[Federal Register Volume 84, Number 136 (Tuesday, July 16, 2019)]
[Notices]
[Pages 34030-34039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15026]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-86344; File No. SR-EMERALD-2019-24]
Self-Regulatory Organizations; MIAX Emerald, LLC; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt
System Connectivity Fees
July 10, 2019.
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 June 26, 2019, MIAX Emerald, LLC (``MIAX Emerald'' or ``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
The Exchange is filing a proposal to amend the MIAX Emerald Fee
Schedule (the ``Fee Schedule'') to adopt the Exchange's system
connectivity fees.
The Exchange previously filed the proposal on April 30, 2019 (SR-
EMERALD-2019-20). That filing has been withdrawn and replaced with the
current filing (SR-EMERALD-2019-24).
The text of the proposed rule change is available on the Exchange's
website at http://www.miaxoptions.com/rule-filings/emerald, at MIAX's
principal office, 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
[[Page 34031]]
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 Exchange proposes to amend the Fee Schedule regarding
connectivity to the Exchange. Specifically, the Exchange proposes to
amend Sections (5a) and (b) of the Fee Schedule to adopt the network
connectivity fees for the 1 Gigabit (``Gb'') fiber connection and the
10Gb ultra-low latency (``ULL'') fiber connection, which are charged to
both Members \3\ and non-Members of the Exchange for connectivity to
the Exchange's primary/secondary facility. The Exchange also proposes
to adopt network connectivity fees for the 1Gb and 10Gb fiber
connections for connectivity to the Exchange's disaster recovery
facility. Each of these connections (with the exception of the 10Gb
ULL) are shared connections (collectively, the ``Shared Connections''),
and thus can be utilized to access the Exchange and both of the
Exchange's affiliates, Miami International Securities Exchange, LLC
(``MIAX'') and MIAX PEARL, LLC (``MIAX PEARL''). The 10Gb ULL
connection is a dedicated connection (``Dedicated Connection''), which
provides network connectivity solely to the trading platforms, market
data systems, and test system facilities of MIAX Emerald. These
proposed fees are collectively referred to herein as the ``Proposed
Fees.'' The amounts of the Proposed Fees for the Shared Connections are
the same amounts that are currently in place at MIAX and MIAX PEARL.\4\
While the Exchange is new and only launched trading on March 1, 2019,
since: (i) All of the Proposed Fees (except for the fee relating to the
10Gb ULL connection) relate to Shared Connections, and thus are the
same amounts as are currently in place at MIAX and MIAX PEARL; (ii) all
of the Members of MIAX Emerald are also members of either MIAX and/or
MIAX PEARL, and most of those Members already have connectivity to the
Exchange via existing Shared Connections (without paying any new
incremental connectivity fees), the Exchange is providing similar
information to that which was provided in the MIAX and PEARL Fee
Filings, including providing detail about the market participants
impacted by the Proposed Fees, as well as the costs incurred by the
Exchange associated with providing the connectivity alternatives, in
order to provide transparency and support relating to the Exchange's
belief that the Proposed Fees are reasonable, equitable, and non-
discriminatory, and to provide sufficient information for the
Commission to determine that the Proposed Fees are consistent with the
Act.
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\3\ The term ``Member'' means an individual or organization
approved to exercise the trading rights associated with a Trading
Permit. Members are deemed ``members'' under the Exchange Act. See
Exchange Rule 100.
\4\ See SR-MIAX-2019-31 and SR-PEARL-2019-21 (the ``MIAX and
PEARL Fee Filings'').
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The Exchange initially filed the Proposed Fees on March 1, 2019,
designating the Proposed Fees immediately effective.\5\ The First
Proposed Rule Change was published for comment in the Federal Register
on March 20, 2019.\6\ The First Proposed Rule Change provided
information about the market participants impacted by the Proposed
Fees, as well as the additional costs incurred by the Exchange
associated with providing the connectivity alternatives, in order to
provide transparency and support relating to the Exchange's belief that
the Proposed Fees are reasonable, equitable, and non-discriminatory,
and to provide sufficient information for the Commission to determine
that the Proposed Fees are consistent with the Act.
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\5\ See Securities Exchange Act Release No. 85316 (March 14,
2019), 84 FR 10350 (March 20, 2019) (SR-EMERALD-2019-11) (the
``First Proposed Rule Change'').
\6\ Id.
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On March 29, 2019, the Commission issued its Order Disapproving
Proposed Rule Changes to Amend the Fee Schedule on the BOX Market LLC
Options Facility to Establish BOX Connectivity Fees for Participants
and Non-Participants Who Connect to the BOX Network (the ``BOX
Order'').\7\ In the BOX Order, the Commission highlighted a number of
deficiencies it found in three separate rule filings by BOX Exchange
LLC (``BOX'') to increase BOX's connectivity fees that prevented the
Commission from finding that BOX's proposed connectivity fees were
consistent with the Act. These deficiencies relate to topics that the
Commission believes should be discussed in a connectivity fee filing.
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\7\ See Securities Exchange Act Release No. 85459 (March 29,
2019), 84 FR 13363 (April 4, 2019) (SR-BOX-2018-24, SR-BOX-2018-37,
and SR-BOX-2019-04).
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After the BOX Order was issued, the Commission received four
comment letters on the First Proposed Rule Change.\8\
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\8\ See Letter from Joseph W. Ferraro III, SVP & Deputy General
Counsel, MIAX, to Vanessa Countryman, Acting Secretary, Commission,
dated April 5, 2019 (``MIAX Letter''); Letter from Theodore R. Lazo,
Managing Director and Associate General Counsel, SIFMA, to Vanessa
Countryman, Acting Secretary, Commission, dated April 10, 2019
(``Second SIFMA Letter''); Letter from John Ramsay, Chief Market
Policy Officer, Investors Exchange LLC, to Vanessa Countryman,
Acting Secretary, Commission, dated April 10, 2019 (``IEX Letter'');
and Letter from Tyler Gellasch, Executive Director, Healthy Markets,
to Brent J. Fields, Secretary, Commission, dated April 18, 2019
(``Second Healthy Markets Letter'').
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The Second SIFMA Letter argued that the Exchange did not provide
sufficient information in its First Proposed Rule Change to support a
finding that the proposal should be approved by the Commission after
further review of the Proposed Fees. Specifically, the Second SIFMA
Letter argued that the Exchange's market data fees and connectivity
fees were not constrained by competitive forces, the Exchange's filing
lacked sufficient information regarding cost and competition, and that
the Commission should establish a framework for determining whether
fees for exchange products and services are reasonable when those
products and services are not constrained by significant competitive
forces.
