[Federal Register Volume 81, Number 229 (Tuesday, November 29, 2016)]
[Notices]
[Pages 86050-86055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28637]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79378; File No. SR-NYSEMKT-2016-63]


Self-Regulatory Organizations; NYSE MKT LLC; Order Instituting 
Proceedings To Determine Whether To Approve or Disapprove a Proposed 
Change, as Modified by Amendment No. 1, Amending the Co-location 
Services Offered by the Exchange To Add Certain Access and Connectivity 
Fees

November 22, 2016.

I. Introduction

    On August 16, 2016, NYSE MKT LLC (the ``Exchange'' or ``NYSE MKT'') 
filed with the Securities and Exchange Commission (``Commission''), 
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change (1) 
to provide additional information regarding access to various trading 
and execution services; connectivity to market data feeds and testing 
and certification feeds; connectivity to Third Party Systems; and 
connectivity to DTCC provided to Users using data center local area 
networks; and (2) to establish fees relating to a User's access to 
various trading and execution services; connectivity to market data 
feeds and testing and certification feeds; connectivity to DTCC; and 
other services. The proposed rule change was published for comment in 
the Federal Register on August 26, 2016.\3\ The Commission received no 
comments in response to the proposed rule change.\4\ On October 4, 
2016, the Commission extended the time period within which to approve 
the proposed rule change, disapprove the proposed rule change, or 
institute proceedings to determine whether to approve or disapprove the 
proposed rule change to November 24, 2016.\5\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 34-78629 (August 22, 
2016), 81 FR 58992 (``Notice'').
    \4\ The Commission notes that it did receive one comment letter 
on a related filing, NYSE-2016-45, which is equally relevant to this 
filing. See letter to Brent J. Fields, Secretary, Commission, from 
John Ramsay, Chief Market Policy Officer, Investors Exchange LLC 
(IEX), dated September 9, 2016 (``IEX Letter'').
     On September 23, 2016, the NYSE submitted a response 
(``Response Letter'').
    \5\ See Securities Exchange Act Release No. 34-78968 (September 
28, 2016), 81 FR 68493.
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    On November 2, 2016, the Exchange filed Amendment No. 1 to the 
proposed rule change.\6\ The Commission is publishing this order to 
solicit comments on Amendment No. 1 from interested persons and to 
institute proceedings pursuant to Exchange Act Section 19(b)(2)(B) to 
determine whether to approve or disapprove the proposed rule change, as 
modified by Amendment No. 1.\7\ Institution of proceedings does not 
indicate that the Commission has reached any conclusions with respect 
to the proposed rule change, nor does it mean that the Commission will 
ultimately disapprove the proposed rule change. Rather, as discussed 
below, the Commission seeks additional input on the proposed rule 
change, as modified by Amendment No. 1, and on the issues presented by 
the proposal.
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    \6\ Amendment No. 1 is discussed further infra. Amendment No. 1 
is available on the Commission's Web site at https://www.sec.gov/comments/sr-nysemkt-2016-63/nysemkt201663-1.pdf.
    \7\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of the Proposed Rule Change, as Modified by Amendment 
No. 1

    The proposed rule change seeks to amend the co-location services 
offered by the Exchange to (1) provide additional information regarding 
the access to trading and execution services and connectivity to data 
provided to Users with local area networks available in the data 
center; and (2) establish fees relating to a User's \8\ access to 
trading and execution services; connectivity to data feeds and to 
testing and certification feeds; connectivity to clearing; and other 
services.\9\
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    \8\ For purposes of the Exchange's co-location services, a 
``User'' means any market participant that requests to receive co-
location services directly from the Exchange. See Securities 
Exchange Act Release No. 76008 (September 29, 2015), 80 FR 60190 
(October 5, 2015) (SR-NYSE-2015-40). As specified in the Fee 
Schedules, a User that incurs co-location fees for a particular co-
location service pursuant thereto would not be subject to co-
location fees for the same co-location service charged by the 
Exchange's affiliates NYSE MKT LLC (``NYSE MKT'') and NYSE Arca, 
Inc. (``NYSE Arca'' and, together with NYSE MKT, the ``Affiliate 
SROs''). See Securities Exchange Act Release No. 70206 (August 15, 
2013), 78 FR 51765 (August 21, 2013) (SR-NYSE-2013-59).
    \9\ See Notice, supra note 3, 81 FR at 58993.
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Background and Access to Exchange Systems

