[Federal Register Volume 80, Number 219 (Friday, November 13, 2015)]
[Notices]
[Pages 70279-70282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28807]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-76383; File No. SR-BX-2015-063]


Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Regarding 
NASDAQ Last Sale Plus

November 6, 2015.
    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 27, 2015, NASDAQ OMX BX, Inc. (``BX'' 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 BX Rule 7039 (BX Last Sale and 
NASDAQ Last Sale Plus Data Feeds) with language clarifying that the 
data consolidation component of the fees for NASDAQ Last Sale Plus 
(``NLS Plus''), a comprehensive data feed offered by NASDAQ OMX 
Information LLC,\3\ will be charged solely to firms that are Internal 
Distributors and External Distributors (collectively, ``Distributors'' 
of the data feed) that receive a NLS Plus direct data feed.\4\
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    \3\ NASDAQ OMX Information LLC is a subsidiary of Nasdaq, Inc. 
(formerly, The NASDAQ OMX Group, Inc.), separate and apart from The 
NASDAQ Stock Market LLC. The primary purpose of NASDAQ OMX 
Information LLC is to combine publicly available data from the three 
filed last sale products of the exchange subsidiaries of Nasdaq, 
Inc. and from the network processors for the ease and convenience of 
market data users and vendors, and ultimately the investing public. 
In that role, the function of NASDAQ OMX Information LLC is 
analogous to that of other market data vendors, and it has no 
competitive advantage over other market data vendors; NASDAQ OMX 
Information LLC performs precisely the same functions as Bloomberg, 
Thomson Reuters, and other market data vendors.
    \4\ ``Internal Distributors'' are Distributors that receive 
NASDAQ Last Sale Plus data and then distribute that data to one or 
more Subscribers within the Distributor's own entity. ``External 
Distributors'' are Distributors that receive NASDAQ Last Sale Plus 
data and then distribute that data to one or more Subscribers 
outside the Distributor's own entity. Internal Distributors and 
External Distributors are together known as ``Distributors''. 
Proposed BX Rule 7039(b)(1).
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    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqomxbx.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 this proposal is to amend BX Rule 7039 with language 
clarifying that the data consolidation component of the fees for NLS 
Plus will be charged solely to firms that are

[[Page 70280]]