The IEX Letter argued that the Exchange did not provide sufficient
information in its First Proposed Rule Change to support a finding that
the proposal should be approved by the Commission and that the
Commission should extend the time for public comment on the First
Proposed Rule Change. Despite the objection to the Proposed Fees, the
IEX Letter did find that ``MIAX has provided more transparency and
analysis in these filings than other exchanges have sought to do for
their own fee increases.'' \9\ The IEX Letter specifically argued that
the Proposed Fees were not constrained by competition, the Exchange
should provide data on the Exchange's actual costs and how those costs
relate to the product or service in question, and whether and how MIAX
Emerald and its affiliates considered changes to transaction fees as an
alternative to offsetting exchange costs.
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\9\ See IEX Letter, pg. 1.
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The Second Healthy Markets Letter did not object to the First
Proposed Rule Change and the information provided by the Exchange in
support of the Proposed Fees. Specifically, the Second Healthy Markets
Letter stated that the First Proposed Rule Change was ``remarkably
[[Page 34032]]
different,'' and went on to further state as follows:
The instant MIAX filings--along with their April 5th supplement--
provide much greater detail regarding users of connectivity, the market
for connectivity, and costs than the Initial MIAX Filings. They also
appear to address many of the issues raised by the Commission staff's
BOX disapproval order. This third round of MIAX filings suggests that
MIAX is operating in good faith to provide what the Commission and
staff seek.\10\
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\10\ See Second Healthy Markets Letter, pg. 2.
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On April 29, 2019, the Exchange withdrew the First Proposed Rule
Change.\11\
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\11\ See SR-EMERALD-2019-11.
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The Exchange refiled the Proposed Fees on April 30, 2019,
designating the Proposed Fees immediately effective.\12\ The Second
Proposed Rule Change was published for comment in the Federal Register
on May 16, 2019.\13\ The Second Proposed Rule Change provided further
cost analysis information to squarely and comprehensively address each
and every topic raised for discussion in the BOX Order, the IEX Letter
and the Second SIFMA Letter to ensure that the Proposed Fees are
reasonable, equitable, and non-discriminatory, and that the Commission
should find that the Proposed Fees are consistent with the Act.
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\12\ See Securities Exchange Act Release No. 85839 (May 10,
2019), 84 FR 22192 (May 16, 2019) (SR-EMERALD-2019-20) (the ``Second
Proposed Rule Change'') (Notice of Filing and Immediate
Effectiveness of a Proposed Rule Change To Adopt System Connectivity
Fees).
\13\ Id.
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On May 21, 2019, the Commission issued the Staff Guidance on SRO
Rule Filings Relating to Fees (the ``Guidance'').\14\
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\14\ See Staff Guidance on SRO Rule Filings Relating to Fees
(May 21, 2019), at https://www.sec.gov/tm/staff-guidance-sro-rule-filings-fees.
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The Commission received two comment letters on the Second Proposed
Rule Change, after the Guidance was released.\15\ The Second IEX Letter
and the Third SIFMA Letter argued that the Exchange did not provide
sufficient information in its Second Proposed Rule Change to justify
the Proposed Fees based on the Guidance and the BOX Order. Of note,
however, is that unlike their previous comment letter, the Third SIFMA
Letter did not call for the Commission to suspend the Second Proposed
Rule Change. Also, Healthy Markets did not comment on the Second
Proposed Rule Change.
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\15\ See Letter from John Ramsay, Chief Market Policy Officer,
Investors Exchange LLC, to Vanessa Countryman, Acting Secretary,
Commission, dated June 5, 2019 (the ``Second IEX Letter'') and
Letter from Theodore R. Lazo, Managing Director and Associate
General Counsel, and Ellen Greene, Managing Director, SIFMA, to
Vanessa Countryman, Acting Secretary, Commission, dated June 6, 2019
(the ``Third SIFMA Letter'').
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The Exchange is now re-filing the Proposed Fees (the ``Third
Proposed Rule Change'') to bolster its cost-based discussion to support
its claim that the Proposed Fees are fair and reasonable because they
will permit recovery of the Exchange's costs and will not result in
excessive pricing or supracompetitive profit, in light of the Guidance
issued by Commission staff subsequent to the Second Proposed Rule
Change. The Exchange believes that the Proposed Fees are consistent
with the Act because they (i) are reasonable, equitably allocated, not
unfairly discriminatory, and not an undue burden on competition; (ii)
comply with the BOX Order and the Guidance; (iii) are, as demonstrated
in the Third Proposed Rule Change and supported by evidence (including
data and analysis), constrained by significant competitive forces; and
(iv) are, as demonstrated in the Third Proposed Rule Change and
supported by specific information (including quantitative information),
fair and reasonable because they will permit recovery of the Exchange's
costs and will not result in excessive pricing or supracompetitive
profit. Accordingly, the Exchange believes that the Commission should
find that the Proposed Fees are consistent with the Act. The proposed
rule change is immediately effective upon filing with the Commission
pursuant to Section 19(b)(3)(A) of the Act.
The Exchange offers to both Members and non-Members various
bandwidth alternatives for connectivity to the Exchange, to its primary
and secondary facilities, consisting of a 1Gb fiber connection and a
10Gb ULL fiber connection. The 10Gb ULL offering uses an ultra-low
latency switch, which provides faster processing of messages sent to it
in comparison to the switch used for the other types of connectivity.
The Exchange also offers to both Members and non-Members various
bandwidth alternatives for connectivity to the Exchange, to its
disaster recovery facility, consisting of a 1Gb fiber connection and a
10Gb connection.
For the Shared Connections, the Exchange's MIAX Express Network
Interconnect (``MENI'') can be configured to provide Members and non-
Members of the Exchange network connectivity to the trading platforms,
market data systems, test systems, and disaster recovery facilities of
the Exchange and its affiliates, MIAX and MIAX PEARL, via a single,
shared connection. Any Member or non-Member can purchase a Shared
Connection.
For the Dedicated Connection, the Exchange's MENI is configured to
provide Members and non-Members of the Exchange network connectivity to
the trading platforms, market data systems, test systems, and disaster
recovery facilities of the Exchange. Any Member or non-Member can
purchase a Dedicated Connection. The Exchange determined to design its
network architecture in a manner that offered 10Gb ULL connections as
dedicated connections (as opposed to shared connections) in order to
provide cost saving opportunities for itself and for its Members, by
reducing the amount of equipment that the Exchange would have to
purchase and to which the Members would have to connect. Accordingly,
the Exchange is able to offer to its Members 10Gb ULL connectivity at a
lower price point than is offered on MIAX and MIAX PEARL, the price
difference being reflective of the lower cost to the Exchange.