    As discussed more fully in the Notice, a User can purchase access 
to the Liquidity Center Network (``LCN'') and/or internet protocol 
(``IP'') network in the data center through the purchase of a 1, 10, or 
40 Gb LCN circuit, a 10 Gb LX Circuit, bundled network access, Partial 
Cabinet Solution bundle, or 1, 10 or 40 Gb IP network access.\10\ The 
purchase of any of the LCN or IP network circuit options gives a User 
access \11\ to the Exchange's trading and execution systems, 
connectivity to the Exchange's certification and testing feeds,\12\ and 
the ability to connect to any NYSE Data Product.\13\ More specifically, 
access to the Exchange's trading and execution system provides a User 
with access to the Exchange's ``customer gateways that provide for 
order entry, order receipt (i.e. confirmation that an order has been 
received), receipt of drop copies and trade reporting (i.e. whether a 
trade is executed or cancelled), as well as for sending information to 
shared data services for clearing and settlement.'' \14\ The Exchange 
seeks to add clarifying language in its proposed rule to reflect the 
services included with purchase of Exchange system access.\15\
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    \10\ See id.
    \11\ The purchase of access is subject to receiving 
authorization from the NYSE, NYSE MKT or NYSE Arca for the Included 
Data Products, as applicable. See id. at 58993 n.10.
    \12\ Certification feeds are used to certify that a User 
conforms to any relevant technical requirements for receipt of data 
or access to Exchange systems. Testing feeds, which do not carry 
live production data, provide Users with an environment to conduct 
tests with the non-live data, including testing for upcoming 
Exchange releases and product enhancements or the User's own 
software development. See id. at 58993. These feeds are only 
available over the IP network, however a User without an IP network 
connection may obtain an IP network circuit for purposes of testing 
and certification for free for three months. See id. at 58993 n.12.
    \13\ See id. at 58993.
    \14\ See id. The Exchange represents that connectivity to the 
Exchange systems can be obtained without the purchase of access to 
the LCN or IP network. See id.
    \15\ See id.
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Connectivity to Included Data Products

    As discussed more fully below, the Exchange offers connectivity to 
three types of data products: Included Data Products, Premium NYSE Data 
Products, and Third Party Data Feeds.\16\

[[Page 86051]]

As discussed more fully in the Notice, the Included Data Products 
include Consolidated Tape Association (``CTA'') disseminated data feeds 
and NMS data feeds.\17\ The CTA disseminates consolidated real-time 
trade and quote information in NYSE listed securities (Network A) and 
NYSE MKT, NYSE Arca and other regional exchanges' listed securities 
(Network B) pursuant to a national market system plan.\18\ The NMS data 
feeds include Consolidated Tape System and Consolidated Quote System 
data streams, as well as Options Price Reporting Authority feeds.\19\ 
To obtain connectivity to the Included Data Products, a User must enter 
into a contract with the data provider and pay any applicable fees.\20\ 
Once the Exchange receives an authorization from the data feed 
provider, the Exchange will provide connectivity to the Included Data 
Product(s) through a User's LCN or IP network port.\21\ The Exchange 
does not charge any additional fees for this connectivity ``because 
such access and connectivity is directly related to the purpose of co-
location.'' \22\ The Exchange proposes to add language to the NYSE MKT 
Equities Price List and the NYSE Amex Options Fee Schedule 
(collectively ``Fee Schedules'') to specify that there are no 
additional fees for connectivity to Included Data Products.\23\
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    \16\ See id. at 58993-58994. Neither the NYSE Data Products or 
Third Party Data Feeds provide access or order entry to the 
Exchange's execution system. See id. at 58994 n. 15. Connectivity to 
the NYSE Data Products is available in three forms: A resilient 
feed, ``Feed A'', or ``Feed B.'' A resilient feed includes two 
copies of the same feed for redundancy purposes and Feed A and Feed 
B are identical feeds. A User that wants redundancy would connect to 
both Feed A and Feed B or two resilient feeds, using two different 
ports. See id. at 58993; see also id. at 58993 n. 13.
    \17\ See Notice, supra note 3, 81 FR at 58994.
    \18\ See id.
    \19\ See id.
    \20\ See id.
    \21\ See id.
    \22\ See id.; see also Amendment No. 1, supra note 6.
    \23\ See Notice, supra note 3, 81 FR at 58994.
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Connectivity to Premium NYSE Data Products

