[Federal Register Volume 88, Number 243 (Wednesday, December 20, 2023)]
[Notices]
[Pages 88197-88201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27924]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99183; File No. SR-Phlx-2023-57]


Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend the 
Exchange's Proprietary Data Fees for Top of PHLX Options (``TOPO''), 
PHLX Orders, and TOPO Plus Orders at Options 7, Section 10

December 14, 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 December 5, 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.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend the Exchange's proprietary data fees 
for Top of PHLX Options (``TOPO''), PHLX Orders, and TOPO Plus Orders 
at Options 7, Section 10, as described further below.
    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 88198]]

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 amend the Exchange's 
proprietary data fees for Top of PHLX Options (``TOPO''), PHLX Orders, 
and TOPO Plus Orders at Options 7, Section 10.\3\
---------------------------------------------------------------------------

    \3\ The proposed changes were initially filed on November 16, 
2023, as SR-Phlx-2023-51. On December 5, 2023, SR-Phlx-2023-51 was 
withdrawn and replaced with the instant filing to provide additional 
detail regarding the proposal.
---------------------------------------------------------------------------

Top of PHLX Options (``TOPO'')
    TOPO is a direct data feed that provides subscribers with PHLX Best 
Bid and Offer (``BBO'') \4\ and last sale information.\5\ The data 
distributed on TOPO is identical to the data simultaneously sent to the 
Options Price Reporting Authority (``OPRA'').\6\ The TOPO feed also 
provides administrative information to facilitate trading on the 
Exchange such as, for example, the list of symbols trading on a 
particular day.\7\ TOPO reduces the transmission and processing 
latencies for top of book information relative to the OPRA feed by 
avoiding the latencies generated by the latter in consolidating data.
---------------------------------------------------------------------------

    \4\ The Best Bid and Offer includes aggregate size information 
based on displayable order and quoting interest on the Exchange.
    \5\ See PHLX, ``Top of Phlx Options,'' available at https://
www.nasdaqtrader.com/
Micro.aspx?id=TOPO#:~:text=Top%20of%20PHLX%20Options%20(TOPO,in%20the
%20consolidated%20market%20feed.
    \6\ See Options 3 (Options Trading Rules), Section 23(a)(1) 
(Data Feeds and Trade Information) (``The data contained in the TOPO 
data feed is identical to the data simultaneously sent to the 
processor for the OPRA and subscribers of the data feed.'').
    \7\ See, e.g., Nasdaq, ``Top of Phlx Options Interface 
Specifications, Version 3.4'' Section 4.3 available at https://www.nasdaqtrader.com/content/technicalsupport/specifications/dataproducts/topofphlx.pdf (describing the start of day options 
directory message, which lists all symbols eligible for the auction 
process).
---------------------------------------------------------------------------

    Monthly fees for TOPO are currently $2,000 for Internal 
Distributors,\8\ $2,500 for External Distributors,\9\ $1 for a Non-
Professional Subscriber,\10\ and $40 for a Professional Subscriber.\11\ 
None of these fees have changed for over a decade, since January 
2013.\12\
---------------------------------------------------------------------------

    \8\ See Options 7, Section 10 (Proprietary Data Feed Fees) (Top 
of PHLX Options) (``A `distributor' of Nasdaq PHLX data is any 
entity that receives a feed or data file . . . directly from Nasdaq 
PHLX or indirectly through another entity and then distributes it 
either internally (within that entity) or externally (outside that 
entity). All distributors execute a Nasdaq PHLX distributor 
agreement.'').
    \9\ See id.
    \10\ See id. (``A Non-Professional Subscriber is a natural 
person who is neither: (i) registered or qualified in any capacity 
with the Commission, the Commodities Futures Trading Commission, any 
state securities agency, any securities exchange or association, or 
any commodities or futures contract market or association; (ii) 
engaged as an `investment adviser' as that term is defined in 
Section 201(11) of the Investment Advisors Act of 1940 (whether or 
not registered or qualified under that Act); nor (iii) employed by a 
bank or other organization exempt from registration under federal or 
state securities laws to perform functions that would require 
registration or qualification if such functions were performed for 
an organization not so exempt. A Non-Professional Subscriber may 
only use the data provided for personal purposes and not for any 
commercial purpose.'').
    \11\ See id. (``A Professional Subscriber is any Subscriber that 
is not a Non-Professional Subscriber. If the Nasdaq Subscriber 
agreement is signed in the name of a business or commercial entity, 
such entity would be considered a Professional Subscriber.'').
    \12\ See Securities Exchange Act Release No. 68576 (January 3, 
2013), 78 FR 1886 (January 9, 2013) (SR-Phlx-2012-145).
---------------------------------------------------------------------------