For the Shared Connections, Members and non-Members utilizing the
MENI to connect to the trading platforms, market data systems, test
systems and disaster recovery facilities of the Exchange, MIAX, and
MIAX PEARL via a single, shared connection are assessed only one
monthly network connectivity fee per connection, regardless of the
trading platforms, market data systems, test systems, and disaster
recovery facilities accessed via such connection. Thus, since all of
the Members of MIAX Emerald are also members of either MIAX and/or MIAX
PEARL, and most of those Members already have connectivity to the
Exchange via existing Shared Connections, most Members of MIAX Emerald
have instant connectivity to the Exchange without paying any new
incremental connectivity fees, as more fully-detailed below.
The Exchange proposes to establish the monthly network connectivity
fees for such connections for both Members and non-Members. As
discussed above, the amounts of the Proposed Fees for the Shared
Connections are the same amounts that are currently in place at MIAX
and MIAX PEARL. The amount of the Proposed Fee for the Dedicated
Connection is offered at a substantial discount to the amount currently
in place at MIAX and MIAX PEARL. The reasons for the substantial
discount are that the Dedicated Connection offers access to only a
single market (the Exchange), whereas the 10Gb ULL connection offered
by MIAX and MIAX PEARL offers access to two markets
[[Page 34033]]
(MIAX and MIAX PEARL), as well as cost savings the Exchange was able to
achieve (and thus pass through to its Members) as a result of a
dedicated architecture. The network connectivity fees for connectivity
to the Exchange's primary/secondary facility will be as follows: (a)
1,400 for the 1Gb connection; and (b) $6,000 for the 10Gb ULL
connection. The network connectivity fees for connectivity to the
Exchange's disaster recovery facility will be as follows: (a) $550 for
the 1Gb connection; and (b) $2,750 for the 10Gb connection.
2. Statutory Basis
The Exchange believes that its proposal to amend its Fee Schedule
is consistent with Section 6(b) of the Act \16\ in general, and
furthers the objectives of Section 6(b)(4) of the Act \17\ in
particular, in that it provides for the equitable allocation of
reasonable dues, fees and other charges among Exchange Members and
issuers and other persons using any facility or system which the
Exchange operates or controls. The Exchange also believes the proposal
furthers the objectives of Section 6(b)(5) of the Act \18\ in that it
is designed to promote just and equitable principles of trade, to
remove impediments to and perfect the mechanism of a free and open
market and a national market system, and, in general to protect
investors and the public interest and is not designed to permit unfair
discrimination between customer, issuers, brokers and dealers.
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\16\ 15 U.S.C. 78f(b).
\17\ 15 U.S.C. 78f(b)(4).
\18\ 15 U.S.C. 78f(b)(5).
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The Commission has repeatedly expressed its preference for
competition over regulatory intervention in determining prices,
products, and services in the securities markets. In Regulation NMS,
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.'' \19\
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\19\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496 (June 29, 2005).
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First, the Exchange believes that its proposal is consistent with
Section 6(b)(4) of the Act, in that the Proposed Fees are fair,
equitable and not unreasonably discriminatory, because the fees for the
connectivity alternatives available on the Exchange, as proposed, are
constrained by significant competitive forces. The U.S. options markets
are highly competitive (there are currently 16 options markets) and a
reliance on competitive markets is an appropriate means to ensure
equitable and reasonable prices.
The Exchange acknowledges that there is no regulatory requirement
that any market participant connect to the Exchange, or that any
participant connect at any specific connection speed. The rule
structure for options exchanges are, in fact, fundamentally different
from those of equities exchanges. In particular, options market
participants are not forced to connect to (and purchase market data
from) all options exchanges, as shown by the number of Members of MIAX
Emerald as compared to the much greater number of members at other
options exchanges (as further detailed below). MIAX Emerald is a brand
new exchange, having only commenced operations in March 2019. Not only
does MIAX Emerald have less than half the number of members as certain
other options exchanges, but there are also a number of the Exchange's
Members that do not connect directly to MIAX Emerald. Further, of the
number of Members that connect directly to MIAX Emerald, many such
Members do not purchase market data from MIAX Emerald. There are a
number of large market makers and broker-dealers that are members of
other options exchanges but not Members of MIAX Emerald. For example,
the following are not Members of MIAX Emerald: The D. E. Shaw Group,
CTC, XR Trading LLC, Hardcastle Trading AG, Ronin Capital LLC,
Belvedere Trading, LLC, Bluefin Trading, and HAP Capital LLC. In
addition, of the market makers that are connected to MIAX Emerald, it
is the individual needs of the market maker that require whether they
need one connection or multiple connections to the Exchange. The
Exchange has market maker Members that only purchase one connection and
the Exchange has market maker Members that purchase multiple
connections. It is all driven by the business needs of the market
maker. Market makers that are consolidators that target resting order
flow tend to purchase more connectivity than market makers that simply
quote all symbols on the Exchange. Even though non-Members purchase and
resell 10Gb ULL connections to both Members and non-Members, no market
makers currently connect to the Exchange indirectly through such
resellers.
SIFMA's argument that all broker-dealers are required to connect to
all exchanges is not true in the options markets. The options markets
have evolved differently than the equities markets both in terms of
market structure and functionality. For example, there are many order
types that are available in the equities markets that are not utilized
in the options markets, which relate to mid-point pricing and pegged
pricing which require connection to the SIPs and each of the equities
exchanges in order to properly execute those orders in compliance with
best execution obligations. In addition, in the options markets there
is a single SIP (OPRA) versus two SIPs in the equities markets,
resulting in fewer hops and thus alleviating the need to connect
directly to all the options exchanges. Additionally, in the options
markets, the linkage routing and trade through protection are handled
by the exchanges, not by the individual members. Thus not connecting to
an options exchange or disconnecting from an options exchange does not
potentially subject a broker-dealer to violate order protection
requirements as suggested by SIFMA. Gone are the days when the retail
brokerage firms (the Fidelity's, the Schwab's, the eTrade's) were
members of the options exchanges--they are not members of MIAX Emerald
or its affiliates, MIAX and MIAX PEARL, they do not purchase
connectivity to MIAX Emerald, and they do not purchase market data from
MIAX Emerald. The Exchange further recognizes that the decision of
whether to connect to the Exchange is separate and distinct from the
decision of whether and how to trade on the Exchange. The Exchange
acknowledges that many firms may choose to connect to the Exchange, but
ultimately not trade on it, based on their particular business needs.
