[Federal Register Volume 84, Number 241 (Monday, December 16, 2019)]
[Notices]
[Pages 68530-68536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26991]



[[Page 68530]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87713; File No. SR-CboeBYX-2019-023]


Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change To 
Introduce a Small Retail Broker Distribution Program

December 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 November 27, 2019, Cboe BYX Exchange, Inc. (``Exchange'' or ``BYX'') 
filed with the Securities and Exchange Commission (``Commission'') the 
proposed rule change as described in Items I, II, and III below, which 
Items have been prepared by the Exchange. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Cboe BYX Exchange, Inc. (``BYX'' or the ``Exchange'') is filing 
with the Securities and Exchange Commission (the ``Commission'') a 
proposed rule change to introduce a Small Retail Broker Distribution 
Program. The text of the proposed changes to the fee schedule are 
enclosed [sic] as Exhibit 5.
    The text of the proposed rule change is also available on the 
Exchange's website (http://markets.cboe.com/us/equities/regulation/rule_filings/byx/), at the Exchange's Office of the Secretary, 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 introduce a pricing 
program that would allow small retail brokers that purchase top of book 
market data from the Exchange to benefit from discounted fees for 
access to such market data. The Small Retail Broker Distribution 
Program (the ``Program'') would reduce the distribution and 
consolidation fees paid by small broker-dealers that operate a retail 
business. In turn, the Program may increase retail investor access to 
real-time U.S. equity quote and trade information, and allow the 
Exchange to better compete for this business with competitors that 
offer similar optional products. The Exchange initially filed to 
introduce the Program on August 1, 2019 (``Initial Proposal'') to 
further ensure that retail investors served by smaller firms have cost 
effective access to its market data products, and as part of its 
ongoing efforts to improve the retail investor experience in the public 
markets. The Initial Proposal was published in the Federal Register on 
August 20, 2019,\3\ and the Commission received no comment letters on 
the Initial Proposal. The Program remained in effect until the fee 
change was temporarily suspended pursuant to a suspension order (the 
``Initial Suspension Order'').\4\ The Initial Suspension Order also 
instituted proceedings to determine whether to approve or disapprove 
the Initial Proposal.\5\ On October 1, 2019, the Exchange re-filed its 
proposed rule change with additional information about the basis for 
the proposed fee change (``Second Proposal), which as noted above is 
designed to facilitate retail investor access to reasonably priced 
market data. The Second Proposal was published in the Federal Register 
on October 15, 2019,\6\ and the Commission received no commenter 
letters on the Second Proposal. The Program again remained in effect 
until the fee change was temporarily suspended pursuant to a suspension 
order (the ``Second Suspension Order'').\7\ The Second Suspension Order 
also instituted proceedings to determine whether to approve or 
disapprove the Second Proposal.\8\
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    \3\ See Securities Exchange Act Release No. 86670 (August 14, 
2019), 84 FR 43207 (August 20, 2019) (SR-CboeBYX-2019-012).
    \4\ See Securities Exchange Act Release No. 87166 (September 30, 
2019), 84 FR 53197 (October 4, 2019) (SR-CboeBYX-2019-012).
    \5\ Id.
    \6\ See Securities Exchange Act Release No. 87305 (October 15, 
2019), 84 FR 56210 (October 21, 2019) (SR-CboeBYX-2019-015).
    \7\ See Securities Exchange Act Release No. 87631 (November 26, 
2019) (SR-CboeBYX-2019-015) (Federal Register publication pending).
    \8\ Id.
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Current Fees
    Today, the Exchange offers two top of book data feeds that provide 
real-time U.S. equity quote and trade information to investors. First, 
the Exchange offers the BYX Top Feed, which is an uncompressed data 
feed that offers top of book quotations and execution information based 
on equity orders entered into the System. The fee for external 
distribution of BYX Top data is $1,000 per month, and external 
distributors are also liable for a fee of $1 per month for each 
Professional User, and $0.025 per month for each Non-Professional User.