    As part of its data product offerings, the Exchange now proposes to 
provide connectivity to Premium NYSE Data Products from the Exchange 
and its Affiliate SROs to Users over either the LCN and/or IP network 
``because such access and connectivity is directly related to the 
purpose of co-location.'' \24\ The proposed rule change seeks to amend 
the Fee Schedules to specify the connectivity fees for Premium NYSE 
Data Products.\25\
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    \24\ See id.; see also Amendment No. 1, supra note 6.
    \25\ See Notice, supra note 3, 81 FR at 58995.
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    As discussed more fully in the Notice, the Premium NYSE Data 
Products are ``equity market data products that are variants of the 
equity Included Data Products. Each Premium NYSE Data Product 
integrates, or includes data elements from, several Included Data 
Products.'' \26\ These Integrated Feeds include ``depth of book order 
data (with add, modify and delete orders), trades (with corrections and 
cancel/errors), opening and closing imbalance data, security status 
updates (e.g., trade corrections and trading halts) and stock summary 
messages. The stock summary messages display a market's opening price, 
high price, low price, closing price, and cumulative volume for a 
security. Only the Integrated Feeds offer all these components in 
sequence in one feed.'' \27\ Additionally, the NYSE BQT data feed 
includes, among other things, certain data elements from six of the 
equity Included Data Products of the Exchange and Affiliated SROs in 
one data feed: NYSE Trades, NYSE BBO, NYSE Arca Trades, NYSE Arca BBO, 
NYSE MKT Trades, and NYSE MKT BBO.\28\
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    \26\ See id. at 58994. Examples include: (1) The NYSE Integrated 
Feed that includes, among other items, data from three of the equity 
Included Data Products: NYSE OpenBook, NYSE Trades, and NYSE Order 
Imbalances; and (2) the NYSE BQT data feed that includes, among 
other items, specific data elements from six of the equity Included 
Data Products: NYSE Trades, NYSE BBO, NYSE Arca Trades, NYSE Arca 
BBO, NYSE MKT Trades, and NYSE MKT BBO. See id. Additionally, with 
respect to the NYSE Amex and NYSE Arca options data, neither NYSE 
Amex nor NYSE Arca offer Premium Data Products because there are 
``no options data products that integrate, or include data elements 
from, other option data products in the same manner that the NYSE, 
NYSE MKT and NYSE Arca Integrated Feeds integrate, or include data 
elements from, equity Included Data Products.'' See id.
    \27\ See Amendment No. 1, supra note 6.
    \28\ See id. None of the Included Data Products provide Users 
with data from the Exchange and Affiliate SROs in one feed. See id. 
Also, according to the Exchange, the Premium Data Products contain 
more data overall in comparison to the Included Data Products and 
potentially can be subject to greater technical specifications in 
order to receive the feed(s). See Notice, supra note 3, 81 FR at 
58995. ``For example, a User connecting to the NYSE Arca Integrated 
Feed, NYSE Integrated Feed or NYSE MKT Integrated Feed would need at 
least a 1 Gb IP network connection in order to connect to either 
Feed A or Feed B. To connect to a resilient feed, the User would 
require an LCN or IP network connection of at least 10 Gb.'' See id. 
at 58993 n. 13.
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    As is the case with Included Data Products, a User of Premium NYSE 
Data Products must enter into a contract with the data provider for 
each feed and the provider would then authorize the Exchange to provide 
connectivity of the particular feed to that User's LCN or IP Network 
port.\29\ The Exchange proposes to charge a User a monthly recurring 
fee per each Premium NYSE Data Product feed for the connectivity 
provided by the Exchange.\30\
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    \29\ See Notice, supra note 3, 81 FR at 58994.
    \30\ See id. at 58995.
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Connectivity to Third Party Data Feeds

