[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Notices]
[Pages 96140-96142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31471]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79654; File No. SR-Phlx-2016-122]


Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Modify 
Administrative Charges for Distributors of Proprietary Data Feed 
Products

December 22, 2016.
    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 December 14, 2016, NASDAQ PHLX LLC (``Phlx'' or ``Exchange'') filed 
with the Securities and Exchange Commission (``SEC'' or ``Commission'') 
the proposed rule change as described in Items I, II, and III below, 
which Items have been prepared by the Exchange. The Commission is 
publishing this notice to solicit comments on the proposed rule change 
from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the 
Substance of the Proposed Rule Change

    The Exchange proposes to amend the Exchange's Pricing Schedule 
under Section VIII, entitled ``NASDAQ PSX FEES,'' in the subsection 
currently entitled ``Annual Administrative Fee,'' to change the billing 
cycle for administrative fees paid by distributors of the Exchange's 
market data from annual to monthly, and to: (1) Replace the current 
$500 annual administrative fee assessed to distributors of delayed 
market data with a $50 monthly administrative fee, and (2) replace the 
current $1,000 annual administrative fee assessed to distributors of 
real-time market data with a $100 monthly administrative fee. The 
proposal is described further below.\3\
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    \3\ The NASDAQ Stock Market LLC and NASDAQ BX, Inc. are filing 
companion proposals similar to this one. All three proposals will 
change the billing cycle for administrative fees paid by 
distributors of market data from annual to monthly, and will: (1) 
Replace the current $500 annual administrative fee assessed to 
distributors of delayed market data with a $50 monthly 
administrative fee, and (2) replace the current $1,000 annual 
administrative fee assessed to distributors of real-time market data 
with a $100 monthly administrative fee.
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    While these amendments are effective upon filing, the Exchange has 
designated the proposed amendments to be operative on January 1, 2017.
    The text of the proposed rule change is available on the Exchange's 
Web site at http://nasdaqphlx.cchwallstreet.com/, at the principal 
office of the Exchange, and at the Commission's Public Reference Room.

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

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

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

1. Purpose
    The purpose of the proposed rule change is to change the billing 
cycle for administrative fees paid by distributors of the Exchange's 
market data from annual to monthly, and to: (1) Replace the current 
$500 annual administrative fee assessed to distributors of delayed 
market data with a $50 monthly administrative fee, and (2) replace the 
current $1,000 annual administrative fee assessed to distributors of 
real-time market data with a $100 monthly administrative fee.
Annual Administrative Fee
    The Exchange assesses an annual administrative fee to any market 
data distributor that receives any proprietary Exchange data feed 
product. The amount of that annual fee is $500 for delayed market data 
and $1,000 for real-time market data. Distributors of both delayed and 
real-time market data are not required to pay both fees; they are 
charged only the higher fee. The time difference between ``delayed'' 
and ``real-time'' data varies by product. PSX Basic, for example, is 
considered delayed after 15 minutes, while PSX TotalView-ITCH data is 
considered delayed after midnight ET. The specific delay interval 
applicable to each product is published on the Nasdaq Trader Web site. 
The fee is not prorated if the distributor receives the data feed for 
less than a year.
Proposed Changes
    The Exchange proposes to change the billing cycle for 
administrative fees paid by distributors of the Exchange's market data 
from annual to monthly, and to: (1) Replace the current $500 annual 
administrative fee assessed to distributors of delayed market data with 
a $50 monthly administrative fee, and (2) replace the current $1,000 
annual administrative fee assessed to distributors of real-time market 
data with a $100 monthly administrative fee.
    The purposes of the proposal are to: (1) Facilitate billing by 
aligning the current annual administrative fee billing cycle with the 
standard monthly billing cycle used by the Exchange; (2) allocate the 
fee more equitably by charging distributors that receive less than a 
year of market data an administrative fee only for those months that 
they receive market data; and (3) bring the Exchange's administrative 
fee into alignment with the Nasdaq and BX market data administrative 
fees, which, after current proposals take effect, will be charged the 
same administrative fees on the same billing cycle.
    The complexity of administering the Exchange's market data program 
has increased significantly since the current fee was set in November 
of 2011. New, more complex products and services require the Exchange 
to expend more resources in administration and