    Second, the Exchange offers the Cboe One Summary Feed, which offers 
similar information based on equity orders submitted to the Exchange 
and its affiliated equities exchanges--i.e., Cboe BZX Exchange, Inc., 
Cboe EDGX Exchange, Inc., and Cboe EDGA Exchange, Inc. Specifically, 
the Cboe One Summary Feed is a data feed that contains the aggregate 
best bid and offer of all displayed orders for securities traded on the 
Exchange and its affiliated exchanges. The Cboe One Summary Feed also 
contains the individual last sale information for the Exchange and each 
of its affiliated exchanges, and consolidated volume for all listed 
equity securities. The fee for external distribution of the Cboe One 
Summary Feed is $5,000 per month, and external distributors are also 
liable for a Data Consolidation Fee of $1,000 per month, and User fees 
equal to $10 per month for each Professional User, and $0.25 per month 
for each Non-Professional User.\9\
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    \9\ The Exchange also offers an Enterprise license for the BYX 
Top and Cboe One Summary Feeds. An Enterprise license permits 
distribution to an unlimited number of Professional and Non-
Professional Users, keeping costs down for firms that provide access 
to a large number of subscribers. An Enterprise license is $10,000 
per month for the BYX Top Feed, and $50,000 per month for the Cboe 
One Summary Feed.
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Small Retail Broker Eligibility Requirements
    The Exchange proposes to introduce a Program that would reduce 
costs for small retail brokers that provide top of book data to their 
clients. In order to be approved for the Small Retail Broker 
Distribution Program, Distributors would have to provide either the BYX 
Top Feed or Cboe One Summary Feed

[[Page 68531]]

(``BYX Equities Exchange Data'') to a limited number of clients with 
which the firm has established a brokerage relationship, and would have 
to provide such data primarily to Non-Professional Data Users. 
Specifically, distributors would have to attest that they meet the 
following criteria: (1) Distributor is a broker-dealer distributing BYX 
Equities Exchange Data to Non-Professional Data Users with whom the 
broker-dealer has a brokerage relationship; (2) At least 90% of the 
Distributor's total Data User population must consist of Non-
Professional Data Users, inclusive of those not receiving BYX Equities 
Exchange Data; and (3) Distributor distributes BYX Equities Exchange 
Data to no more than 5,000 Non-Professional Data Users.\10\
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    \10\ Distributors would have to meet these requirements for 
whichever product they would like to distribute pursuant to the 
Program. For example, a distributor that distributes Cboe One 
Summary Feed data pursuant to the Program, would be limited to 
distributing the Cboe One Summary Feed to no more than 5,000 Non-
Professional Data Users.
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    These proposed requirements for participating in the Program are 
designed to ensure that the benefits provided by the Program inure to 
the benefit of small retail brokers that provide BYX Equities Exchange 
Data to a limited number of subscribers. As explained later in this 
filing, distributors that provide BYX Equities Exchange Data to a 
larger number of subscribers can benefit from the current pricing 
structure through scale, due to subscriber fees that are significantly 
lower than those charged by the Exchange's competitors, and an 
Enterprise license that caps the total fees to be paid by firms that 
distribute market data to a sizeable customer base. The Exchange 
believes that offering similarly attractive pricing to small retail 
brokers, including regional firms both inside and outside of the U.S. 
that may not have the same established client base as the larger retail 
brokers, would make the Exchange's data a more competitive alternative 
for those firms, and would help ensure that such information is widely 
available to a larger number of retail investors globally. The Program 
would also be available to retail brokers more generally, regardless of 
size, that wish to trial the Exchange's top of book products with a 
limited number of subscribers before potentially expanding distribution 
to additional clients, potentially further increasing the accessibility 
of the Exchange's market data to retail investors. The Program would be 
exclusive to the Exchange's top of book offerings as retail investors 
typically do not need or use depth of book data to facilitate their 
equity investments, and their brokers typically do purchase such market 
data on their behalf.