    The Exchange's proposal further seeks to offer Third Party Data 
Feeds to Users and to charge a connectivity fee per feed as reflected 
on its Fee Schedules.\31\ In the data center, the Exchange receives 
Third Party Data Feeds from multiple national securities exchanges and 
other content service providers which it then provides to requesting 
Users for a fee.\32\ With the exceptions of Global OTC and NYSE Global 
Index, Users connect to Third Party Data Feeds over the IP network.\33\ 
In charging for this service, the Exchange notes that its practice is 
consistent with the monthly fee Nasdaq charges its co-location 
customers for connectivity to third party data.\34\
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    \31\ See id. at 58996.
    \32\ See id.
    \33\ See id.
    \34\ See id. The Exchange notes that Nasdaq charges monthly fees 
of $1,500 and $4,000 for connectivity to BATS Y and BATS, 
respectively, and of $2,500 for connectivity to EDGA or EDGX. See 
id.
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    In order to connect to a Third Party Data Feed, a User must enter 
into a contract with the relevant third party market or content service 
provider, under which the third party market or content service 
provider charges the User for the data feed.\35\ The Exchange receives 
these Third Party Data Feeds over its fiber optic network and, after 
the data provider and User enter into a contract and the Exchange 
receives authorization from the data provider, the Exchange re-
transmits the data to the User over a User's port.\36\ Users only 
receive, and are only charged for, the feed(s) which they have entered 
into contracts for.\37\ Additionally, the Exchange notes that Third 
Party Data Feeds do not provide access or order entry to its execution 
system or access to the execution system of the third party generating 
the feed.\38\ The Exchange proposes to charge a monthly recurring fee 
for connectivity to each Third Party Data Feed, however for SuperFeed 
and MSCI it proposes to charge different fees which vary based on the 
bandwidth requirements for the connection.\39\ A User is free to 
receive all or some of the feeds included in the

[[Page 86052]]

Fee Schedules.\40\ Moreover, the Exchange notes that Third Party Data 
Feed providers may charge redistribution fees, such as Nasdaq's 
Extranet Access Fees and OTC Markets Group's Access Fees,\41\ which the 
Exchange will pass through to the User in addition to charging the 
applicable connectivity fee.\42\ Finally, the Exchange permits third 
party markets or content providers that are also Users to connect to 
their own Third Party Data Feeds without a charge.\43\ The Exchange 
represents that it does not charge Users that are third party markets 
or content providers for connectivity to their own feeds because such 
parties generally receive their own feeds for purposes of diagnostics 
and testing.\44\
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    \35\ See id.
    \36\ See id.
    \37\ See id.
    \38\ See id. There is one exception to this for the ICE feeds 
which include both market data and trading and clearing services. In 
order to receive the ICE feeds, a User must receive authorization 
from ICE to receive both market data and trading and clearing 
services. See id.
    \39\ See id.
    \40\ See id.
    \41\ See id.
    \42\ See id.
    \43\ See id. at 58996.
    \44\ See id. at 58997.
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Connectivity to Other Services

