[Federal Register Volume 88, Number 141 (Tuesday, July 25, 2023)]
[Notices]
[Pages 47932-47935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15656]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97947; File No. SR-Phlx-2023-30]


Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Establish Fees 
for Field-Programmable Gate Array Technology as an Optional Delivery 
Mechanism for PSX TotalView

July 19, 2023.
    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 July 10, 2023, Nasdaq PHLX LLC (``Phlx'' or ``Exchange'') filed with 
the Securities and Exchange Commission (``SEC'' or ``Commission'') the 
proposed rule change as described in Items I, II, and III below, which 
Items have been prepared by the Exchange. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4 .
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to set fees for the purchase of field-
programmable gate array (``FPGA'') technology as an optional delivery 
mechanism for PSX TotalView.
    The text of the proposed rule change is available on the Exchange's 
website at https://listingcenter.nasdaq.com/rulebook/phlx/rules, at the 
principal office of the Exchange, and at the Commission's Public 
Reference Room.

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

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these

[[Page 47933]]

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 establish a fee 
schedule for the purchase of field-programmable gate array (``FPGA'') 
technology as an optional delivery mechanism for PSX TotalView.\3\ This 
follows a recently-filed proposal to offer FPGA technology as an 
optional delivery mechanism for PSX TotalView.\4\
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    \3\ This Proposal was initially filed by the Exchange on May 23, 
2023. See Securities Exchange Act Release No. 97628 (May 31, 2023), 
88 FR 37116 (June 6, 2023) (SR-Phlx-2023-21). On July 7, 2023, that 
filing was withdrawn and replaced by the instant filing. The instant 
filing provides additional information regarding the Proposal, but 
does not change it in substance.
    \4\ See SR-Phlx-2023-18 (``A proposal to offer field-
programmable gate array (`FPGA') technology as an optional delivery 
mechanism for PSX TotalView.''), available at https://listingcenter.nasdaq.com/assets/rulebook/Phlx/filings/SR-Phlx-2023-18.pdf. A proposal to establish a fee schedule for the use of FPGA 
technology for the BX exchange is being filed concurrently with this 
proposal.
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FPGA
    FPGA is a hardware-based delivery mechanism that utilizes an 
integrated circuit that is programmed to reduce ``jitter''--a technical 
term of art referring to the deviation in amplitude, phase timing or 
width of a signal pulse in a digital signal--that will allow data to be 
processed in a more predictable, or ``deterministic,'' fashion. 
Reducing jitter can be useful for certain customers due to the 
variability in the timing of market data packets transmitted by an 
exchange over the course of the trading day. Orders, and therefore 
market data packets, typically accumulate in larger numbers at the 
beginning and end of the trading day, as well as during the peaks of 
activity that occur at random intervals during the day. These bursts of 
activity may alter the time interval between the delivery of data 
packets because software processes information at variable rates 
depending on load to the system. Processing times may increase at 
higher loads, and decrease during periods of lesser activity. FPGA 
technology processes data packets at a constant time interval, without 
regard to the number of packets processed. Higher levels of determinism 
means less variable queuing, which improves the predictability of data 
transfer, particularly during times of peak market activity.
    The benefits of determinism depend on the use case of the customer, 
as well as the customer's specific system architecture.
    Higher determinism does not necessarily mean lower latency. The 
concepts of determinism and latency are related, but distinct. 
Determinism refers to predictability in the rate of data transmission; 
latency refers to the time required to process data or transport it 
from one location to another. Low latency is not necessarily 
deterministic, and higher determinism does not necessarily mean low 
latency. As such, use of FPGA technology will increase determinism, but 
does not guarantee lower latency at all times.\5\
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    \5\ Because software can be impacted by workload, FPGA has lower 
latency during periods of peak activity.
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    Among customers that seek a higher degree of determinism, the 
benefits of FPGA technology varies, as FPGA technology is one possible 
solution, among a catalog of possible solutions, for increasing the 