[[Page 96141]]

monitoring. For example, the introduction of Enhanced Display 
Solutions--which allow subscribers to view data from PSX TotalView on 
computer monitors and export it to applications--required the Exchange 
to create new reporting systems and review mechanisms for the use of 
market data. New reporting and review mechanisms also had to be created 
to implement Managed Data Solutions, which allow electronic systems 
access to PSX TotalView without human intervention. These programs were 
created in response to customer demand, and all require administrative 
expenditures that had not been necessary when the amount of the 
administrative fee was set in 2011.
    The administrative fee is entirely optional in that it applies only 
to firms that elect to distribute the Exchange's market data.
    The proposed changes do not raise the cost of any other product 
sold by the Exchange, except to the extent that they increase the total 
cost of purchasing market data.

2. Statutory Basis

    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\4\ in general, and furthers the objectives of Sections 
6(b)(4) and 6(b)(5) of the Act,\5\ in particular, in that it provides 
for the equitable allocation of reasonable dues, fees and other charges 
among members and issuers and other persons using any facility, and is 
not designed to permit unfair discrimination between customers, 
issuers, brokers, or dealers.
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    \4\ 15 U.S.C. 78f(b).
    \5\ 15 U.S.C. 78f(b)(4) and (5).
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    The Commission and the courts have repeatedly expressed their 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. In Regulation 
NMS, while adopting a series of steps to improve the current market 
model, the Commission highlighted the importance of market forces in 
determining prices and SRO revenues and, also, recognized that current 
regulation of the market system ``has been remarkably successful in 
promoting market competition in its broader forms that are most 
important to investors and listed companies.'' \6\
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    \6\ Securities Exchange Act Release No. 51808 (June 9, 2005), 70 
FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting 
Release'').
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    Likewise, in NetCoalition v. Securities and Exchange Commission \7\ 
(``NetCoalition'') the D.C. Circuit upheld the Commission's use of a 
market-based approach in evaluating the fairness of market data fees 
against a challenge claiming that Congress mandated a cost-based 
approach.\8\ As the court emphasized, the Commission ``intended in 
Regulation NMS that `market forces, rather than regulatory 
requirements' play a role in determining the market data . . . to be 
made available to investors and at what cost.'' \9\
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    \7\ NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \8\ See NetCoalition, at 534-535.
    \9\ Id. at 537.
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    Further, ``[n]o one disputes that competition for order flow is 
`fierce.' . . . As the SEC explained, `[i]n the U.S. national market 
system, buyers and sellers of securities, and the broker-dealers that 
act as their order-routing agents, have a wide range of choices of 
where to route orders for execution'; [and] `no exchange can afford to 
take its market share percentages for granted' because `no exchange 
possesses a monopoly, regulatory or otherwise, in the execution of 
order flow from broker dealers' . . . .'' \10\
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    \10\ Id. at 539 (quoting Securities Exchange Act Release No. 
59039 (December 2, 2008), 73 FR 74770, 74782-83 (December 9, 2008) 
(SR-NYSEArca 2006-21)).
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    The Exchange believes that the proposal to replace the current $500 
annual administrative fee assessed to distributors of delayed market 
data with a $50 monthly administrative fee, and the current $1,000 
annual administrative fee assessed to distributors of real-time data 
with a $100 monthly administrative fee, is fair and equitable in 
accordance with Section 6(b)(4) of the Act, and not unreasonably 
discriminatory in accordance with Section 6(b)(5) of the Act. As 
described above, the proposed fee change is reasonable and necessary to 
facilitate billing, allocate fees more equitably, and align the 
administrative charges for market data with those of the Nasdaq and BX 
exchanges. Moreover, administrative fees are constrained by the 
Exchange's need to compete for order flow.
    The Exchange believes that the proposed change is an equitable 
allocation and is not unfairly discriminatory because the Exchange will 
apply the same fee to all similarly-situated distributors.