Discounted Fees
    Distributors that participate in the Program would be liable for 
lower distribution fees for access to the BYX Top Feed, and lower 
distribution and consolidation fees for access to the Cboe One Summary 
Data Feed.\11\ First, the distribution fee charged for BYX Top would be 
lowered by 75% from the current $1,000 per month to $250 per month for 
distributors that meet the requirements of the Program. Second, the 
distribution fee charged to these distributors for the Cboe One Summary 
Feed would be lowered by 30% from the current $5,000 per month to 
$3,500 per month. Finally, the Data Consolidation Fee charged for the 
Cboe One Summary Feed would be lowered by 65% from the current $1,000 
per month to $350 per month. User fees for any Professional or Non-
Professional Users that access BYX Top or Cboe One Summary Feed data 
from a distributor that participates in the Program would remain at 
their current levels as the current subscriber charges are already 
among the most competitive in the industry.\12\
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    \11\ New external distributors of the BYX Top Feed or Cboe One 
Summary Feed are not currently charged external distributor fees for 
their first month of service. This would continue to be the case for 
external distributors that participate in the Program.
    \12\ By comparison, The Nasdaq Stock Market LLC (``Nasdaq'') 
charges a subscriber fee for Nasdaq Basic that adds up to $26 per 
month for Professional Subscribers and $1 per month for Non-
Professional Subscribers (Tapes A, B, and C). See Nasdaq Equity 
Rules, Equity 7, Pricing Schedule, Section 147(b)(1).
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    The Exchange believes that these fees, which represent a 
significant cost savings for small retail brokers, would help ensure 
that retail investors continue to have fair and efficient access to 
U.S. equity market data. While retail investors normally pay a fixed 
commission when buying or selling equities, and do not typically pay 
separate fees for market data, the Exchange believes that the proposed 
reduction in fees would make the Exchange's data more competitive with 
other available alternatives, and may encourage retail brokers to make 
such data more readily available to their clients. In sum, the Exchange 
believes that the proposed fee reductions may facilitate more cost 
effective access to top of book data that is purchased on a voluntary 
basis by retail brokers and provided to their retail investor clients.
Market Background
    The market for top of book data is highly competitive as national 
securities exchanges compete both with each other and with the 
securities information processors (``SIPs'') to provide efficient, 
reliable, and low cost data to a wide range of investors and market 
participants. In fact, Regulation NMS requires all U.S. equities 
exchanges to provide their best bids and offers, and executed 
transactions, to the two registered SIPs for dissemination to the 
public. Top of book data is therefore widely available to investors 
today at a relatively modest cost. National securities exchanges may 
also disseminate their own top of book data, but no rule or regulation 
of the Commission requires market participants to purchase top of book 
data from an exchange.\13\ The BYX Top Feed and Cboe One Summary Feed 
therefore compete with the SIP and with similar products offered by 
other national securities exchanges that offer their own competing top 
of book products. In fact, there are ten competing top of book products 
offered by other national securities exchanges today, not counting 
products offered by the Exchange's affiliates.\14\
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    \13\ By contrast, Rule 603(c) of Regulation NMS (the ``Vendor 
Display Rule'') effectively requires that SIP data or some other 
consolidated display be utilized in any context in which a trading 
or order-routing decision can be implemented.
    \14\ Competing top of book products include, Nasdaq Basic, BX 
Basic, PSX Basic, NYSE BQT, NYSE BBO/Trades, NYSE Arca BBO/Trades, 
NYSE American BBO/Trades, NYSE Chicago BBO/Trades, and IEX TOPS.
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    The purpose of the proposed rule change is to further increase the 
competitiveness of the Exchange's top of book market data products 
compared to competitor offerings that may currently be cheaper for 
firms with a limited subscriber base that do not yet have the scale to 
take advantage of the lower subscriber fees offered by the Exchange. In 
turn, the Exchange believes that this change may benefit market 
participants and investors by spurring additional competition and 
increasing the accessibility of the Exchange's top of book data.