consistency and predictability of message throughput over the course of 
the trading day. Some customers are able to adequately control jitter 
without using FPGA technology; other customers address jitter using 
specialized software, coding or other design solutions in conjunction 
with FPGA; still others use FPGA alone. The specific choice depends on 
a complex analysis of the customer's information technology systems in 
the context of their particular use cases.
    FPGA is a broadly-available, commonly-used type of programmable 
circuit that can be modified to suit different use cases. It is used in 
a wide spectrum of industries, including the consumer electronics, 
automotive, and aerospace, as well as in a variety of industrial 
applications. It is not unique to the financial services industry,\6\ 
or to Nasdaq.
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    \6\ See, e.g., Contrive Datum Insights, ``Field-Programmable 
Gate Array (FPGA) Market is expected to reach around USD 22.10 
Billion by 2030, Grow at a CAGR of 15.12% during Forecast Period 
2023 to 2030,'' (February 21, 2023), available at https://www.globenewswire.com/en/news-release/2023/02/21/2612772/0/en/Field-Programmable-Gate-Array-FPGA-Market-Is-Expected-To-Reach-around-USD-22-10-Billion-by-2030-Grow-at-a-CAGR-Of-15-12-during-Forecast-Period-2023-To-2030-Data-By-Contrive-Datum-I.html (describing the 
general size and state of the FPGA market in 2023).
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    FPGA technology has been offered by the Nasdaq Stock Exchange for 
over a decade, and the Nasdaq Options Market for nearly as long,\7\ and 
has been cited by the SEC as an example of a technology useful in the 
distribution of market data products.\8\
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    \7\ See Securities Exchange Act Release No. 67297 (June 28, 
2012), 77 FR 39752 (July 5, 2012) (SR-Nasdaq-2012-063) (introducing 
FPGA technology); see also Nasdaq Data News 2012-13, available at 
http://www.nasdaqtrader.com/TraderNews.aspx?id=dn2012-13 
(introducing TotalView FPGA service as of August 1, 2012); 
Securities Exchange Act Release No. 74745 (April 16, 2015), 80 FR 
22588 (April 22, 2015) (SR-Nasdaq-2015-035) (establishing FPGA for 
the Nasdaq Options Market); The Nasdaq Stock Market LLC Rules, 
Equity 7, Section 126(c) (Hardware-Based Delivery of Nasdaq Depth 
data).
    \8\ See Securities Exchange Act Release No. 90610, 86 FR 18596, 
18647 (April 9, 2021) (File No. S7-03-20) (listing field 
programmable gate array services as an example of a technological 
innovation that could be employed by competing consolidators as part 
of the Market Data Infrastructure rule).
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    The Exchange proposes to offer FPGA technology in conjunction with 
the Exchange's depth of book feed, PSX TotalView. PSX TotalView is a 
real-time market data product that provides full order depth using a 
series of order messages to track the life of customer orders in the 
PSX market, as well as trade data for PSX executions and administrative 
messages such as Trading Action messages, Symbol Directory, and Event 
Control messages.\9\
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    \9\ See Nasdaq Phlx LLC Rules, Equity 7 (Pricing Schedule), 
Section 3 (Nasdaq PSX Fees), PSX TotalView; see also Securities 
Exchange Act Release No. 62876 (September 9, 2010), 75 FR 56624 
(September 16, 2010) (SR-Phlx-2010-120) (introducing PSX TotalView 
as a product).
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Proposed Fees
    Phlx proposes internal distribution fees of $3,500 per month and 
external distribution fees of $350 for FPGA hardware; customers that 
elect to use FPGA hardware for both internal and external distribution 
will pay both fees.\10\ These fees are in addition to Market Data 
Distributor Fees \11\ and fees for PSX TotalView.\12\ Customers that 
elect to receive PSX TotalView without using FPGA technology will pay 
no fee in addition to the underlying fees listed above.
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    \10\ The difference in amount for external and external 
distribution reflects Nasdaq's experience that the Exchange's FPGA 
hardware is best employed at the point of ingestion, as the utility 
of FPGA technology falls as the data moves farther from the source.
    \11\ See Nasdaq Phlx LLC Rules, Equity 7, Section 3, Market Data 
Distributor Fees.
    \12\ See id., PSX TotalView.
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    The proposed fees are substantially lower than FPGA fees for the 
Nasdaq exchange, which are set at $25,000 per Distributor for internal 
only distribution, $2,500 for external only, and $27,500 for internal 
and external distribution.\13\ The difference is based, in part, on a 
comparison of peak activity