PHLX Orders
    PHLX Orders is a real-time order book feed with pricing information 
for displayed orders on the PHLX order book.\13\ The data provided for 
each options series includes the symbols (series and underlying 
security), a put or call indicator, expiration date, and the strike 
price of the series. It also provides the real-time status of simple 
and complex orders \14\ on the order book, including new orders and 
changes to orders resting on the PHLX book for all PHLX-listed 
options.\15\ The PHLX Orders feed includes data on the opening 
imbalance, Price Improvement XL (PIXL),\16\ and Complex Order Live 
Auction (COLA).\17\ A notification message is sent for symbols entering 
an auction.\18\ PHLX Orders also furnishes an historical record of all 
simple and complex order message data from the PHLX Orders data feed. 
PHLX Orders information is not sent to OPRA.\19\
---------------------------------------------------------------------------

    \13\ See Options 3 (Options Trading Rules), Section 23(a)(2) 
(Data Feeds and Trade Information).
    \14\ See Options 3 (Options Trading Rules), Section 23(a)(2) 
(Data Feeds and Trade Information); Section 14(a)(i) (``Complex 
Order. For purposes of the electronic trading of Complex Orders, a 
Complex Order is an order involving the simultaneous purchase and/or 
sale of two or more different options series in the same underlying 
security, priced as a net debit or credit based on the relative 
prices of the individual components, for the same account, for the 
purpose of executing a particular investment strategy.'').
    \15\ See Nasdaq, ``PHLX Orders,'' available at https://www.nasdaqtrader.com/Micro.aspx?id=PHLXOrders.
    \16\ See Options 3 (Options Trading Rules), Section 23(a)(2); 
Section 13 (Price Improvement XL) (``A member may electronically 
submit for execution an order it represents as agent on behalf of a 
Public Customer, broker-dealer, or any other entity (`PIXL Order') 
against principal interest or against any other order (except as 
provided in sub-paragraph (a)(6) below) it represents as agent (an 
`Initiating Order') provided it submits the PIXL Order for 
electronic execution into the PIXL Auction (`Auction') pursuant to 
this Rule.'').
    \17\ See Options 3, Section 14(e) (describing the process for 
the Complex Order Live Auction (``COLA'')).
    \18\ Nasdaq, ``PHLX Orders Interface Specification,'' (Version 
1.92) available at https://www.nasdaqtrader.com/content/technicalsupport/specifications/dataproducts/topoplusorders.pdf 
(describing auction notification message).
    \19\ See Limited Liability Company Agreement of Options Price 
Reporting Authority, LLC Article V, Section 5.2(c)(i) (January 1, 
2010), available at https://assets.website-files.com/5ba40927ac854d8c97bc92d7/5d0bd57d87d3ccca102102d7_OPRA%20Plan%20with%20Updated%20Exhibit%20A%20-%2006-19-2019.pdf (describing last sale and best bid and offer 
information disseminated by OPRA).
---------------------------------------------------------------------------

    PHLX Orders is an alternative to PHLX Depth of Market. It is an 
optimized technical channel designed to lower technology costs, reduce 
processing time, and facilitate the ingestion of data while still 
providing customers insight beyond the top of book by viewing active 
buy and sell orders. PHLX Orders excludes quotations by market makers 
and other authorized entities that is included in PHLX Depth of 
Market.\20\
---------------------------------------------------------------------------

    \20\ See Options 3 (Options Trading Rules), Section 23(a)(3) 
(Data Feeds and Trade Information) (``PHLX Depth of Market is a data 
product that provides: (i) order and quotation information for 
individual quotes and orders on the order book . . .'') (emphasis 
added); Section 4(b) (Entry and display of Quotes) (identifying the 
market participants authorized to submit quotes to the Exchange).
---------------------------------------------------------------------------