    As part of its data center offerings, the Exchange also seeks to 
provide access and connectivity to Third Party Systems/content service 
providers, the DTCC \45\ (collectively ``Service Providers''), third 
party certification and testing feeds,\46\ and Virtual Control Circuits 
\47\ (``VCCs'').\48\ The proposed rule change seeks to amend the Fee 
Schedules to add new fees for connectivity to these Service Providers 
and third party certification and testing feeds and to specify that 
connectivity is dependent on a User meeting the necessary technical 
requirements, paying the applicable fees, and the Exchange receiving 
authorization to establish a connection for a User.\49\ Similarly, the 
proposed rule change seeks to amend the Fee Schedules to add a new fee 
for connectivity for VCCs which will similarly require permission from 
the other User before the Exchange will establish the connection.\50\ 
Accordingly, the Exchange proposes to amend its Fee Schedules to add 
recurring monthly connectivity fees for Service Providers and VCCs 
based upon the bandwidth requirements per system and/or VCC connection 
between two Users.\51\ For third party certification and testing feeds, 
the Exchange proposes to revise its Fee Schedules to include a monthly 
recurring $100 fee per feed.\52\
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    \45\ ``Such connectivity to DTCC is distinct from the access to 
shared data services for clearing and settlement services that a 
User receives when it purchases access to the LCN or IP network. The 
shared data services allow Users and other entities with access to 
the Trading Systems to post files for settlement and clearing 
services to access.'' See id. at 58998 n. 33.
    \46\ Certification feeds certify that a User conforms to any of 
the relevant content service providers' requirements for accessing 
Third Party Systems or receiving Third Party Data, whereas testing 
feeds provide Users an environment in which to conduct system tests 
with non-live data. See id. at 58997.
    \47\ A VCC (previously called a ``peer to peer'' connection) is 
a two-way connection through which two participants can establish a 
connection between two points over dedicated bandwidth using the IP 
network to be used for any purpose. See id.
    \48\ See id. at 58995, 58997.
    \49\ See id.
    \50\ See id. at 58997.
    \51\ See id. at 58995, 58997.
    \52\ See id. at 58997.
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    For each service, a User must execute a contract with the 
respective Service Provider and/or third party certification and 
testing feed provider(s) pursuant to which a User pays each the 
associated fee(s) for their services.\53\ Once the Exchange receives 
authorization from the Service Provider and/or third party 
certification and testing feed provider(s), the Exchange will enable a 
User to connect to the Service Provider and/or third party 
certification and testing feed(s) over the IP Network.\54\ Similarly, 
with respect to VCCs, the Exchange will not establish a VCC connection 
over its IP Network until the other User confirms the VCC request.\55\ 
Finally, the Exchange notes, that its execution system does not provide 
access to Service Provider systems, nor do the Service Provider systems 
provide access to the Exchange's execution system.\56\
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    \53\ See id. at 58995, 58997.
    \54\ See id. For Third Party Systems, once the Exchange receives 
the authorization from the respective third party it establishes a 
unicast connection between the User and the relevant third party 
over the IP network. See id. at 58995. For the DTCC, ``[t]he 
Exchange receives the DTCC feed over its fiber optic network and, 
after DTCC and the User enter into the services contract and the 
Exchange receives authorization from DTCC, the Exchange provides 
connectivity to DTCC to the User over the User's IP network port.'' 
See id. at 58997.
    \55\ See id. at 58997.
    \56\ See id. at 58995, 58997.
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    As noted above, the Commission received one comment letter on a 
related filing which is equally applicable to this filing.\57\ This 
commenter (1) requested clarification about the history of the fees and 
``the increasing costs of maintaining the data center and providing co-
location compared to any related fee revenue'' and (2) expressed a 
concern about whether ``there are any true alternatives that are 
practically available to various types of participants who are seeking 
to compete with those who are paying exchanges for co-location and data 
services.'' \58\ Specifically, the commenter noted that the NYSE states 
that the connectivity fees are used to defray the costs associated with 
providing co-location to Users, but, the commenter questions whether 
the fees to cover the increasing costs of providing co-location are 
applied in an equitable manner.\59\ Moreover, with respect to 
alternatives, the commenter noted that broker-dealers face best 
execution obligations that are ``critically impacted by sub-millisecond 
differences in access to exchange systems and market data.'' \60\ As a 
result, market participants face the quandary of whether to trade from 
outside the data center if other members are trading from inside.\61\ 
Additionally, some broker-dealers trading for clients ``may be 
practically required to buy and consume proprietary market data feeds 
directly from exchanges in order to provide competitive products for 
those clients.'' \62\ The commenter believes that this environment 
``imposes a form of trading tax on all members by offering different 
methods of access to different members.'' \63\ The commenter questions 
whether true alternatives are available for participants seeking to 
compete with firms paying for exchange co-location and data services 
and whether the Exchange's ability to set fees is truly constrained by 
market forces for a ``comparable product''.\64\
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    \57\ See IEX Letter, supra note 4.
    \58\ See id. at 1-2.
    \59\ See id.
    \60\ See id. at 2.
    \61\ See id.
    \62\ See id.
    \63\ See id.
    \64\ See id.
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    As discussed above, the Exchange submitted a response to the 
commenter on the related filing.\65\ The Exchange in its Response 
Letter stated that historical information about the development of 
these product offerings is ``not required by the Act and is not 
relevant to [[hairsp]] the substance of the Proposal-which is, by 
definition, forward looking . . . .'' \66\ Additionally, the Response 
Letter noted that costs are not the only consideration in setting its 
prices, but rather the prices ``include the competitive landscape; 
whether Users would be required to utilize a given service; the 
alternatives available to Users; and, significantly, the benefits Users 
obtain from the services.'' \67\ With respect to the commenter's 
concern about members needing additional information to assess the 
fixed costs of exchange membership, the Exchange responded that these 
are not fixed costs of ``Exchange members'' but instead costs to any 
User who voluntarily chooses to purchase such services based upon 
``[t]he form and latency of access and connectivity that