    As explained, the Exchange filed the Initial Proposal to introduce 
the Program in August in order to provide an attractive pricing option 
for small retail brokers. Although that filing was ultimately suspended 
by the Commission, and a Second Proposal filed and withdrawn [sic], the 
Exchange believes that its experience in offering the Program while it 
has been in effect reflect the competitive nature of the market for the 
creation and distribution

[[Page 68532]]

of top of book data. Specifically, after the Exchange reduced the fees 
charged to small retail brokers under the Initial Proposal and Second 
Proposal, it successfully onboarded two new customers due to the 
attractive pricing.\15\ These customers are now able to offer high 
quality and cost effective data to their retail investor clients. The 
Exchange has also been discussing the Program with a handful of 
additional prospective clients that are interested in providing top of 
book data to retail investors. Without the proposed pricing discounts, 
the Exchange believes that those customers and prospective customers 
may not be interested in purchasing top of book data from the Exchange, 
and would instead purchase such data from other national securities 
exchanges or the SIPs, potentially at a higher cost than would be 
available pursuant to the Program. The Program has therefore already 
been successful in increasing competition for such market data, and 
continued operation of the Program would serve to both reduce fees for 
such customers and to provide alternatives to data and pricing offered 
by competitors. Ultimately, the Exchange believes that it is critical 
that it be allowed to compete by offering attractive pricing to 
customers as increasing the availability of such products ensures 
continued competition with alternative offerings. Such competition may 
be constrained when competitors are impeded from offering alternative 
and cost effective solutions to customers.
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    \15\ See e.g., Cboe Innovation Spotlight, ``dough--The 
commission-free online broker with premium content and insights,'' 
available at https://markets.cboe.com/us/equities/market_data_products/spotlight/. The second customer will begin 
participating in the Program on December 1, 2019.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the objectives of Section 6 of the Act,\16\ in general, and 
furthers the objectives of Section 6(b)(4),\17\ in particular, as it is 
designed to provide for the equitable allocation of reasonable dues, 
fees and other charges among its members and other recipients of 
Exchange data.
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    \16\ 15 U.S.C. 78f.
    \17\ 15 U.S.C. 78f(b)(4).
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    The Exchange also believes that the proposed rule change is 
consistent with Section 11(A) of the Act.\18\ Specifically, the 
proposed rule change supports (i) fair competition among brokers and 
dealers, among exchange markets, and between exchange markets and 
markets other than exchange markets, and (ii) the availability to 
brokers, dealers, and investors of information with respect to 
quotations for and transactions in securities. In addition, the 
proposed rule change is consistent with Rule 603 of Regulation NMS,\19\ 
which provides that any national securities exchange that distributes 
information with respect to quotations for or transactions in an NMS 
stock do so on terms that are not unreasonably discriminatory.
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    \18\ 15 U.S.C. 78k-1.
    \19\ See 17 CFR 242.603.
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    In adopting Regulation NMS, the Commission granted SROs and broker-
dealers increased authority and flexibility to offer new and unique 
market data to the public. It was believed that this authority would 
expand the amount of data available to consumers, and also spur 
innovation and competition for the provision of market data. The 
Exchange believes that the proposed fee change would further broaden 
the availability of U.S. equity market data to investors, and in 
particular retail investors, consistent with the principles of 
Regulation NMS.
    The Exchange operates in a highly competitive environment. Indeed, 
there are thirteen registered national securities exchanges that trade 
U.S. equities and offer associated top of book market data products to 
their customers. The national securities exchanges also compete with 
the SIPs for market data customers. The Commission has repeatedly 
expressed its preference for competition over regulatory intervention 
in determining prices, products, and services in the securities 
markets. Specifically, 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.'' \20\ The proposed fee change is a result of the 
competitive environment, as the Exchange seeks to amend its fees to 
attract additional subscribers for its proprietary top of book data 
offerings.
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    \20\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting 
Release'').