Distributors that receive an NLS Plus direct data feed.\5\
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    \5\ Thus, the fee does not apply to persons that receive the NLS 
Plus data feed indirectly, through an Internal Distributor or 
External Distributor.
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    NLS Plus \6\ allows data distributors to access last sale products 
offered by each of Nasdaq, Inc.'s three U.S. equity exchanges.\7\ NLS 
Plus includes all transactions from these exchanges, as well as FINRA/
NASDAQ TRF data that is included in the current NLS product. In 
addition, NLS Plus features total cross-market volume information at 
the issue level, thereby providing redistribution of consolidated 
volume information (``consolidated volume'') from the securities 
information processors (``SIPs'') for Tape A, B, and C securities.\8\ 
Thus, NLS Plus covers all securities listed on NASDAQ and New York 
Stock Exchange (``NYSE'') (now under the Intercontinental Exchange 
(``ICE'') umbrella), as well as US ``regional'' exchanges such as NYSE 
MKT, NYSE Arca, and BATS (also known as BATS/Direct Edge).\9\
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    \6\ See Securities Exchange Act Release Nos. 75709 (August 14, 
2015), 80 FR 50671 (August 20, 2015) (SR-BX-2015-047) (notice of 
filing and immediate effectiveness regarding NLS Plus on BX); 75830 
(September 3, 2015), 80 FR 54640 (September 10, 2015) (SR-BX-2015-
054) (notice of filing and immediate effectiveness regarding fees 
for NLS Plus on BX); 75257 (June 22, 2015), 80 FR 36862 (June 26, 
2015)(SR-NASDAQ-2015-055) (order approving proposed rule change 
regarding NLS Plus); 75600 (August 4, 2015), 80 FR 47968 (August 10, 
2015)(SR-NASDAQ-2015-088) (notice of filing and immediate 
effectiveness regarding fees for NLS Plus) (the ``NLS Plus fee 
proposal''); 75763 (August 26, 2015), 80 FR 52817 (September 1, 
2015) (SR-Phlx-2015-72) (notice of filing and immediate 
effectiveness regarding NLS Plus on PSX); and 75890 (September 10, 
2015), 80 FR 55692 (September 16, 2015) (SR-Phlx-2015-76) (notice of 
filing and immediate effectiveness regarding fees for NLS Plus on 
PSX).
    \7\ The NASDAQ OMX U.S. equity markets include the Exchange,\,\ 
The NASDAQ Stock Market LLC (``NASDAQ''), and NASDAQ OMX PSX 
(``PSX'') (together known as the ``NASDAQ OMX equity markets''). PSX 
and NASDAQ are filing companion proposals similar to this one. 
NASDAQ's last sale product, NASDAQ Last Sale, includes last sale 
information from the FINRA/NASDAQ Trade Reporting Facility (``FINRA/
NASDAQ TRF''), which is jointly operated by NASDAQ and the Financial 
Industry Regulatory Authority (``FINRA''). See Securities Exchange 
Act Release No. 71350 (January 17, 2014), 79 FR 4218 (January 24, 
2014) (SR-FINRA-2014-002). For proposed rule changes submitted with 
respect to NASDAQ Last Sale, BX Last Sale, and PSX Last Sale, see, 
e.g., Securities Exchange Act Release Nos. 57965 (June 16, 2008), 73 
FR 35178, (June 20, 2008) (SR-NASDAQ-2006-060) (order approving 
NASDAQ Last Sale data feeds pilot); 61112 (December 4, 2009), 74 FR 
65569, (December 10, 2009) (SR-BX-2009-077) (notice of filing and 
immediate effectiveness regarding BX Last Sale data feeds); and 
62876 (September 9, 2010), 75 FR 56624, (September 16, 2010) (SR-
Phlx-2010-120) (notice of filing and immediate effectiveness 
regarding PSX Last Sale data feeds).
    \8\ Tape A and Tape B securities are disseminated pursuant to 
the Security Industry Automation Corporation's (``SIAC'') 
Consolidated Tape Association Plan/Consolidated Quotation System, or 
CTA/CQS (``CTA''). Tape C securities are disseminated pursuant to 
the NASDAQ Unlisted Trading Privileges (``UTP'') Plan. NLS Plus 
reflects real-time trading activity for Tape C securities and 15-
minute delayed information for Tape A and Tape B securities.
    \9\ Registered U.S. exchanges are listed at http://www.sec.gov/divisions/marketreg/mrexchanges.shtml.
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    NLS Plus is currently codified in BX Rule 7039(b). The fees for NLS 
Plus are set forth in BX Rule 7039(b)(1)-(b)(3) as follows:
    (1) Firms that receive NLS Plus shall pay the annual administration 
fees for NLS, BX Last Sale, and PSX Last Sale,\10\ and a data 
consolidation fee of $350 per month.
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    \10\ Annual administrative fees are in BX Rule 7035, NASDAQ Rule 
7035, and NASDAQ OMX PSX Fees Chapter VIII. These remain unchanged 
at: $1,000 for NASDAQ, $1,000 for BX, and $1,000 for PSX. For 
purposes of conformity, ``administration'' is changed to 
``administrative'' in BX Rule 7039(d)(1), discussed below.