To assist prospective Members or firms considering connecting to
MIAX Emerald, the Exchange provides information about the Exchange's
available connectivity alternatives in a Connectivity Guide, which
contains detailed specifications regarding, among other things,
throughput and latency for each available connection.\20\ The decision
of which type of connectivity to purchase, or whether to purchase
connectivity at all for a particular exchange, is based on the business
needs of the firm. For example, if the firm wants to receive the top-
of-market data feed product or depth data feed product, due to the
amount/size of data contained in those feeds, such firm would need to
purchase a 10Gb ULL
[[Page 34034]]
connection. The 1Gb connection is too small to support those data feed
products. MIAX Emerald notes that there are twelve (12) Members that
only purchase the 1Gb connectivity alternative. Thus, while there is a
meaningful percentage of purchasers of only 1Gb connections (12 of 33),
by definition, those twelve (12) members purchase connectivity that
cannot support the top-of-market data feed product or depth data feed
product and thus they do not purchase such data feed products.
Accordingly, purchasing market data is a business decision/choice, and
thus the pricing for it is constrained by competition.
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\20\ See the MIAX Connectivity Guide at https://www.miaxoptions.com/sites/default/files/page-files/MIAX_Connectivity_Guide_v3.6_01142019.pdf.
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Contrary to SIFMA's argument, there is competition for connectivity
to MIAX Emerald and its affiliates. MIAX Emerald competes with eight
(8) non-Members, who resell MIAX Emerald connectivity. These are
resellers of MIAX Emerald connectivity--they are not arrangements
between broker-dealers to share connectivity costs, as SIFMA suggests.
Those non-Members resell that connectivity to multiple market
participants over that same connection, including both Members and non-
Members of MIAX Emerald (typically extranets and service bureaus). When
connectivity is re-sold by a third-party, MIAX Emerald does not receive
any connectivity revenue from that sale. It is entirely between the
third-party and the purchaser, thus constraining the ability of MIAX
Emerald to set its connectivity pricing as indirect connectivity is a
substitute for direct connectivity. In fact, there are currently seven
(7) non-Members that purchase 1Gb direct connectivity that are able to
access MIAX Emerald, MIAX and MIAX PEARL. Those non-Members resell that
connectivity to eight (8) customers, some of whom are agency broker-
dealers that have tens of customers of their own. Some of those eight
(8) customers also purchase connectivity directly from MIAX Emerald
and/or its affiliates, MIAX and MIAX PEARL. Accordingly, indirect
connectivity is a viable alternative used by non-Members of MIAX
Emerald, constraining the price that MIAX Emerald is able to charge for
connectivity to its Exchange.
The Exchange,\21\ MIAX,\22\ and MIAX PEARL \23\ are comprised of 41
distinct members amongst all three exchanges, excluding any additional
affiliates of such members that are also members of the Exchange, MIAX,
MIAX PEARL, or any combination thereof. Of those 41 distinct members,
28 of those distinct members are Members of MIAX Emerald. (Currently,
there are no Members of MIAX Emerald that are not also members of MIAX
or MIAX PEARL, or both.) Of those 28 distinct Members of MIAX Emerald,
there are 6 Members that have no connectivity to the Exchange. Members
are not forced to purchase connectivity to the Exchange, and these
Members have elected not to purchase such connectivity. Of note, these
same 6 Members also do not have connectivity to either MIAX or MIAX
PEARL. These Members either trade indirectly through other Members or
non-Members that have connectivity to the Exchange, or do not trade and
conduct another type of business on the Exchange. Of the remaining 22
distinct Members of MIAX Emerald, all 22 of those distinct Members
already had connectivity to the Exchange via existing Shared
Connections, thus providing all such 22 MIAX Emerald Members with
instant connectivity to the Exchange without paying any new incremental
connectivity fees.
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\21\ The Exchange has 28 distinct Members, excluding affiliated
entities. See MIAX Emerald Exchange Member Directory, available at
https://www.miaxoptions.com.
\22\ MIAX has 38 distinct Members, excluding affiliated
entities. See MIAX Exchange Member Directory, available at https://www.miaxoptions.com.
\23\ MIAX PEARL has 36 distinct Members, excluding affiliated
entities. See MIAX PEARL Exchange Member Directory, available at
https://www.miaxoptions.com.
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Further, of those 22 Members, 14 of such Members elected to
purchase additional connectivity to the Exchange, including additional
Shared Connections and additional Dedicated Connections. The Exchange
made available in advance to all of its prospective Members its
proposed connectivity pricing (subject to regulatory clearance), in
order for those prospective Members to make an informed decision about
whether to become a Member of the Exchange and whether to purchase
connectivity to the Exchange. Accordingly, each such Member made the
decision to become a Member of the Exchange and to purchase
connectivity to the Exchange, knowing in advance the connectivity
pricing. And the vast majority of the additional connectivity purchased
by those Members were for Dedicated Connections, the most expensive
connectivity option.
As a result, of those 22 Members, through existing Shared
Connections, newly purchased Shared Connections, and newly purchased
Dedicated Connections: 14 Members have 1Gb (primary/secondary)
connections; 13 Members have 10Gb ULL (primary/secondary) connections;
3 Members have 10Gb (disaster recovery) connections; and 10 Members
have 1Gb (disaster recovery) connections, or some combination of
multiple various connections. All such Members with those Shared
Connections and Dedicated Connections trade on MIAX Emerald.
The 6 Members who have not purchased any connectivity to the
Exchange are still able to trade on the Exchange indirectly through
other Members or non-Member service bureaus that are connected. These 6
Members who have not purchased connectivity are not forced or compelled
to purchase connectivity, and they retain all of the other benefits of
membership with the Exchange. Accordingly, Members have the choice to
purchase connectivity and are not compelled to do so in any way.
In addition, there are 5 non-Member service bureaus that already
have connectivity to the Exchange via existing Shared Connections, thus
providing all 5 of those non-Member service bureaus with instant
connectivity to the Exchange without paying any new incremental
connectivity fees. These non-Members freely purchased their
connectivity from one of the Exchange's affiliates, either MIAX or MIAX
PEARL, in order to offer trading services to other firms and customers,
as well as access to the market data services that their connections to
the Exchange provide them, but they are not required or compelled to
purchase any of the Exchange's connectivity options.
The Exchange believes that the Proposed Fees are fair, equitable
and not unreasonably discriminatory because the connectivity pricing is
associated with relative usage of the various market participants and
does not impose a barrier to entry to smaller participants.