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    The proposed fee change would reduce fees charged to small retail 
brokers that provide access to two top of book data products: The BYX 
Top Feed and the Cboe One Summary Feed. The BYX Top Feed provides top 
of book quotations and transactions executed on the Exchange, and 
provides a valuable window into the market for securities traded on a 
market that accounts for about 4% of U.S. equity market volume 
today.\21\ The Cboe One Summary Feed is a competitively-priced 
alternative to top of book data disseminated by SIPs, or similar data 
disseminated by other national securities exchanges.\22\ It provides 
subscribers with consolidated top of book quotes and trades from four 
Cboe U.S. equities markets, which together account for about 17% of 
consolidated U.S. equities trading volume.\23\ Together, these products 
are purchased by a wide variety of market participants and vendors, 
including data platforms, websites, fintech firms, buy-side investors, 
retail brokers, regional banks, and securities firms inside and outside 
of the U.S. that desire low cost, high quality, real-time U.S. equity 
market data. By providing lower cost access to U.S. equity market data, 
the BYX Top and Cboe One Summary Feeds benefit a wide range of 
investors that participate in the national market system. Reducing fees 
for broker-dealers that represent retail investors and that may have 
more limited resources than some of their larger competitors would 
further increase access to such data and facilitate a competitive 
market for U.S. equity securities, consistent with the goals of the 
Act.
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    \21\ See https://markets.cboe.com/us/equities/market_share/.
    \22\ See e.g., supra note 12 (discussing Nasdaq Basic).
    \23\ Id.
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    While the Exchange is not required to make any data, including top 
of book data, available through its proprietary market data platform, 
the Exchange believes that making such data available increases 
investor choice, and contributes to a fair and competitive market. 
Specifically, making such data publicly available through proprietary 
data feeds allows investors to choose alternative, potentially less 
costly, market data based on their business needs. While some market 
participants that desire a consolidated display choose the SIP for 
their top of book data needs, and in some cases are effectively 
required to do so under the Vendor Display Rule, others may prefer to 
purchase data directly from one or more national securities exchanges. 
For example, a buy-side investor may choose to purchase the Cboe One 
Summary Feed, or a similar product from another exchange, in order to 
perform investment analysis. The Cboe One Summary Feed represents 
quotes from four highly liquid equities markets. As a result, the Cboe 
One Summary Feed is within 1% of the national best bid and offer 
approximately 98% of the

[[Page 68533]]

time,\24\ and therefore serves as a valuable reference for investors 
that do not require a consolidated display that contains quotations for 
all U.S. equities exchanges. Making alternative products available to 
market participants ultimately ensures increased competition in the 
marketplace, and constrains the ability of exchanges to charge 
supracompetitive fees. In the event that a market participant views one 
exchanges top of book data fees as more or less attractive than the 
competition they can and frequently do switch between competing 
products. In fact, the competiveness of the market for such top of book 
data products is one of the primary factors animating this proposed 
rule change, which is designed to allow the Exchange to further compete 
for this business.
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    \24\ See https://markets.cboe.com/us/equities/market_data_services/cboe_one/.
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    Indeed, the Exchange has already successfully onboarded two new 
Distributors that have decided to purchase Cboe One Summary Data from 
the Exchange rather than purchasing top of book data from a competitor 
exchange. In addition, the Exchange is in discussions with a handful of 
other Distributors that are interested in procuring market data from 
the Exchange due to the attractive pricing offered pursuant to the 
Program. Distributors can discontinue use at any time and for any 
reason, including due to an assessment of the reasonableness of fees 
charged. Further, firms have a wide variety of alternative market data 
products from which to choose, such as similar proprietary data 
products offered by other national securities exchanges. Making the 
Exchange's top of book data available at a lower cost, ultimately 
serves the interests of retail investors that rely on the public 
markets. The Exchange understands that the Commission is interested in 
ensuring that retail investors are appropriately served in the U.S. 
equities market. The Exchange agrees that it is important to ensure 
that our markets continue to serve the needs of ordinary investors, and 
the Program is consistent with this goal.