    In October 2023, the one millisecond average peak for PHLX Depth of 
Market was approximately 13.5 million messages. PHLX Orders transmitted 
only about 2.6 million messages on average over the same period.\21\ In 
that month, purchase of PHLX Orders in lieu of PHLX Depth of Market 
would have lowered the bandwidth required for peak messaging by over 80 
percent. This would have decreased the load on the customer's 
information processing infrastructure, reduced processing time, and 
facilitated the ingestion of Exchange information, while still 
providing the customer with a view of active buy and sell orders.
---------------------------------------------------------------------------

    \21\ See Nasdaq, ``October 2023 Bandwidth,'' available at 
https://view.officeapps.live.com/op/view.aspx?src=http%3A%2F%2Fwww.nasdaqtrader.com%2Fcontent%2Ftechnicalsupport%2Fspecifications%2Fdataproducts%2Fbandwidthreport.xls&wdOrigin=BROWSELINK.
---------------------------------------------------------------------------

    Purchase of PHLX Orders is optional. Customers can obtain all of 
the data contained in PHLX Orders from PHLX Depth of Market feed, and 
may purchase the latter if they do not realize the cost savings offered 
by PHLX Orders.

[[Page 88199]]

    PHLX Orders is a derivative product designed as a lower-cost 
alternative to a depth of book feed. It is not a complement to any 
other product offered by the Exchange or any of its competitors. 
Customers are free to purchase PHLX Orders or not, and can reject the 
feed for any reason, including the fee charged.
    Current monthly fees for PHLX Orders are $3,000 for Internal 
Distributors, $3,500 for External Distributors, $1 for a Non-
Professional Subscriber, and $40 for a Professional Subscriber. None of 
these fees have changes for over a decade, since January 2013.\22\
---------------------------------------------------------------------------

    \22\ See Securities Exchange Act Release No. 68576 (January 3, 
2013), 78 FR 1886 (January 9, 2013) (SR-Phlx-2012-145).
---------------------------------------------------------------------------

TOPO Plus Orders
    TOPO Plus is a direct market data product that offers subscribers 
both TOPO and PHLX Orders for a consolidated fee that is less than the 
combined fee of the two products.\23\
---------------------------------------------------------------------------

    \23\ See PHLX, TOPO Plus PHLX Orders, available at https://www.nasdaqtrader.com/Micro.aspx?id=TOPOPlusOrders.
---------------------------------------------------------------------------

    Monthly fees for TOPO Plus Orders are currently $4,500 for Internal 
Distributors, $5,000 for External Distributors, $1 for a Non-
Professional Subscriber, and $40 for a Professional Subscriber.
    Internal Distributor fees for TOPO Plus Orders were modified in 
January 2018, over five years ago,\24\ but the other TOPO Plus Orders 
fees have not changed since January 2013.\25\
---------------------------------------------------------------------------

    \24\ See Securities Exchange Act Release No. 82495 (January 12, 
2018), 83 FR 2839 (January 19, 2018) (SR-Phlx-2018-08).
    \25\ See Securities Exchange Act Release No. 68576 (January 3, 
2013), 78 FR 1886 (January 9, 2013) (SR-Phlx-2012-145).
---------------------------------------------------------------------------

Proposed Changes
    For TOPO, the Exchange proposes to increase the monthly charge for 
Internal Distributors from $2,000 to $2,500, and the monthly charge for 
External Distributors from $2,500 to $3,000. No changes are proposed 
for Non-Professional and Professional Subscriber fees.
    For PHLX Orders, the Exchange proposes to increase the monthly 
charge for Internal Distributors from $3,000 to $3,500, and the monthly 
charge for External Distributors from $3,500 to $4,000. No changes are 
proposed for Non-Professional and Professional Subscriber fees.
    For TOPO Plus Orders, the Exchange proposes to increase the monthly 
charge for Internal Distributors from $4,500 to $5,500, and the monthly 
charge for External Distributors from $5,000 to $6,000. No changes are 
proposed for Non-Professional and Professional Subscriber fees.
    The proposed changes are designed to update data fees to reflect 
their current value, rather than their value when these fees were set 5 
or 10 years ago.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with section 
6(b) of the Act,\26\ in general, and furthers the objectives of 
sections 6(b)(4) and 6(b)(5) of the Act,\27\ 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.
---------------------------------------------------------------------------