Accordingly, the Exchange offers two direct connectivity alternatives
and various indirect connectivity (via third-party) alternatives, as
described above. MIAX Emerald recognizes that there are various
business models and varying sizes of market participants conducting
business on the Exchange. The 1Gb direct connectivity alternative is 1/
10th the size of the 10Gb ULL direct connectivity alternative. Because
it is 1/
[[Page 34035]]
10th of the size, it does not offer access to many of the products and
services offered by the Exchange, such as the ability to quote or
receive certain market data products. Thus, the value of the 1Gb
alternative is much lower than value of a 10Gb ULL alternative, when
measured based on the type of Exchange access it offers, which is the
basis for difference in price between a 1Gb connection and a 10Gb ULL
connection. Approximately just less than half of MIAX Emerald, MIAX and
MIAX PEARL Members that connect (15 out of 33) purchase 1Gb
connections. The 1Gb direct connection can support the sending of
orders and the consumption of all market data feed products, other than
the top-of-market data feed product or depth data feed product (which
require a 10Gb connection). The 1Gb direct connection is generally
purchased by market participants that utilize less bandwidth. The
market participants that purchase 10Gb ULL direct connections utilize
the most bandwidth, and those are the participants that consume the
most resources from the network. Accordingly, the Exchange believes the
allocation of the Proposed Fees ($6,000 for a 10Gb ULL connection
versus $1,400 for a 1Gb connection) are reasonable based on the network
resources consumed by the market participants--lowest bandwidth
consuming members pay the least, and highest bandwidth consuming
members pays the most, particularly since higher bandwidth consumption
translates to higher costs to the Exchange. The 10Gb ULL connection
offers optimized connectivity for latency sensitive participants. This
lower latency is achieved through more advanced network equipment, such
as advanced hardware and switching components, which translates to
increased costs to the Exchange.
The Exchange launched trading on March 1, 2019. Thus, at the time
that the 14 Members who elected to purchase connectivity to the
Exchange, the Exchange was untested and unproven, and had 0% market
share of the U.S. options industry. For May 2019, the Exchange had only
a 0.77% market share of the U.S. options industry in Equity/ETF classes
according to the OCC.\24\ For May 2019, the Exchange's affiliate, MIAX,
had only 3.75% market share of the U.S. options industry in May 2019 in
Equity/ETF classes according to the OCC.\25\ For May 2019, the
Exchange's affiliate, MIAX PEARL, had only 4.8% market share of the
U.S. options industry in Equity/ETF classes according to the OCC.\26\
The Exchange is not aware of any evidence that a combined market share
less than 10% provides the Exchange with anti-competitive pricing
power. This, in addition to the fact that not all broker-dealers are
required to connect to all options exchanges, supports the Exchange's
conclusion that its pricing is constrained by competition. Certainly,
an untested and unproven exchange, with less than 1% market share in
any month, and no rule or requirement that a market participant must
join or connect to it, does not have anti-competitive pricing power,
with respect to setting the pricing for the Dedicated Connections or
the Shared Connections. If the Exchange were to attempt to establish
unreasonable connectivity pricing, then no market participant would
join or connect. Therefore, since 28 distinct Members joined MIAX
Emerald and 14 of those distinct Members purchased additional
connectivity to the Exchange, all knowing, in advance, the connectivity
fees, the Exchange believes the Proposed Fees are reasonable,
equitable, and not unfairly discriminatory.
---------------------------------------------------------------------------
\24\ See Exchange Market Share of Equity Products--2019, The
Options Clearing Corporation, available at https://www.theocc.com/webapps/exchange-volume.
\25\ Id.
\26\ Id.
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Separately, the Exchange is not aware of any reason why market
participants could not simply drop their connections and cease being
Members of the Exchange if the Exchange were to establish unreasonable
and uncompetitive price increases for its connectivity alternatives.
Market participants choose to connect to a particular exchange and
because it is a choice, MIAX Emerald must set reasonable connectivity
pricing, otherwise prospective members would not connect and existing
members would disconnect or connect through a third-party reseller of
connectivity. No options market participant is required by rule,
regulation, or competitive forces to be a Member of the Exchange.
Several market participants choose not to be Members of the Exchange
and choose not to access the Exchange, and several market participants
are proposing to access the Exchange indirectly through another market
participant. To illustrate, the Exchange has only 34 total Members
(including all such Members' affiliate Members).
However, Cboe Exchange, Inc. (``Cboe'') has over 200 members,\27\
Nasdaq ISE, LLC has approximately 100 members,\28\ and NYSE American
LLC has over 80 members.\29\ If all market participants were required
to be Members of the Exchange and connect directly to the Exchange, the
Exchange would have over 200 Members, in line with Cboe's total
membership. But it does not. The Exchange only has 34 Members.
---------------------------------------------------------------------------
\27\ See Form 1/A, filed August 30, 2018 (https://www.sec.gov/Archives/edgar/vprr/1800/18002831.pdf); Form 1/A, filed August 30,
2018 (https://www.sec.gov/Archives/edgar/vprr/1800/18002833.pdf);
Form 1/A, filed July 24, 2018 (https://www.sec.gov/Archives/edgar/vprr/1800/18002781.pdf); Form 1/A, filed August 30, 2018 (https://www.sec.gov/Archives/edgar/data/1473845/999999999718007832/9999999997-18-007832-index.htm).
\28\ See Form 1/A, filed July 1, 2016 (https://www.sec.gov/Archives/edgar/vprr/1601/16019243.pdf).
\29\ See https://www.nyse.com/markets/american-options/membership#directory.
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Further, since there are 41 distinct members amongst all three
exchanges, and only 28 of those distinct members decided to become
Members of MIAX Emerald, there were 13 distinct members that decided
not to become Members of MIAX Emerald. This further reinforces the fact
that all market participants are not required to be Members of the
Exchange and are not required to connect to the Exchange. It is a
choice whether to join and it is a choice to connect. Therefore, the
Exchange believes that the Proposed Fees are fair, equitable, and non-
discriminatory, as the fees are competitive.