    The Exchange believes that the proposed fees are reasonable as they 
represent a significant cost reduction for smaller, primarily regional, 
retail brokers that provide top of book data from BYX and its 
affiliated equities exchanges to their retail investor clients. The 
market for top of book data is intensely competitive due to the 
availability of substitutable products that can be purchased either 
from other national securities exchanges, or from registered SIPs that 
make such top of book data publicly available to investors at a modest 
cost. The proposed fee reduction is being made to make the Exchange's 
fees more competitive with such offerings for this segment of market 
participants, thereby increasing the availability of the Exchange's 
data products, and expanding the options available to firms making data 
purchasing decisions based on their business needs. The Exchange 
believes that this is consistent with the principles enshrined in 
Regulation NMS to ``promote the wide availability of market data and to 
allocate revenues to SROs that produce the most useful data for 
investors.'' \25\
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    \25\ See Regulation NMS Adopting Release, supra note 20, at 
37503.
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    Today, the Exchange's top of book market data products are among 
the most competitively priced in the industry due to modest subscriber 
fees, and a lower Enterprise cap, both of which keep fees at a 
relatively modest level for larger firms that provide market data to a 
sizeable number of Professional or Non-Professional Users. Distributors 
with a smaller user base, however, may choose to use competitor 
products that have a lower distribution fee and higher subscriber fees. 
The Program would help the Exchange compete for this segment of the 
market, and may broaden the reach of the Exchange's data products by 
providing an additional low cost alternative to competitor products for 
small retail brokers. While such firms may already utilize similar 
market data products from other sources, the Exchange believes that 
offering its own data to small retail brokers at lower distribution and 
data consolidation costs has the potential to increase choice for 
market participants, and ultimately increase the data available to 
retail investors when coupled with the Exchange's lower subscriber 
fees.
    The Exchange also believes that the proposed fees are equitable and 
not unfairly discriminatory as the proposed fee structure is designed 
to decrease the price and increase the availability of U.S. equities 
market data to retail investors. The Program is designed to reduce the 
cost of top of book market data for broker-dealers that provide such 
data to Non-Professional Data User clients that make up a significant 
majority of the distributor's total subscriber population. While there 
is no ``exact science'' to choosing one eligibility threshold compared 
to another, the Exchange believes that having significantly more Non-
Professional Data Users than Professional Data User across a firm's 
entire business, i.e., not limited exclusively to Data Users that are 
provided access to the Exchange's data products, is indicative of a 
broker-dealer that is primarily and actively engaged in the business of 
serving retail investors.
    This understanding is confirmed by an analysis conducted by the 
Exchange on the user population of its retail broker clients that 
purchase market data from the Exchange and its affiliated exchanges. 
When the Exchange initially filed to introduce the Program, it included 
a simple majority requirement--i.e., more than 50% of the broker 
dealer's user population would have to be Non-Professional Users. The 
Exchange's experience to date has been that this requirement has been 
sufficient to ensure that the benefits of the Program go to retail 
brokers, and indeed each of the current customers that participate in 
or are soon to participate in the Program have been focused on 
providing trading services to ordinary investors. Based on additional 
analysis, however, the Exchange believes that this threshold can be 
safely increased to require at least 90% Non-Professional Users, as 
proposed today, without limiting the benefits provided to broker 
dealers that primarily serve retail investors. To perform its analysis, 
the Exchange reviewed user populations for each broker dealer that it 
identified as primarily engaged in serving retail investors (i.e., 
retail brokers), and for which the Exchange has reported usage broken 
down into Professional and Non-Professional Users.\26\ This analysis 
showed that each retail broker identified currently provides market 
data from the Exchange or its affiliates to at least 90% Non-
Professional Users, with the Professional/Non-Professional breakdown 
ranging from 90.9% Non-Professional Users on the low end to 100% Non-
Professional Users on the high end.
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    \26\ Broker dealers with an Enterprise license are required to 
report total user populations but not whether each user is a 
Professional or Non-Professional User. As a result, the Exchange has 
excluded those firms from this portion of its analysis. That said, 
the Exchange believes those firms may have a similar Professional/
Non-Professional breakdown to other retail brokers.