[[Page 86053]]

bests suits a User's needs . . . .'' \68\ Users do not require the 
Exchange's access or connectivity to trade on the Exchange and can 
instead use alternative access and connectivity options for trading if 
they choose.\69\
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    \65\ See Response Letter, supra note 4.
    \66\ See id. at 2.
    \67\ See id.
    \68\ See id. at 4.
    \69\ See id.
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    In response to the commenter's argument regarding different methods 
of access to trading, the Exchange stated that ``it is a vendor of fair 
and non-discriminatory access, and like any vendor with multiple 
product offerings, different purchasers may make different choices 
regarding which products they wish to purchase.'' \70\ The Exchange 
further stated in response to the commenter's concern of a lack of true 
alternatives for a ``comparable product'', that the filing lists 
several alternative options for Users and a User can evaluate the 
``relative benefits of those alternatives and choose whichever it deems 
most beneficial to it . . . .'' \71\
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    \70\ See id. at 5. The Exchange makes a further argument about 
the Exchange being a regulated co-location space whereas other 
unregulated co-location options are available. See id.
    \71\ See id. at 6. The Exchange noted that it is not addressing 
the commenter's statements about broker-dealers needing to purchase 
market data from the Exchange as that is outside the scope of this 
proposal. See id. at 5 n.13.
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Amendment No. 1