With respect to the now MIAX Emerald Members that had Shared
Connections in place as of August 1, 2018 (via a previously purchased
Shared Connection from MIAX or MIAX PEARL), the Exchange finds it
compelling that all of those Members continued to purchase those Shared
Connections after August 1, 2018, when MIAX and MIAX PEARL increased
the connectivity fees for the Shared Connections to the current amounts
proposed by the Exchange herein. In particular, the Exchange believes
that the Proposed Fees for the Shared Connections are reasonable
because MIAX and MIAX PEARL, which charge the same amount for the
Shared Connections, did not lose any Members (or the number of Shared
Connections each Member purchased) or non-Member Shared Connections
when MIAX and MIAX PEARL proposed to increase the connectivity fees for
the Shared Connections on August 1, 2018. For example, with respect to
the Shared Connections maintained by now Members of MIAX Emerald who
had Shared Connections in place as of July 2018, 12 Members purchased
1Gb connections. The vast majority of those Members purchased multiple
such
[[Page 34036]]
connections, the number of connections depending on their throughput
requirements based on the volume of their quote/order traffic and
market data needs associated with their business model. After the fee
increase, beginning August 1, 2018, the same 12 Members purchased 1Gb
connections. Furthermore, the total number of connections did not
decrease from July to August.
Further, with respect to the Shared Connections maintained by now
Members of MIAX Emerald who had Shared Connections in place as of July
2018, of those Members and non-Members that bought multiple
connections, no firm dropped any connections beginning August 1, 2018,
when MIAX and MIAX PEARL increased its fees. Furthermore, the Exchange
understands that MIAX and MIAX PEARL did not receive any official
comment letters or complaints from any now Members of MIAX Emerald who
had Shared Connections in place as of July 2018 regarding the increased
fees regarding how the change was unreasonable, unduly burdensome, or
would negatively impact their competitiveness amongst other market
participants. These facts, coupled with the discussion above, showing
that it is not necessary to join and/or connect to all options
exchanges, demonstrate that the Exchange's fees are constrained by
competition and are reasonable and not contrary to the Law of Demand as
SIFMA suggests. Therefore, the Exchange believes that the Proposed Fees
are fair, equitable, and non-discriminatory, as the fees are
competitive.
The Exchange believes that the Proposed Fees are equitably
allocated among Members and non-Members, as evidenced by the fact that
the fees are allocated across all connectivity alternatives, and there
is not a disproportionate number of Members purchasing any alternative
-14 Members have 1Gb (primary/secondary) connections; 14 Members have
10Gb ULL (primary/secondary) connections; 3 Members have 10Gb (disaster
recovery) connections; and 11 Members have 1Gb (disaster recovery)
connections, or some combination of multiple various connections.
Further, the Exchange believes that the fees are reasonably allocated
as the users of the higher bandwidth connections consume the most
resources of the Exchange's network. It is these firms that account
that also account for the vast majority of the Exchange's trading
volume. The purchasers of the 10Gb ULL connectivity account for
approximately 80% of the volume on the Exchange. For example, in June
of 2019, to date, 3.1 million contracts of the 3.8 million contracts
executed were done by the top market making firms on the Exchange in
simple (non-complex) volume. The Exchange considered whether to
increase transaction fees and other fees in order to offset its costs
as an alternative to establishing connectivity fees, however, the
Exchange determined that establishing its connectivity fees was the
only viable alternative. This is because the costs are more closely
associated with connectivity, as well as the intense level of
competition among the options exchanges for order flow through
transaction fees.
Second, the Exchange believes that its proposal is consistent with
Section 6(b)(4) of the Act because the Proposed Fees will permit
recovery of the Exchange's costs and will not result in excessive or
supracompetitive profit. The Proposed Fees will allow the Exchange to
recover a portion (less than all) of the costs incurred by the Exchange
associated with providing and maintaining the necessary hardware and
other infrastructure to support this technology. The Exchange believes
that it is reasonable and appropriate to establish its fees charged for
use of its connectivity at a level that will partially offset the costs
to the Exchange associated with maintaining and enhancing a state-of-
the-art exchange network infrastructure in the U.S. options industry.
The costs associated with making the network accessible to Exchange
Members and non-Members, through the expansion associated with new
Shared Connections and Dedicated Connections, as well as the general
expansion of a state-of-the-art infrastructure, are extensive, have
increased year-over-year in the past two years, and are projected to
increase year-over-year in the future. This is due to several factors,
including costs associated with maintaining and expanding a team of
highly-skilled network engineers, fees charged by the Exchange's third-
party data center operator, and costs associated with projects and
initiatives designed to improve overall network performance and
stability, through the Exchange's research and development (``R&D'')
efforts.
In order to provide more detail and to quantify the Exchange's
costs, the Exchange notes that costs are associated with the
infrastructure and headcount to fully-support the advances in
infrastructure and expansion of network level services, including
customer monitoring, alerting and reporting. The Exchange incurs
technology expenses related to establishing and maintaining Information
Security services, enhanced network monitoring and customer reporting,
as well as Regulation SCI mandated processes, associated with its
network technology. Additionally, the Exchange incurred costs in the
expansion/buildout of the network leading up to the launch of
operations, and the network maintenance costs continue to increase
year-over-year. While some of the expense is fixed, much of the expense
is not fixed, and thus increases as the number of connections increase.
For example, new 1Gb and 10Gb ULL connections require the purchase of
additional hardware to support those connections as well as enhanced
monitoring and reporting of customer performance that MIAX Emerald and
its affiliates provide. And 10Gb ULL connections require the purchase
of specialized, more costly hardware. Further, as the total number of
all connections increase, MIAX Emerald and its affiliates need to
increase their data center footprint and consume more power, resulting
in increased costs charged by their third-party data center provider.
Accordingly, cost to MIAX Emerald and its affiliates is not entirely
fixed. Just the initial fixed cost buildout of the network
infrastructure of MIAX Emerald and its affiliates, including both
primary/secondary sites and disaster recovery, was over $30 million.
A more detailed breakdown of the expense increases since the
initial phases of the buildout of the Exchange over two years ago
include the following: With respect to the network, there has been an
approximate 70% increase in technology-related personnel costs in
infrastructure, due to expansion of services/support (increase of
approximately $800,000); an approximate 10% increase in datacenter
costs due to price increases and footprint expansion (increase of
approximately $500,000); an approximate 5% increase in vendor-supplied
dark fiber due to price increases and expanded capabilities (increase
of approximately $25,000); and a 30% increase in market data
connectivity fees (increase of approximately $200,000). Of note,
regarding market data connectivity fee cost, this is the cost
associated with MIAX Emerald consuming connectivity/content from the
equities markets in order to operate the Exchange, causing MIAX Emerald
to effectively pay its competitors for this connectivity.
There was also significant capital expenditures over this same
period to upgrade and enhance the underlying technology components. The
Exchange
[[Page 34037]]
believes that it is reasonable and appropriate to establish its fees
charged for use of its connectivity at a level that will partially
offset the costs to the Exchange associated with the buildout,
maintenance, and enhancement of its network infrastructure.