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    As such, even with the higher threshold proposed, the Program would 
be broadly available to a wide range of retail brokers that either 
purchase BYX Equities Exchange Data today, or that may choose to switch 
from competing products due to the potential cost savings. In addition 
to the subscribers that are participating and are soon to participate 
in the Program, a number of distributors that currently purchase top

[[Page 68534]]

of book data from one of the four Cboe U.S. equities exchanges, and 
many more prospective customers, could benefit from the Program. Each 
of these current or prospective retail broker customers would receive 
the same benefits in terms of reduced distribution and consolidation 
fees based on the product that they purchase from the Exchange.
    The Commission has long stressed the need to ensure that the 
equities markets are structured in a way that meets the needs of 
ordinary investors. For example, the Commission's strategic plan for 
fiscal years 2018-2022 touts ``focus on the long-term interests of our 
Main Street investors'' as the Commission's number one strategic 
goal.\27\ The Program would be consistent with the Commission's stated 
goal of improving the retail investor experience in the public markets. 
Furthermore, national securities exchanges commonly charge reduced fees 
and offer market structure benefits to retail investors, and the 
Commission has consistently held that such incentives are consistent 
with the Act. The Exchange believes that the Program is consistent with 
longstanding precedent indicating that it is consistent with the Act to 
provide reasonable incentives to retail investors that rely on the 
public markets for their investment needs.
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    \27\ See U.S. Securities and Exchange Commission, Strategic 
Plan, Fiscal Years 2018-2022, available at https://www.sec.gov/files/SEC_Strategic_Plan_FY18-FY22_FINAL_0.pdf.
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    In addition, while the Program would be effectively limited to 
smaller firms that distribute data to no more than 5,000 Non-
Professional Data Users, the Exchange does not believe that this 
limitation makes the fees inequitable, unfairly discriminatory, or 
otherwise contrary to the purposes of the Act. The Program is designed 
to ensure that small retail brokers have access to Exchange data at a 
modest cost, and therefore contains an eligibility cutoff based on the 
number of Non-Professional Users that would receive BYX Equities 
Exchange Data. The retail broker clients identified by the Exchange 
provide data from the Exchange or its affiliates to an average of more 
than 160,000 Non-Professional Users, with a small handful of large 
retail brokers operating pursuant to an Enterprise license accounting 
for about 95% of those Non-Professional Users.\28\ Many retail broker 
clients, however, have significantly smaller Non-Professional User 
populations, with retail brokers that are not operating pursuant to an 
Enterprise license providing data from the Exchange or its affiliates 
to an average of 8,845 Non-Professional Users. The 5,000 Non-
Professional User threshold would therefore ensure that the benefits of 
the Program flow to small retail brokers, as intended, and not larger 
firms that already benefit from the current fee structure.
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    \28\ As explained, broker dealers with an Enterprise license are 
required to report total user populations but not whether each user 
is a Professional or Non-Professional User. See supra note 26. To 
perform this analysis, the Exchange therefore assumed that retail 
brokers qualifying for the enterprise cap had a similar breakdown of 
Professional/Non-Professional Users as retail brokers that reported 
this information.
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    Large broker-dealers and/or vendors that distribute the Exchange's 
data products to a sizeable number of investors benefit from the 
current fee structure, which includes lower subscriber fees and 
Enterprise licenses. Due to lower subscriber fees, distributors that 
provide BYX Equities Exchange Data to more than 5,000 Non-Professional 
Data Users already enjoy cost savings compared to competitor products. 
The Program would therefore ensure that small retail brokers that 
distribute top of book data to their retail investor customers could 
also benefit from reduced pricing, and would aid in increasing the 
competitiveness of the Exchange's data products for this key segment of 
the market.