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    (2) Firms that receive NLS Plus would either be liable for NLS fees 
or NASDAQ Basic fees.
    (3) In the event that NASDAQ OMX BX and/or NASDAQ OMX PHLX adopt 
user fees for BX Last Sale and/or PSX Last Sale, firms that receive NLS 
Plus would also be liable for such fees.
    The Exchange now proposes to clarify how the data consolidation fee 
in BX Rule 7039(d)(1) will be charged. Specifically, the Exchange 
proposes to clarify that firms that are Distributors that receive a 
NASDAQ Last Sale Plus direct data feed and are Distributors shall pay a 
data consolidation fee of $350 per month. Thus, only Distributors that 
receive NLS Plus would be charged the data consolidation fee. As 
proposed to be amended, BX Rule 7039(b)(1) would state:
    (1) Firms that receive NLS Plus shall pay the annual administrative 
fees for NLS, BX Last Sale, and PSX Last Sale. Additionally, Internal 
Distributors or External Distributors shall pay a data consolidation 
fee of $350 per month.\11\ ``Internal Distributors'' are Distributors 
that receive NLS Plus data and then distribute that data to one or more 
Subscribers within the Distributor's own entity. ``External 
Distributors'' are Distributors that receive NLS Plus data and then 
distribute that data to one or more Subscribers outside the 
Distributor's own entity.\12\
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    \11\ The Exchange notes that those that have received NLS Plus 
directly from the Exchange have all, in fact, been firms. While the 
NLS Plus feed is available to all that subscribe and pay the 
requisite costs, the Exchange believes that in light of such costs 
it will continue to experience only firms receiving the feed 
directly from the Exchange.
    \12\ BX Rule 7039(b)(2) and (b)(3) would remain unchanged.
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    The NLS Plus fee structure as amended continues to be designed to 
ensure that vendors could compete with the Exchange by creating a 
product similar to NLS Plus.\13\ The proposed fee structure reflects 
the cost of the data feeds underlying NLS Plus (including user fees and 
annual administrative fees), as well as the incremental cost of the 
aggregation and consolidation function (the ``consolidation function'') 
for NLS Plus. Accordingly, the Exchange believes that the fee structure 
would not result in charges for NLS Plus that are lower than the cost 
to a vendor creating a competing product, including the cost of 
receiving the underlying data feeds and consolidating them. The data 
consolidation fee recognizes that NLS Plus is created from data derived 
from NASDAQ Last Sale, BX Last Sale, PSX Last Sale, and data from the 
SIPs to which a consolidation function is applied. Charging the 
consolidation fee will not impede an entity receiving the underlying 
direct data feeds from creating a competing product to the NLS Plus 
feed based on combining individual data feeds, and charging its clients 
a fee that it believes reflects the value of the consolidation 
function. The Exchange believes that the incremental cost of 
aggregation to an entity that wants to re-create NLS Plus will be 
factored into the entity's revenue opportunity and may be 
inconsequential where the vendor has in place systems to perform these 
functions as part of creating its proprietary market data products and 
allocating costs over numerous products and customer relationships. For 
these reasons, the Exchange believes that vendors could readily offer a 
product similar to the NLS Plus on a competitive basis at a similar 
cost.
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    \13\ For additional discussion regarding potential competition 
with NLS Plus, see supra note 6 and filings cited therein.
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    The amendment to clarify that the consolidation fee applies to 
Distributors that receive the NLS Plus data feed directly but does not 
apply to persons that receive NLS Plus indirectly through a Distributor 
is designed to ensure that the Exchange charges the fee only to those 
persons that directly benefit from the consolidation function. 
Specifically, if a person wished to combine the products that underlie 
NLS Plus and distribute them to customers or internal users, it would 
incur its own consolidation costs. By purchasing NLS Plus for 
distribution, a Distributor foregoes these costs and instead opts to 
pay the Exchange to perform the consolidation function for it. Thus, 
imposing this fee upon Distributors is a logical corollary to the 
service being provided. By contrast, imposing the fee