[[Page 47934]]

at the two exchanges. As noted above, high levels of determinism are 
particularly valuable during periods of peak activity.
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    \13\ See The Nasdaq Stock Market LLC Rules, Equity 7 (Pricing 
Schedule), Section 126(c) (Hardware-based delivery of Nasdaq depth 
data).
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    Although there is considerable variation in the number of messages 
at various peaks, as well as the duration of peak activity, the 
proposed fees are roughly comparable to the differences in average peak 
activity for Phlx equity products relative to the Nasdaq exchange. 
Exchange staff have also discussed the proposed fees with customers, 
and believe, based on those discussions and their own business 
judgment, that the proposed fees fairly reflect the value of FPGA 
technology for the Phlx equity exchange. A number of customers 
provisionally agree with this assessment, and have indicated that they 
are interested in testing it.
    No other exchange currently offers FPGA technology as a separate 
service in conjunction with the delivery of a proprietary data feed, 
and therefore there are no other fees for comparison.
    If Phlx is incorrect in its determination that the proposed fees 
reflect the underlying value of FPGA technology, customers will not 
purchase the product. FPGA technology is not necessary for a customer 
to ingest and process depth of book information, and those customers 
that seek a higher degree of determinism have a number of options at 
their disposal to reduce jitter without using FPGA.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\14\ in general, and furthers the objectives of 
Sections 6(b)(4) and 6(b)(5) of the Act,\15\ in particular, in that it 
provides for the equitable allocation of reasonable dues, fees and 
other charges among members and issuers and other persons using any 
facility, and is not designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(4) and (5).
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    The Proposal is reasonable and unlikely to burden the market 
because the purchase of FPGA technology is optional for all categories 
of customers. No customer and no category of customers (such as, for 
example, vendors, proprietary trading firms, banks, hedge funds, market 
makers, or high frequency trading firms) are required to purchase FPGA 
technology for either legal or technological reasons--even a customer 
that seeks to reduce jitter.\16\
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    \16\ Not all customers of depth of book information process at 
sufficiently high speeds for jitter to become a concern. Neither 
FPGA hardware nor its substitutes are required to ingest depth of 
book information.
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    The Nasdaq exchange has over ten years of experience in selling 
FPGA technology. That experience has shown that the vast majority of 
Nasdaq depth customers do not find value in FPGA. The Exchange expects 
such customers to continue to ingest BX TotalView as they do now.
    For those customers that may seek to increase determinism, the 
purchase of FPGA technology from the PSX exchange will be only one of 
several options available. FPGA technology is not unique to the 
Exchange or even the financial services industry. Third-party data 
vendors offer FPGA technology services. Customers may also install 
their own FPGA hardware for internal use. All of these are viable 
options; the benefits of any particular option will depend on the 
particular customer's systems and use cases.
    Customers may also choose not to address jitter using FPGA at all. 
As noted above, FPGA technology processes the data at a consistently 
predictable rate relative to software. This predictability in the rate 
of processing may not be advantageous or optimal for all systems 
receiving the exchange data feed.
    The design of data processing architecture is complex. The 
ingestion of data from an exchange is just one step in the life-cycle 
of trading. Customers must also generate and submit orders, evaluate 
trades, and then generate new orders while interacting with multiple 
exchanges. All of these steps are part of a single trading system. 
Changing any one step in the process--by, for example, purchasing FPGA 
technology services from one exchange (when other exchanges may not 
offer FPGA)--often results in the need for changes to other aspects of 
the process. As such, the decision to buy FPGA services will be based 
on whether the service is compatible with their trading system as a 
whole, not just on whether it may facilitate the processing of data 
from a single exchange. The appropriateness of any particular solution 
will depend on the customer's system architecture, and the specific use 
cases for the market data consumed.
    To illustrate the choice faced by exchange customers, consider the 
decisions made by the two consolidated data processors, the UTP and CTA 
Plans, two different systems that use dissimilar means to achieve an 
optimal solution. Both perform the same task--combining quotes and 
trades from all US exchanges into a consolidated data feed with 
relatively low jitter. Yet only one processor--the CTA Plan--uses FPGA 
hardware, while the other--the UTP Plan--does not.
    This is because the UTP Plan's design, coding and hardware achieve 
the desired level of determinism without FPGA technology. The CTA Plan, 
by contrast, elected to incorporate FPGA technology into its system 
design. Notwithstanding these different design decisions, both plans 
achieve broadly similar levels of performance. FPGA technology is 
therefore not essential to addressing jitter, but rather is one option 
among many to address the issue.
    Market data customers face an array of choices to optimize 
determinism, much like the UTP and CTA Plans. For example, a customer 
may purchase and deploy its own FPGA hardware, without purchasing the 
proposed FPGA technology service from the Exchange, after receiving 
data from the Exchange. Another customer may find use of the Exchange's 
FPGA technology, which lowers the level of jitter prior to the 
customer's receipt of the data, to be a better fit for its system 
architecture. The solution chosen will vary based on the needs and 
design choices of the customer.
    The experience of the Nasdaq exchange in offering FPGA technology 
shows that customers sensitive to jitter often avail themselves of 
substitutes for FPGA technology, a decision that can change over time. 
Over the past decade, a total of 21 current or potential users of FPGA 
technology--all of which sought a higher degree of determinism--
substituted FPGA with an alternative solution. Six of these customers 
were in the process of developing and testing FPGA hardware but 
ultimately decided not to purchase it before completing this process. 
The remaining 15 customers purchased FPGA technology, only to cancel it 
after using it. Because all of these customers continued to utilize the 
underlying data, these cancelations demonstrate that FPGA technology is 
an optional service, even for those customers that seek to reduce 
jitter.
    Moreover, as noted above, no other exchange currently offers FPGA 
technology in conjunction with their proprietary data feeds as a 
separate service, notwithstanding the fact that it is a widely 
available technology, providing further evidence that customers have 
multiple options at their disposal to address jitter.
    In the experience of the Nasdaq exchange, FPGA services are 
purchased by vendors, proprietary trading firms, banks, high-frequency 
trading firms, hedge funds, and market makers. The