    \26\ 15 U.S.C. 78f(b).
    \27\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    This belief is based on several factors.
    First, exchange fees are constrained because market participants 
can choose among seventeen different venues for options trading, and 
therefore no single venue can charge excessive fees without losing 
customers and market share.
    Second, fees for TOPO are constrained because the identical top of 
book data is sent to OPRA, and certain market participants may choose 
to rely exclusively on OPRA rather than purchasing the proprietary data 
product.
    Third, the purchase of PHLX Orders is optional. It is designed as a 
lower-cost alternative to depth of book, and, as such, is not a 
complement to any other product offered by the Exchange or any of its 
competitors. Customers may purchase PHLX Orders or not, and can reject 
the feed for any reason, including the fee charged.
    Fourth, the proposed fees are comparable to, and in some cases less 
than, those of similarly-situated exchanges.
    Fifth, the current fees do not properly reflect the value of the 
underlying product, as fees for the products in question have been 
static in nominal terms, and therefore falling in real terms (due to 
inflation), while the amount of information transmitted in those fees 
have more than doubled in just the past five years, reflecting a 
substantial increase in customer value due to the significantly higher 
levels of liquidity currently available on the Exchange.
    Sixth, higher fees for the external distribution of TOPO, PHLX 
Orders, and TOPO Plus Orders are based on the additional value vendors 
receive from distributing data to their own customers and typically 
charging for the service.
Customers Have a Choice in Trading Venue
    Customers face many choices in where to trade options. Until 
recently, sixteen exchanges have offered options trading services,\28\ 
and they are now being joined by a 17th member.\29\ Not a single 
options exchange trades more than 11 percent of the options market by 
volume.\30\ PHLX, the second largest options exchange by volume, only 
has 9 percent of the options market.\31\ Only one of the 17 options 
exchanges have a market share over 10 percent.\32\ This broad 
dispersion of market share demonstrates that market participants can 
and do exercise choice in options trading venues. As the number of 
exchanges continues to grow, competition will become fiercer and 
customer choice will continue to expand.
---------------------------------------------------------------------------

    \28\ See OPRA Plan, list of OPRA Participant Exchanges, 
available at https://www.opraplan.com/faqs. (All options exchanges 
are members of the OPRA Plan.).
    \29\ See Securities Exchange Act Release No. 98388 (September 
14, 2023), 88 FR 64963 (September 20, 2023) (File No. 4-443) 
(``Joint Industry Plan; Notice of Filing and Immediate Effectiveness 
of Amendment to the Plan for the Purpose of Developing and 
Implementing Procedures Designed To Facilitate the Listing and 
Trading of Standardized Options To Add MEMX LLC as a Plan 
Sponsor'').
    \30\ See Nasdaq, Options Market Statistics (Last updated 
November 3, 2023), available at https://www.nasdaqtrader.com/Trader.aspx?id=OptionsVolumeSummary. On November 3, 2023, the total 
percentage of options market volume by exchange was as follows: 
ARCA: 11%; PHLX: 9%; CBOE: 9%; BOX: 8%; ISE: 7%; EDGX: 7%; AMEX: 7%; 
MIAX: 7%; MPRL: 7%; NOM: 6%; BATS: 6%; C2: 5%; EMLD: 4%; MRX: 3%; 
GEMX: 3%; BXOP: 3%; MEMX: 0%.
    \31\ See id.
    \32\ See id.
---------------------------------------------------------------------------

    In light of the number of trading venues available to customers, 
the Exchange must price its products, including TOPO, PHLX Orders, and 
TOPO Plus Orders (as well as other products), competitively. If not, 
customers would move to other venues. ``If competitive forces are 
operative, the self-interest of the exchanges themselves will work 
powerfully to constrain unreasonable or unfair behavior.'' \33\ 
Accordingly, ``the existence of significant competition provides a 
substantial basis for finding that the terms of an exchange's fee 
proposal are equitable, fair, reasonable, and not unreasonably or 
unfairly discriminatory.'' \34\
---------------------------------------------------------------------------

    \33\ See Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74,770 (December 9, 2008) (SR-NYSEArca-2006-21).
    \34\ Id.