    The table below illustrates the impact of the proposed pricing on 
firms that qualify for the Program, both compared to the Exchange's 
current pricing, and compared to the fees charged for a competitor 
product, i.e., Nasdaq Basic. As shown, Cboe One Summary Feed Data 
provided pursuant to the Program would be cheaper than Nasdaq Basic for 
firms with more than 1,200 Non-Professional Users, and the benefits of 
the pricing structure would continue to scale up to firms with 5,000 
Non-Professional Users. Further, BYX Top Data, which is already subject 
to a lower distribution fee than Nasdaq Basic, would become even more 
cost effective. After 5,000 Non-Professional Users the firm would no 
longer be eligible for the Small Retail Broker Distribution Program but 
would already enjoy significant cost savings compared to Nasdaq Basic 
under the current pricing structure. The Exchange therefore believes 
that the Program would allow the Exchange to better compete with 
competitors for smaller firms that currently pay a lower fee under, for 
example, the Nasdaq Basic pricing model, while also ensuring that 
larger firms continue to receive attractive pricing that is already 
cheaper than top of book data offered by the main competitor product. 
The Exchange believes this supplemental information further validates 
its assessment that the proposed fee reduction is reasonable, 
equitable, and not unfairly discriminatory. Without the proposed fee 
reduction, small retail brokers that would otherwise qualify for the 
reduced fees proposed would be subject to either higher fees for 
accessing Exchange top of book data, or may switch to competitor 
offerings that are also less cost effective, but at current fees 
levels, cheaper than the current Cboe One Summary fee.
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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 
result in any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act. The Exchange 
operates in a highly competitive environment, and its ability to price 
these data products is constrained by: (i) Competition among exchanges 
that offer similar data products to their customers; and (ii) the 
existence of inexpensive real-time consolidated data disseminated by 
the SIPs. Top of book data is disseminated by both the SIPs and the 
thirteen equities exchanges. There are therefore a number of 
alternative products available to market participants and investors. In 
this competitive environment potential subscribers are free to choose 
which competing product to purchase to satisfy their need for market 
information. Often, the choice comes down to price, as broker-dealers 
or vendors look to purchase the cheapest top of book data product, or 
quality, as market participants seek to purchase data that represents 
significant market liquidity. In order to better compete for this 
segment of the market, the Exchange is proposing to reduce the cost of 
top of book data provided by small retail brokers to their retail 
investor clients. The Exchange believes that this would facilitate 
greater access to such data, ultimately benefiting the retail investors 
that are provided access to such market data.
    The Exchange does not believe that this price reduction would cause 
any unnecessary or inappropriate burden on intermarket competition as 
other exchanges and data vendors are free to lower their prices to 
better compete with the Exchange's offering. Indeed, as explained in 
the basis section of this proposed rule change, the Exchange's decision 
to lower its distribution and consolidation fees for small retail 
brokers is itself a competitive response to different fee structures 
available on competing markets. The Exchange therefore believes that 
the proposed rule change is pro-competitive as it seeks to offer 
pricing incentives to customers to better position the Exchange as it 
competes to attract additional market data subscribers. The Exchange 
also believes that the proposed reduction in fees for small retail 
brokers would not cause any unnecessary or inappropriate burden on 
intramarket competition. Although the proposed fee discount would be 
largely limited to small retail broker subscribers, larger broker-
dealers and vendors can already purchase top of book data from the 
Exchange at prices that represent a significant cost savings

[[Page 68536]]

when compared to competitor products that combine higher subscriber 
fees with lower fees for distribution. In light of the benefits already 
provided to this group of subscribers, the Exchange believes that 
additional discounts to small retail brokers would increase rather than 
decrease competition among broker-dealers that participate on the 
Exchange. Furthermore, as discussed earlier in this proposed rule 
change, the Exchange believes that offering pricing benefits to brokers 
that represent retail investors facilitates the Commission's mission of 
protecting ordinary investors, and is therefore consistent with the 
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) of the Act \29\ and paragraph (f) of Rule 19b-4 \30\ 
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 will institute proceedings to 
determine whether the proposed rule change should be approved or 
disapproved.
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    \29\ 15 U.S.C. 78s(b)(3)(A).
    \30\ 17 CFR 240.19b-4(f).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-CboeBYX-2019-023 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-CboeBYX-2019-023. 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-CboeBYX-2019-023 and should be submitted 
on or before January 6, 2020.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\31\
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    \31\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-26991 Filed 12-13-19; 8:45 am]
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