[[Page 47935]]

Nasdaq exchange is aware of no systematic differences within any of 
these categories among market participants that choose to use or not to 
use FPGA technology.
    Few customers of Nasdaq TotalView purchase FPGA services from 
Nasdaq. This is because the bulk of customers consume Nasdaq TotalView 
for display (i.e., human) usage. FPGA technology impacts performance at 
a speed that a human cannot process, and there is no need for FPGA 
technology for such usage.
    Of the customers that receive Nasdaq TotalView from Nasdaq (either 
through a direct feed or an extranet connection), and are in a position 
to utilize FPGA technology, only about 15 percent purchase it.
    Most strikingly, only approximately 3% of market makers at Nasdaq 
purchase FPGA technology. This may seem a surprising result, given that 
market makers, by definition, trade throughout the day and during 
periods of peak activity, but, as noted above, customers have several 
options: purchase FPGA services from a third-party vendor, implement 
FPGA technology on their own, or configure their systems to process 
data during peaks without the use of FPGA. The fact that only about 3% 
of market makers at the Nasdaq exchange purchase FPGA demonstrates that 
most customers make use of alternative solutions. As such, the 
determining factor in whether to purchase FPGA is not the category of 
customer, but rather the compatibility of FPGA technology with the 
customer's specific systems architecture and technical requirements, 
which can and do change over time as systems are modified, replaced or 
updated.
    For all of these reasons, customers can discontinue the use of FPGA 
technology at any time, or decide not to purchase it, for any reason, 
including the level of fees.
    Customers that choose not to purchase FPGA technology are not 
impacted by the proposal.
    The proposed fees will be available to all customers on a non-
discriminatory basis, and therefore are not designed to permit unfair 
discrimination between customers, issuers, brokers, or dealers.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act.
    This Proposal, a response to customer demand, is a product of a 
competitive marketplace. To date, lower levels of peak activity at the 
Phlx equity exchange relative to the Nasdaq exchange have been 
associated with low levels of customer interest in this product. 
Recently, however, Phlx has heard from customers interested in using 
FPGA technology for PSX TotalView. To address this customer demand, and 
to drive liquidity to the Phlx equity exchange by making it a more 
attractive trading venue, Phlx has decided to offer this product.
    Approval of this Proposal will further promote competition by 
providing market participants additional choices in the transmission of 
PSX TotalView.
    Nothing in the Proposal burdens inter-market competition (the 
competition among self-regulatory organizations) because approval of 
the Proposal does not impose any burden on the ability of other 
exchanges to compete. As noted above, FPGA technology is generally 
available and any exchange has the ability to offer it if it so 
chooses.
    Nothing in the Proposal burdens intra-market competition (the 
competition among consumers of exchange data) because FPGA technology 
is available to any customer under the same fee schedule as any other 
customer, and any market participant that wishes to purchase FPGA 
technology can do so on a non-discriminatory basis.

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act.\17\
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    \17\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is: (i) 
necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in furtherance of the 
purposes of the Act. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number SR-Phlx-2023-30 on the subject line.

Paper Comments

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

All submissions should refer to file number SR-Phlx-2023-30. 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 (https://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 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available publicly. We 
may redact in part or withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-Phlx-2023-30 and should be 
submitted on or before August 15, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\18\
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    \18\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-15656 Filed 7-24-23; 8:45 am]
BILLING CODE 8011-01-P