Further, because the costs of operating a data center are
significant and not economically feasible for the Exchange, the
Exchange does not operate its own data centers, and instead contracts
with a third-party data center provider. The Exchange notes that
larger, dominant exchange operators own/operate their data centers,
which offers them greater control over their data center costs. Because
those exchanges own and operate their data centers as profit centers,
the Exchange is subject to additional costs. Connectivity fees, which
are charged for accessing the Exchange's data center network
infrastructure, are directly related to the network and offset costs
such costs.
Further, the Exchange invests significant resources in network R&D
to improve the overall performance and stability of its network. For
example, the Exchange has a number of network monitoring tools (some of
which were developed in-house, and some of which are licensed from
third-parties), that continually monitor, detect, and report network
performance, many of which serve as significant value-adds to the
Exchange's Members and enable the Exchange to provide a high level of
customer service. These tools detect and report performance issues, and
thus enable the Exchange to proactively notify a Member (and the SIPs)
when the Exchange detects a problem with a Member's connectivity. The
Exchange also incurs costs associated with the maintenance and
improvement of existing tools and the development of new tools.
Certain recently developed network aggregation and monitoring tools
provide the Exchange with the ability to measure network traffic with a
much more granular level of variability. This is important as Exchange
Members demand a higher level of network determinism and the ability to
measure variability in terms of single digit nanoseconds. Also, routine
R&D projects to improve the performance of the network's hardware
infrastructure result in additional cost. As an example, in the last
year, R&D efforts resulted in a performance improvement, requiring the
purchase of new equipment to support that improvement, and thus
resulting in increased costs in the hundreds of thousands of dollars
range. In sum, the costs associated with maintaining and enhancing a
state-of-the-art exchange network infrastructure in the U.S. options
industry is a significant expense for the Exchange that also increases
year-over-year, and thus the Exchange believes that it is reasonable to
offset a portion of those costs through establishing network
connectivity fees, as proposed herein. Overall, the Proposed Fees are
projected to offset only a portion of the Exchange's network
connectivity costs. The Exchange invests in and offers a superior
network infrastructure as part of its overall options exchange services
offering, resulting in significant costs associated with maintaining
this network infrastructure, which are directly tied to the amount of
the connectivity fees that must be charged to access it, in order to
recover those costs. As detailed in the Exchange's 2018 audited
financial statements which will be publicly available as part of the
Exchange's Form 1 Amendment, the Exchange only has four primary sources
of revenue: Transaction fees, access fees (of which network
connectivity constitute the majority), regulatory fees, and market data
fees. Accordingly, the Exchange must cover all of its expenses from
these four primary sources of revenue.
The Proposed Fees are fair and reasonable because they will not
result in excessive pricing or supracompetitive profit, when comparing
the total annual expense of the Exchange associated with providing the
network connectivity services versus the total annual revenue of the
Exchange associated with providing the network connectivity services.
For 2018, the annual expense associated with the provision of the
network connectivity services for MIAX Emerald was approximately $3.7
million. This amount is comprised of both direct and indirect expense.
The direct expense (which relates 100% to the network infrastructure,
associated data center processing equipment required to support various
connections, network monitoring systems and associated software
required to support the various forms of connectivity) was
approximately $1.2 million (constituting primarily the Information
Technology expense in the Exchange's 2018 financial statements). The
indirect expense (which includes expense from such areas as trading
operations, software development, business development, information
technology, marketing, human resources, legal and regulatory, finance
and accounting) that the Exchange allocates to the development,
maintenance and support of network connectivity services was
approximately $2.5 million. This indirect expense of $2.5 million
represents approximately 20% of total annual expense of MIAX Emerald
for 2018 of approximately $13.5 million, less direct expense of $1.2
million ($13.5 million less $1.2 million equals $12.3 million
multiplied by 20% equals $2.5 million). The Exchange projects that its
expenses for 2019 will be slightly higher than they were in 2018, as
the Exchange went into operation in 2019 and thus required additional
resources and services. For 2019, the annual expense associated with
the provision of the network connectivity services for MIAX Emerald is
projected to be approximately $5.5 million, consisting of $2.5 million
in direct expense and $3 million in indirect expense.
Total revenue of the Exchange associated with selling the network
connectivity services for MIAX Emerald in 2018 was $0, as the Exchange
did not commence operations until March 2019. Total projected revenue
of the Exchange associated with selling the network connectivity
services for MIAX Emerald is projected to be approximately $2.5 million
for 2019 (reflecting 10 full months of operation). This $2.5 million in
revenue represents approximately 25% of total projected net revenue of
MIAX Emerald for 2019, of approximately $9.7 million. The Exchange
believes that an indirect expense allocation of 20% of total expense
(less direct expense) to network connectivity services is fair and
reasonable, as total projected network connectivity revenue for 2019
represents approximately 25% of total projected net revenue for 2019,
and the Exchange's affiliates, MIAX and MIAX PEARL, utilize a 20%
expense allocation for their network connectivity fees. That is, for
2018, direct expense of $1.2 million plus indirect expense of $2.5
million fairly reflects the total annual expense associated with
providing the network connectivity services in 2018. For 2019, direct
expense of $2.5 million plus indirect expense of $3 million fairly
reflects the total projected annual expense associated with providing
the network connectivity services in 2019. The Exchange believes that
this is a conservative allocation of indirect expense. Accordingly, the
total projected MIAX Emerald connectivity revenue for 2018 of $0 is
less than total annual actual MIAX Emerald connectivity expense for
2018 of $3.7 million. Further, the total projected MIAX Emerald
connectivity revenue for 2019 of $2.5 million is less than total
projected MIAX Emerald connectivity
[[Page 34038]]
expense for 2019 of $5.5 million. Accordingly, the Proposed Fees are
fair and reasonable because they do not result in excessive pricing or
supracompetitive profit, when comparing the network connectivity costs
to the Exchange versus the network connectivity annual revenue.
Additional information on Exchange revenue and expense can be found in
the Exchange's 2018 audited financial results, which will be publicly
available as part of the Exchange's Form 1 filed with the Commission by
June 30, 2019.
The Exchange also believes its proposal to offer 10Gb ULL
connections as dedicated connections furthers the objectives of Section
6(b)(5) of the Act \30\ in that it is designed to promote just and
equitable principles of trade, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general to protect investors and the public interest and is not
designed to permit unfair discrimination between customer, issuers,
brokers and dealers. In particular, for the Dedicated Connection, the
Exchange's MENI is configured to provide Members and non-Members of the
Exchange network connectivity to the trading platforms, market data
systems, test systems, and disaster recovery facilities of the
Exchange. Any Member or non-Member can purchase a Dedicated Connection.