    In Amendment No. 1, the Exchange offers additional justification 
for the proposed rule change.\72\ In Amendment No. 1, the Exchange 
addressed (1) the benefits offered by the Premium NYSE Data Products 
that are not present in the Included Data Products (2) how Premium NYSE 
Data Products are related to the purpose of co-location, (3) the 
similarity of charging for connectivity to Third Party Systems and DTCC 
and charging for connectivity to Premium NYSE Data Products and (4) the 
costs incurred by the Exchange in providing connectivity to Premium 
NYSE Data Products to Users in the data center.\73\ In the Amendment, 
the Exchange provided further detail on the benefits provided to Users 
through the Premium NYSE Data Products including ``depth of book order 
data (with add, modify and delete orders), trades (with corrections and 
cancel/errors), opening and closing imbalance data, security status 
updates (e.g., trade corrections and trading halts) and stock summary 
messages.'' \74\ The Exchange also clarified which costs are associated 
with providing Users with access and connectivity to the various 
services discussed in the filing, including the Premium NYSE Data 
Products.
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    \72\ See Amendment No. 1, supra note 6.
    \73\ See id.
    \74\ See id.; see also supra note 27 and accompanying text.
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III. Proceedings To Determine Whether To Disapprove SR-NYSEMKT-2016-63 
and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act \75\ to determine whether the proposed rule 
change, as modified by Amendment No. 1, should be approved or 
disapproved. Institution of such proceedings is appropriate at this 
time in view of the legal and policy issues raised by the proposed rule 
change, as modified by Amendment No. 1. Institution of proceedings does 
not indicate that the Commission has reached any conclusions with 
respect to any of the issues involved. Rather, as described below, the 
Commission seeks and encourages interested persons to provide comments 
on the proposed rule change, as modified by Amendment No. 1.
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    \75\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act, the Commission is 
providing notice of the following grounds for disapproval that are 
under consideration:
     Section 6(b)(4) of the Act, which requires that the rules 
of a national securities exchange ``provide for the equitable 
allocation of reasonable dues, fees, and other charges among its 
members and issuers and other persons using its facilities,'' \76\
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    \76\ 15 U.S.C. 78f(b)(4).
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     Section 6(b)(5) of the Act, which requires, among other 
things, that the rules of a national securities exchange be ``designed 
to perfect the operation of a free and open market and a national 
market system'' and ``protect investors and the public interest,'' and 
not be ``designed to permit unfair discrimination between customers, 
issuers, brokers, or dealers,'' \77\ and
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    \77\ 15 U.S.C. 78f(b)(5).
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     Section 6(b)(8) of the Act, which requires that the rules 
of a national securities exchange ``not impose any burden on 
competition not necessary or appropriate in furtherance of the purposes 
of [the Act].'' \78\
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    \78\ 15 U.S.C. 78f(b)(8).
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    As discussed above, the Exchange's proposal would, among other 
things, establish fees relating to a User's access to trading and 
execution services, connectivity to data feeds and to testing and 
certification feeds, connectivity to clearing, and other services. The 
Exchange believes that the proposed fees are consistent with Sections 
6(b)(4), (5), and (8) of the Act because the fees charged for co-
location services are constrained by the active competition for the 
order flow and other business from such market participants.\79\ The 
Exchange stated that charging excessive fees would make it stand to 
lose not only co-location revenues but also the liquidity of the 
formerly co-located trading firms.\80\ Additionally, the Exchange 
believes that because there are alternatives for a User both in and 
outside of the data center if it believes the fees are too excessive, 
the fees are consistent with the Act.\81\ Specifically, the Exchange 
noted that a User could terminate its co-location arrangement with the 
exchange ``and adopt a possible range of alternative strategies, 
including placing their servers in a physically proximate location 
outside the exchange's data center (which could be a competing 
exchange), or pursuing strategies less dependent upon the lower 
exchange-to-participant latency associated with co-location.'' \82\ 
Additionally, ``[a]s alternatives to using the Access and Connectivity 
provided by the Exchange, a User may access or connect to such services 
and products through another User or through a connection to an 
Exchange access center outside the data center, third party access 
center, or third party vendor. The User may make such connection 
through a third party telecommunication provider, third party wireless 
network, the SFTI network, or a combination thereof.'' \83\ However, 
the Exchange also stated that the expectation of co-location was that 
normally Users would expect reduced latencies in sending orders to the 
Exchange and in receiving market data from the Exchange by being co-
located.\84\ Therefore, as the Exchange states in Amendment No. 1, both 
Included Data Products and Premium NYSE Data Products are ``directly 
related to the purpose of co-location.'' \85\
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    \79\ See Notice, supra note 3, 81 FR at 58999.
    \80\ See id.
    \81\ See id.
    \82\ See id.
    \83\ See id.
    \84\ See id.
    \85\ See Amendment No. 1, supra note 6.
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    The commenter suggests that Users do not in fact have alternatives 
to paying the connectivity fee to obtain Premium NYSE Data 
Products.\86\ If these products are integral to co-located Users for 
trading on the Exchange, the Commission questions whether obtaining the 
information contained in these products from another source is, in 
fact, a viable alternative given the importance of receiving such 
information in a timely manner. The

[[Page 86054]]

Commission is concerned that the Exchange has not supported its 
argument that there are viable alternatives for Users inside the data 
center in lieu of obtaining such information from the Exchange. The 
Commission seeks comment on whether Users do have viable alternatives 
to paying the Exchange a connectivity fee for the Premium NYSE Data 
Products.
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    \86\ See IEX Letter, supra note 4.
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    Additionally, the Exchange states that both Included Data Products 
and Premium NYSE Data Products are ``directly related to the purpose of 
co-location.'' The Commission is concerned that the Exchange has not 
made clear why including the cost of connectivity to the Included Data 
Products in the purchase of a LCN or IP network connection and charging 
an additional fee to obtain the Premium NYSE Data Products is an 
equitable allocation of reasonable dues, fees, and other charges among 
Users in the data center; does not unfairly discriminate between 
customers, issuers, brokers, or dealers; and does not impose a burden 
on competition which is not necessary or appropriate in furtherance of 
the purposes of the Act. The Commission is concerned that the Exchange 
has not identified a distinction between the provision of connectivity 
to Included Data Products and the provision of connectivity to Premium 
NYSE Data Products, as opposed to a distinction between the utility of 
the Included Data Products and Premium NYSE Data Products to Users, 
which the Exchange has demonstrated, even though these are all NYSE 
proprietary data products. Therefore, the Commission is concerned that 
the Exchange has not identified a reasonable basis for charging Users a 
separate connectivity fee for the Premium NYSE Data Products while 
including connectivity in the purchase price for a LCN/IP network 
connection. The Exchange stated in its filing that both are ``directly 
related to the purpose of co-location'' but it has not clearly 
justified why this permits including the connectivity fee for Included 
Data Products as part of the LCN or IP Network connection, even for 
those Users that do not use the Included Data Products, but not 
including the connectivity fee for the Premium NYSE Data Products as 
well. Similarly, the Exchange justifies the costs associated with 
providing these feeds by stating ``[i]n order to offer connectivity to 
the Premium NYSE Data Products, the Exchange must provide, maintain and 
operate the data center facility hardware and technology 
infrastructure. The Exchange must handle the installation, 
administration, monitoring, support and maintenance of the 
connectivity, including by ensuring that the network infrastructure has 
the necessary bandwidth for the Premium NYSE Data Products and 
responding to any production issues.'' \87\ The Commission does not 
believe the Exchange has clearly explained why the same rationale would 
not apply to the Included Data Products. The Exchange has sought to 
justify this on the basis that the Premium NYSE Data Products are 
similar to any other service offered by the Exchange such as 
connectivity to Third Party Systems and DTCC.\88\ The Commission 
however is concerned that these Premium NYSE Data Products are similar 
to the Included Data Products and therefore should not include 
different fee structures as they are the same offering by the Exchange 
within the contemplated purpose of co-location. The Commission seeks 
comment on whether charging fees for connectivity to Included Data 
Products and Premium NYSE Data Products in a different manner is 
consistent with Section 6(b)(4) of the Act.
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    \87\ See Amendment No. 1, supra note 6.
    \88\ See id.
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Procedure: Request for Written Comments

