grew into some of the largest electronic trading platforms 
and proprietary data producers: Archipelago, Bloomberg Tradebook, 
Island, RediBook, Attain, TracECN, BATS Trading and Direct Edge. A 
proliferation of dark pools and other ATSs operate profitably with 
fragmentary shares of consolidated market volume.
    Regulation NMS, by deregulating the market for proprietary data, 
has increased the contestability of that market. While BDs have 
previously published their proprietary data individually, Regulation 
NMS encourages market data vendors and BDs to produce proprietary 
products cooperatively in a manner never before possible. Multiple 
market data vendors already have the capability to aggregate data and 
disseminate it on a profitable scale, including Bloomberg and Thomson 
Reuters. In Europe, Markit aggregates and disseminates data from over 
50 brokers and multilateral trading facilities.\21\
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    \21\ http://www.markit.com/en/products/data/boat/boat-boat-data.page.
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    In the case of TRFs, the rapid entry of several exchanges into this 
space in 2006-2007 following the development and Commission approval of 
the TRF structure demonstrates the contestability of this aspect of the 
market.\22\ Given the demand for trade reporting services that is 
itself a by-product of the fierce competition for transaction 
executions--characterized notably by a proliferation of ATSs and BDs 
offering internalization--any supra-competitive increase in the fees 
associated with trade reporting or TRF data would shift trade report 
volumes from one of the existing TRFs to the other \23\ and create 
incentives for other TRF operators to enter the space. Alternatively, 
because BDs reporting to TRFs are themselves free to consolidate the 
market data that they report, the market for over-the-counter data 
itself, separate and apart from the markets for execution and trade 
reporting services--is fully contestable.
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    \22\ The low cost exit of two TRFs from the market is also 
evidence of a contestible market, because new entrants are reluctant 
to enter a market where exit may involve substantial shut-down 
costs.
    \23\ It should be noted that the FINRA/NYSE TRF has, in recent 
weeks, received reports for over 10% of all over-the-counter volume 
in NMS stocks. In addition, FINRA has announced plans to update its 
Alternative Display Facility, which is also able to receive over-
the-counter trade reports. See Securities Exchange Act Release No. 
70048 (July 26, 2013), 78 FR 46652 (August 1, 2013) (SR-FINRA-2013-
031).
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    Moreover, consolidated data provides substantial pricing discipline 
for proprietary data products that are a subset of the consolidated 
data stream. Because consolidated data contains marketwide information, 
it effectively places a cap on the fees assessed for proprietary data 
(such as quotation and last sale data) that is simply a subset of the 
consolidated data. The availability provides a powerful form of pricing 
discipline for proprietary data products that contain data elements 
that are a subset of the consolidated data, by highlighting the 
optional nature of proprietary products.
    The competitive nature of the market for non-core ``sub-set'' 
products such as NASDAQ Basic is borne out by the performance of the 
market. In May 2008, the internet portal Yahoo! began offering its Web 
site viewers real-time last sale data (as well as best quote data) 
provided by BATS. In June 2008, NASDAQ launched NLS, which was 
initially subject to an ``enterprise cap'' of $100,000 for customers 
receiving only one of the NLS products, and $150,000 for customers 
receiving both products. The majority of NASDAQ's sales were at the 
capped level. In early 2009, BATS expanded its offering of free data to 
include depth-of-book data. Also in early 2009, NYSE Arca announced the 
launch of a competitive last sale product with an enterprise price of 
$30,000 per month. In response, NASDAQ combined the enterprise cap for 
the NLS products and reduced the cap to $50,000 (i.e., a reduction of 
$100,000 per month). Similarly, the enterprise license and netting 
option being offered for NASDAQ Basic through this proposed rule change 
reflects a means by which the overall cost of the product is limited in 
accordance with the existence of competitive alternatives, including 
both core and proprietary data.
    In this environment, 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'.'' NetCoalition I at 539. The existence of 
fierce competition for order flow implies a high degree of price 
sensitivity on the part of BDs with order flow, since they may readily 
reduce costs by directing orders toward the lowest-cost trading venues. 
A BD 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. If a platform increases its market 
data fees, the change will affect the overall cost of doing business 
with the platform, and affected BDs will assess whether they can lower 
their trading costs by directing orders elsewhere and thereby lessening 
the need for the more expensive data. Similarly, increases in the cost 
of NASDAQ Basic would impair the willingness of distributors to take a 
product for which there are numerous alternatives, impacting NASDAQ 
Basic data revenues, the value of NASDAQ Basic as a tool for attracting 
order flow, and ultimately, the volume of orders routed to NASDAQ and

[[Page 8769]]

reported to the FINRA/NASDAQ TRF and the value of its other data 
products.
    Competition has also driven NASDAQ continually to improve its data 
offerings and to cater to customers' data needs. The NASDAQ Basic 
product itself is a product of this competition, offering a subset of 
core data to users that may not wish to receive or pay for all 
consolidated data. Moreover, as detailed in the section of this 
proposed rule change discussing its purpose, NASDAQ has made continual 
enhancements to the NASDAQ Basic product to ensure that it remains an 
attractive offering to its customers. Despite these enhancements and a 
dramatic increase in message traffic, NASDAQ's fees for professional 
usage of NASDAQ Basic have hitherto remained flat.
    The existence of numerous alternatives to NASDAQ Basic, including 
real-time consolidated data, free delayed consolidated data, and 
proprietary data from other sources ensures that NASDAQ cannot set 
unreasonable fees, or fees that are unreasonably discriminatory, 
without losing business to these alternatives. Accordingly, NASDAQ 
believes that the acceptance of the NASDAQ Basic product in the 
marketplace demonstrates the consistency of these fees with applicable 
statutory standards. Likewise, the fee changes proposed herein will be 
subject to these same competitive forces. If the proposed fee increase 
is excessive, or if the proposals for an enterprise license and netting 
are unattractive to market participants, only NASDAQ will suffer, since 
its customers will merely migrate to competitive alternatives.

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.\24\ 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.
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    \24\ 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-NASDAQ-2014-011 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-NASDAQ-2014-011. 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-NASDAQ-2014-011 and should 
be submitted on or before March 6, 2014.
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    \25\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\25\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-03121 Filed 2-12-14; 8:45 am]
BILLING CODE 8011-01-P