[[Page 70281]]

upon persons receiving the product through Distributors would 
effectively impose a duplicative charge, since such persons consume the 
data but are not in the business of distributing it and therefore do 
not forego consolidation costs when receiving the product. The Exchange 
further notes that the consolidation fee for BATS One, an analogous 
product of competing exchanges, is charged solely to external 
distributors of that product.\14\
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    \14\ See, e.g., Securities Exchange Act Release No. 73918 
(December 23, 2014), 79 FR 78920 (December 31, 2014) (SR-BATS-2014-
055; SR-BYX-2014-030; SR-EDGA-2014-25; SR-EDGX-2014-25) (order 
approving market data product called BATS One Feed being offered by 
four affiliated exchanges).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6 of the Act,\15\ in general, and with 
Sections 6(b)(4) and (5) of the Act,\16\ in particular, in that it 
provides for the equitable allocation of reasonable dues, fees, and 
other charges among its members, issuers and other persons using its 
facilities, and does not unfairly discriminate between customers, 
issuers, brokers or dealers. All recipients of the NLS Plus data 
offering continue to pay the underlying data feed fees and annual 
administrative fees for NLS, BX Last Sale, and PSX Last Sale. The 
Exchange is simply clarifying that the data consolidation component of 
the fees for NLS Plus will be charged solely to firms that receive a 
NASDAQ Last Sale Plus direct datafeed and are Distributors.
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    \15\ 15 U.S.C. 78f.
    \16\ 15 U.S.C. 78f(b)(4) and (5).
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    This change is reasonable and consistent with an equitable 
allocation of fees because it is designed to ensure that the Exchange 
charges the fee only to those persons that directly benefit from the 
consolidation function. Specifically, if a person wished to combine the 
products that underlie NLS Plus and distribute them to customers or 
internal users, it would incur its own consolidation costs. By 
purchasing NLS Plus for distribution, a Distributor foregoes these 
costs and instead opts to pay the Exchange to perform the consolidation 
function for it. Thus, imposing this fee upon Distributors is a logical 
corollary to the service being provided. The change is also not 
unfairly discriminatory. Indeed, imposing the fee upon persons 
receiving NLS Plus indirectly through Distributors would effectively 
impose a duplicative charge upon them, since such persons consume the 
data but are not in the business of distributing it and therefore do 
not forego consolidation costs when receiving the product. The Exchange 
further notes that the consolidation fee for BATS One, an analogous 
product of competing exchanges, is charged solely to external 
distributors of that product.\17\ Accordingly, the exchanges that 
distribute BATS One take an analogous approach, in that they do not 
charge a consolidation fee to indirect recipients of the product, but 
rather charge the fee only to a subset of its distributors.
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    \17\ See, e.g., Securities Exchange Act Release No. 73918 
(December 23, 2014), 79 FR 78920 (December 31, 2014) (SR-BATS-2014-
055; SR-BYX-2014-030; SR-EDGA-2014-25; SR-EDGX-2014-25) (order 
approving market data product called BATS One Feed being offered by 
four affiliated exchanges).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. The change proposed herein is 
designed to ensure that the consolidation fee for NLS Plus is 
appropriately assessed to Distributors of the product that benefit from 
the consolidation function performed by NASDAQ OMX Information LLC in 
creating the product and insures that a duplicative charge is not also 
assessed against indirect recipients of the product. Thus, the change 
will avoid the imposition of fees on certain product recipients, while 
not increasing fees for any recipients.
    The market for data products is extremely competitive and firms may 
freely choose alternative venues and data vendors based on the 
aggregate fees assessed, the data offered, and the value provided. This 
rule proposal does not burden competition, which is reflected in the 
offerings of other exchanges that sell alternative data products \18\ 
and in the ability of competing data feed vendors to combine underlying 
data feeds in direct competition with NLS Plus. NASDAQ OMX Information 
LLC was constructed specifically to establish a level playing field 
with market data vendors and to preserve fair competition between them. 
NASDAQ OMX Information LLC receives NLS, BX Last Sale, and PSX Last 
Sale from each NASDAQ-operated exchange in the same manner, at the same 
speed, and reflecting the same fees as for all market data vendors. 
Therefore, NASDAQ OMX Information LLC has no competitive advantage with 
respect to these last sale products and NASDAQ commits to maintaining 
this level playing field in the future. In other words, NASDAQ will 
continue to disseminate separately the underlying last sale products to 
avoid creating a latency differential between NASDAQ OMX Information 
LLC and other market data vendors, and to avoid creating a pricing 
advantage for NASDAQ OMX Information LLC.
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    \18\ Id.
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    NLS Plus exists in a market for proprietary last sale data products 
that 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 FINRA/NASDAQ TRF 
data that is a component of NLS and NLS Plus, 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 execution and proprietary data products are 
complementary in that market data is both an input and a byproduct of 
the execution service. In fact, market data and trade execution are a 
paradigmatic example of joint products with joint costs. The decision 
whether and on which platform to post an order will depend on the 
attributes of the platform where the order can be posted, including the 
execution fees, data quality and price, and distribution of its data 
products. Without 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.
    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

[[Page 70282]]

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 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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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

    Pursuant to Section 19(b)(3)(A)(ii) of the Act,\21\ the Exchange 
has designated this proposal as establishing or changing a due, fee, or 
other charge imposed on any person, whether or not the person is a 
member of the self-regulatory organization, which renders the proposed 
rule change effective upon filing.
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    \21\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    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.

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-BX-2015-063 on the subject line.

Paper comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC


 20549-1090.All submissions should refer to File Number SR-BX-2015-063. 
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-BX-2015-063 and 
should be submitted on or before December 4, 2015.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\22\
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    \22\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-28807 Filed 11-12-15; 8:45 am]
BILLING CODE 8011-01-P