    The Commission requests that interested persons provide written 
submissions of their views, data and arguments with respect to the 
concerns identified above, as well as any other concerns they may have 
with the proposed rule change, as modified by Amendment No. 1. In 
particular, the Commission invites the written views of interested 
persons concerning whether the proposal, as modified by Amendment No. 
1, is consistent with Sections 6(b)(4), (5), or (8) \89\ or any other 
provision of the Act, or the rules and regulations thereunder. Although 
there does not appear to be any issue relevant to approval or 
disapproval which would be facilitated by an oral presentation of 
views, data, and arguments, the Commission will consider, pursuant to 
Rule 19b-4 under the Act,\90\ any request for an opportunity to make an 
oral presentation.\91\
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    \89\ 15 U.S.C. 78f(b)(4), (b)(5) and (b)(8).
    \90\ 17 CFR 240.19b-4.
    \91\ Section 19(b)(2) of the Act, as amended by the Securities 
Act Amendments of 1975, Public Law 94-29 (June 4, 1975), grants to 
the Commission flexibility to determine what type of proceeding--
either oral or notice and opportunity for written comments--is 
appropriate for consideration of a particular proposal by a self-
regulatory organization. See Securities Act Amendments of 1975, 
Senate Comm. on Banking, Housing & Urban Affairs, S. Rep. No. 75, 
94th Cong., 1st Sess. 30 (1975).
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    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposal, as modified by Amendment No. 
1, should be approved or disapproved by December 20, 2016. Any person 
who wishes to file a rebuttal to any other person's submission must 
file that rebuttal by January 3, 2017. In light of the concerns raised 
by the proposed rule change, as discussed above, the Commission invites 
additional comment on the proposed rule change, as modified by 
Amendment No. 1, as the Commission continues its analysis of the 
proposed rule change's consistency with Sections 6(b)(4), (5) and 
(8),\92\ or any other provision of the Act, or the rules and 
regulations thereunder. The Commission asks that commenters address the 
sufficiency and merit of the Exchange's statements in support of the 
proposed rule change, as modified by Amendment No. 1, in addition to 
any other comments they may wish to submit about the proposed rule 
change.
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    \92\ 15 U.S.C. 78f(b)(4), (b)(5) and (b)(8).
---------------------------------------------------------------------------

    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 No. SR-NYSEMKT-2016-63 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 No. SR-NYSEMKT-2016-63. 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

[[Page 86055]]

business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of 
such 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 No. SR-NYSEMKT-2016-63, and should be submitted by December 20, 
2016. Rebuttal comments should be submitted by January 3, 2017.
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    \93\ 17 CFR 200.30-3(a)(57).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\93\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-28637 Filed 11-28-16; 8:45 am]
 BILLING CODE 8011-01-P