---------------------------------------------------------------------------

[[Page 88200]]

The Top of Book Data in TOPO Is Sent to OPRA
    The top of book data in TOPO is sent to OPRA; under OPRA rules, 
proprietary options information is available to customers that have 
equivalent access to OPRA information, and therefore is supplementary 
to the OPRA feed.\35\ Specifically, Section 5.2(c)(iii) of the OPRA 
Plan provides that ``[a] Member [of the OPRA Plan] may disseminate its 
Proprietary Information,'' provided that ``such dissemination is 
limited to other Members and to persons who also have equivalent access 
to consolidated Options Information disseminated by OPRA for the same 
classes or series of options that are included in the Proprietary 
Information. . . .'' \36\ ``Consolidated Options Information'' refers 
to ``consolidated Last Sale Reports combined with either consolidated 
Quotation Information or the BBO furnished by OPRA.'' \37\ Access is 
deemed to be ``equivalent'' ``if both if both kinds of information are 
equally accessible on the same terminal or work station. . . .'' \38\
---------------------------------------------------------------------------

    \35\ See Limited Liability Company Agreement of Options Price 
Reporting Authority, LLC Sec.  5.2(c)(iii) (January 1, 2010), 
available at https://assets.website-files.com/5ba40927ac854d8c97bc92d7/5d0bd57d87d3ccca102102d7_OPRA%20Plan%20with%20Updated%20Exhibit%20A%20-%2006-19-2019.pdf (``OPRA Plan'').
    \36\ Id.
    \37\ Id.
    \38\ Id.
---------------------------------------------------------------------------

    Any customer that purchases proprietary options data from the 
Exchange, including TOPO and TOPO Plus Orders, must also have 
equivalent access to the OPRA Plan. As noted above, the best bid and 
offer and last sale information available from TOPO and TOPO Plus 
Orders fees is identical to the information simultaneously sent to OPRA 
by the Exchange.\39\ OPRA provides NBBO and last sale information on 
options transactions. TOPO and TOPO Plus Orders provide additional 
administrative information unique to trading on the Exchange, and also 
reduce the transmission and processing latencies generated through the 
process of consolidating data into the OPRA feed.\40\ Because top of 
book and last sale information is available on OPRA as well as TOPO, 
and customers who purchase TOPO have equivalent access to the OPRA 
feed, certain customers may choose to rely on the OPRA feed in lieu of 
purchasing PHLX data, thereby limiting the ability of the Exchange from 
charging excessive fees for its TOPO and TOPO Plus Orders feeds.
---------------------------------------------------------------------------

    \39\ As noted above, the TOPO feed includes administrative 
information (but not data) that is not provided on the OPRA feed, 
such as symbol directory messages. See Nasdaq, ``Top of Phlx Options 
Interface Specifications, Version 3.4'' Section 4.3 available at 
https://www.nasdaqtrader.com/content/technicalsupport/specifications/dataproducts/topofphlx.pdf (describing the start of 
day options directory message, which lists all symbols eligible for 
the auction process).
    \40\ The bid and offer and last sale information provided with 
the TOPO Plus Orders product is identical to the data sent to OPRA, 
although the ``orders'' component of TOPO Plus Orders is not.
---------------------------------------------------------------------------

The Purchase of PHLX Orders Is Optional
    Purchase of PHLX Orders is optional. As explained above, customers 
can obtain all of the data contained in PHLX Orders from PHLX Depth of 
Market feed, and may purchase the latter if they do not realize the 
cost savings offered by PHLX Orders. PHLX Orders is not a complement to 
any other product offered by the Exchange or any of its competitors; 
customers are free to purchase PHLX Orders or not, and can reject the 
feed for any reason, including the fee charged.
The Proposed Fees Are Comparable to Those of Other Exchanges
    The proposed fees are comparable to, and in some cases less than, 
those of other similarly-situated exchange fees. Options market 
statistics show that PHLX has a market share of approximately 9%. ARCA, 
with an 11% market share, and CBOE, with a 9% market share, are its 
closest competitors.\41\
---------------------------------------------------------------------------