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. In terms of inter-market 
competition, the Exchange notes that it operates in a highly 
competitive market in which market participants can readily favor 
competing venues if they deem fee levels at a particular venue to be 
excessive. In such an environment, the Exchange must continually adjust 
its fees to remain competitive with other exchanges and with 
alternative trading systems that have been exempted from compliance 
with the statutory standards applicable to exchanges. Because 
competitors are free to modify their own fees in response, and because 
market participants may readily adjust their order routing practices, 
the Exchange believes that the degree to which fee changes in this 
market may impose any burden on competition is extremely limited.
    The proposal is to replace the current $500 annual administrative 
fee assessed to distributors of delayed market data with a $50 monthly 
administrative fee, and the current $1,000 annual administrative fee 
assessed to distributors of real-time market data with a $100 monthly 
administrative fee. If the changes proposed herein are unattractive to 
market participants, it is likely that the Exchange will lose market 
share as a result.
    Specifically, market forces constrain administrative fees in three 
respects. First, all fees associated with proprietary data are 
constrained by competition among exchanges and other entities 
attracting order flow. Second, administrative fees impact the total 
cost of market data, and are constrained by the total cost of the 
market data offered by other entities. Third, competition among 
distributors constrains the total cost of market data, including 
administrative fees.
Competition for Order Flow
    Administrative fees are constrained by competition among exchanges 
and other entities seeking to attract order flow. Order flow is the 
``life blood'' of the exchanges. Broker-dealers currently have numerous 
alternative venues for their order flow, including thirteen self-
regulatory organization (``SRO'') markets, as well as internalizing 
broker-dealers (``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 Trade Reporting 
Facilities (``TRFs'') compete to attract internalized transaction 
reports. The existence of fierce competition for order flow implies a 
high degree of price sensitivity on the part of BDs, which may readily 
reduce costs by directing orders toward the lowest-cost trading venues.

[[Page 96142]]

    The level of competition and contestability in the market for order 
flow is demonstrated by the numerous 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 BATS/Direct Edge. A 
proliferation of dark pools and other ATSs operate profitably with 
fragmentary shares of consolidated market volume. For a variety of 
reasons, competition from new entrants, especially for order execution, 
has increased dramatically over the last decade.
    Each SRO, TRF, ATS, and BD that competes for order flow is 
permitted to produce proprietary data products. Many currently do or 
have announced plans to do so, including NYSE, NYSE Amex, NYSE Arca, 
BATS, and IEX. This is because Regulation NMS deregulated the market 
for proprietary data. While BDs had previously published their 
proprietary data individually, Regulation NMS encourages market data 
vendors and BDs to produce market data products cooperatively in a 
manner never before possible. Order routers and market data vendors can 
facilitate production of proprietary data products for single or 
multiple BDs. The potential sources of proprietary products are 
virtually limitless.
    The markets for order flow and market data are inextricably linked: 
A trading platform cannot generate market information unless it 
receives trade orders. As a result, the competition for order flow 
constrains the prices that platforms can charge for proprietary data 
products. Firms make decisions on how much and what types of data to 
consume based on the total cost of interacting with an exchange. 
Administrative fees are part of the total cost of proprietary data. A 
supracompetitive increase in the fees charged for either transactions 
or market data has the potential to impair revenues from both products.
Competition From Market Data Providers
    Administrative fees are constrained by competition from other 
exchanges that sell market data. If administrative fees were to become 
excessive, distributors may elect to discontinue one or two products or 
services purchased from the Exchange, or reduce the level of their 
purchases, to signal that the overall cost of market data had become 
excessive. Such a reduction in purchases would act as a discipline to 
the PSX administrative fees, and would constrain the Exchange in its 
pricing decisions.
Competition Among Distributors
    Distributors provide another form of price discipline for market 
data products. Distributors are in competition for users, and can 
curtail their purchases of market data if the total price of market 
data, including administrative fees, were set above competitive levels.
    In summary, market forces constrain the level of administrative 
fees through competition for order flow, competition from other sources 
of proprietary data, and in the competition among distributors for 
customers. For these reasons, the Exchange has provided a substantial 
basis demonstrating that the fee is equitable, fair, reasonable, and 
not unreasonably discriminatory, and therefore consistent with and in 
furtherance of the purposes of the Exchange Act.

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

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act.\11\
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    \11\ 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: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) 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-Phlx-2016-122 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-Phlx-2016-122. 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 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 Number SR-Phlx-2016-122, and should be 
submitted on or before January 19, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2016-31471 Filed 12-28-16; 8:45 am]
BILLING CODE 8011-01-P