The Exchange determined to design its network architecture in a manner
that offered 10Gb ULL connections as dedicated connections (as opposed
to shared connections) in order to provide cost saving opportunities
for itself and for its Members, by reducing the amount of equipment
that the Exchange would have to purchase and to which the Members would
have to connect. A dedicated 10Gb ULL connection does not offer any
unfair advantage over a shared 10GB ULL connection, as is being offered
solely as a cost-saving measure to the Exchange and its Members.
---------------------------------------------------------------------------
\30\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
The Exchange notes that other exchanges have similar connectivity
alternatives for their participants, including similar low-latency
connectivity. For example, Nasdaq PHLX LLC (``Phlx''), NYSE Arca, Inc.
(``Arca''), NYSE American LLC (``NYSE American'') and Nasdaq ISE, LLC
(``ISE'') all offer a 1Gb, 10Gb and 10Gb low latency ethernet
connectivity alternatives to each of their participants.\31\ The
Exchange further notes that Phlx, ISE, Arca and NYSE American each
charge higher rates for such similar connectivity to primary and
secondary facilities,\32\ however the Exchange also notes that the
Exchange's 10Gb ULL connection is dedicated solely to one market (the
Exchange) whereas the Exchange believes that other exchanges offer a
shared 10Gb ULL connection to multiple markets. While MIAX Emerald's
proposed connectivity fees are substantially lower than the fees
charged by Phlx, ISE, Arca and NYSE American, MIAX Emerald believes
that it offers significant value to Members over other exchanges in
terms of network monitoring and reporting, which MIAX Emerald believes
is a competitive advantage, and differentiates its connectivity versus
connectivity to other exchanges. Additionally, the Exchange's proposed
connectivity fees to its disaster recovery facility are within the
range of the fees charged by other exchanges for similar connectivity
alternatives.\33\
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\31\ See Phlx and ISE Rules, General Equity and Options Rules,
General 8, Section 1(b). Phlx and ISE each charge a monthly fee of
$2,500 for each 1Gb connection, $10,000 for each 10Gb connection and
$15,000 for each 10Gb Ultra connection, which the equivalent of the
Exchange's 10Gb ULL connection. See also NYSE American Fee Schedule,
Section V.B, and Arca Fees and Charges, Co-Location Fees. NYSE
American and Arca each charge a monthly fee of $5,000 for each 1Gb
circuit, $14,000 for each 10Gb circuit and $22,000 for each 10Gb LX
circuit, which the equivalent of the Exchange's 10Gb ULL connection.
\32\ Id.
\33\ See Nasdaq ISE, Options Rules, Options 7, Pricing Schedule,
Section 11.D. (charging $3,000 for disaster recovery testing &
relocation services); see also Cboe Exchange, Inc. (``Cboe'') Fees
Schedule, p. 14, Cboe Command Connectivity Charges (charging a
monthly fee of $2,000 for a 1Gb disaster recovery network access
port and a monthly fee of $6,000 for a 10Gb disaster recovery
network access port).
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B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change would
place certain market participants at the Exchange at a relative
disadvantage compared to other market participants or affect the
ability of such market participants to compete. In particular, the
Exchange has received no official complaints from Members, non-Members
(extranets and service bureaus), third-parties that purchase the
Exchange's connectivity and resell it, and customers of those
resellers, that the Exchange's fees or the Proposed Fees are negatively
impacting or would negatively impact their abilities to compete with
other market participants or that they are placed at a disadvantage.
The Exchange believes that the Proposed Fees do not place certain
market participants at a relative disadvantage to other market
participants because the connectivity pricing is associated with
relative usage of the various market participants and does not impose a
barrier to entry to smaller participants. As described above, the less
expensive 1Gb direct connection is generally purchased by market
participants that utilize less bandwidth. The market participants that
purchase 10Gb ULL direct connections utilize the most bandwidth, and
those are the participants that consume the most resources from the
network. Accordingly, the Proposed Fees do not favor certain categories
of market participants in a manner that would impose a burden on
competition; rather, the allocation of the Proposed Fees reflects the
network resources consumed by the various size of market participants--
lowest bandwidth consuming members pay the least, and highest bandwidth
consuming members pays the most, particularly since higher bandwidth
consumption translates to higher costs to the Exchange.
Inter-Market Competition
The Exchange believes the Proposed Fees do not place an undue
burden on competition on other SROs that is not necessary or
appropriate. In particular, options market participants are not forced
to connect to (and purchase market data from) all options exchanges, as
shown by the number of Members of the Exchange as compared to the much
greater number of members at other options exchanges (as described
above). Not only does MIAX Emerald have less than half the number of
members as certain other options exchanges, but there are also a number
of the Exchange's Members that do not connect directly to MIAX Emerald.
There are a number of large market makers and broker-dealers that are
members of other options exchange but not Members of MIAX Emerald.
Additionally, the Exchange other exchanges have similar connectivity
alternatives for their participants, including similar low-latency
connectivity, but with much higher rates to connect.\34\ The Exchange
is also unaware of any assertion that its existing fee levels or the
Proposed Fees would somehow unduly impair its competition with other
options exchanges. To the contrary, if the fees charged are deemed too
high by market participants, they can simply disconnect.
---------------------------------------------------------------------------
\34\ See supra note 31.
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While the Exchange recognizes the distinction between connecting to
an exchange and trading at the exchange,
[[Page 34039]]
the Exchange notes that it operates in a highly competitive options
market in which market participants can readily connect and trade with
venues they desire. In such an environment, the Exchange must
continually adjust its fees to remain competitive with other exchanges.
The Exchange believes that the proposed changes reflect this
competitive environment.
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,\35\ and Rule 19b-4(f)(2) \36\ thereunder.
At any time within 60 days of the filing of the proposed rule change,
the Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act. If the Commission takes such
action, the Commission shall institute proceedings to determine whether
the proposed rule should be approved or disapproved.
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\35\ 15 U.S.C. 78s(b)(3)(A)(ii).
\36\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------
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-EMERALD-2019-24 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-EMERALD-2019-24. 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 website (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 website 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. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-EMERALD-2019-24 and should be submitted
on or before August 6, 2019.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\37\
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\37\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-15026 Filed 7-15-19; 8:45 am]
BILLING CODE 8011-01-P