    \41\ See Nasdaq, Options Market Statistics (Last updated 
November 3, 2023), available at https://www.nasdaqtrader.com/Trader.aspx?id=OptionsVolumeSummary.
---------------------------------------------------------------------------

    To obtain top of book and depth of book information for internal 
distribution (including both simple and complex options) from ARCA, a 
customer would be required to pay an Access Fee of $3,000 per month, a 
Non-Display fee of at least $5,000 per month for simple options, and a 
Non-Display fee of $1,000 for Complex Options, for a total of $9,000 
per month.\42\ To obtain the same information from PHLX under the new 
proposal, a customer would pay the Internal Distributor fee of $2,500 
for TOPO, and an Internal Distributor fee of $4,000 for PHLX Depth 
Data,\43\ for a total of $6,500 per month.
---------------------------------------------------------------------------

    \42\ See, NYSE Arca Options Proprietary Market Data Fees (as of 
July 3, 2023), available at https://www.nyse.com/publicdocs/nyse/data/NYSE_Arca_Options_Proprietary_Data_Fee_Schedule.pdf.
    \43\ See Options 7, Section 10 (Proprietary Data Feed Fees) 
(PHLX Depth Data). ARCA does not charge separately for top of book 
and depth of book. Although PHLX is not proposing to change fees for 
depth of book information, PHLX depth of book information is 
included here to maintain comparability.
---------------------------------------------------------------------------

    To obtain comparable information for Cboe Options, a customer would 
be required to pay a combined fee of $9,000 per month.\44\ As noted 
above, a PHLX customer would pay the Internal Distributor fee of $2,500 
for TOPO, and an Internal Distributor fee of $4,000 for PHLX Depth 
Data,\45\ for a total of $6,500 per month.
---------------------------------------------------------------------------

    \44\ See Cboe Data Services (CDS), Market Data Product Price 
List (updated July 1, 2023), available at https://cdn.cboe.com/resources/membership/US_Market_Data_Product_Price_List.pdf.
    \45\ See Options 7, Section 10 (Proprietary Data Feed Fees) 
(PHLX Depth Data). ARCA does not charge separately for top of book 
and depth of book. Although PHLX is not proposing to change fees for 
depth of book information, PHLX depth of book information is 
included here to ensure comparability.
---------------------------------------------------------------------------

    As such, the proposed fees are comparable to fees charged by 
industry peers, and therefore presumptively reasonable.
Real Exchange Fees Have Fallen While Traffic Has Increased
    As explained above, the Internal Distributor fee for TOPO Plus 
Orders was increased in 2018,\46\ while none of the other fees have 
changed for over a decade, since January 2013.\47\ This means that fees 
for TOPO, PHLX Orders, and TOPO Plus Orders have fallen in real terms 
due to inflation. At the same time, the average daily message count of 
PHLX has more than doubled in just five years, from approximately 3.0 
billion messages per day in 2018 to approximately 8.2 billion messages 
in 2023.\48\ The proposal is reasonable in light of the substantial 
increase in customer value generate by the higher levels of liquidity 
now available on the Exchange.
---------------------------------------------------------------------------

    \46\ See Securities Exchange Act Release No. 82495 (January 12, 
2018), 83 FR 2839 (January 19, 2018) (SR-Phlx-2018-08).
    \47\ See Securities Exchange Act Release No. 68576 (January 3, 
2013), 78 FR 1886 (January 9, 2013) (SR-Phlx-2012-145).
    \48\ PHLX Data (Average Daily Message Count was 2,979,919,551.32 
in 2018, and 8,243,516,029.17 thus far in 2023). The significant 
increases in data traffic has also required technological upgrades 
to manage the larger traffic volume and to respond to overall 
technological change in the industry. See, e.g., Securities Exchange 
Act Release No. 82495 (January 12, 2018), 83 FR 2839 (January 19, 
2018) (SR-Phlx-2018-08) (discussing a number of functional 
enhancements to both TOPO and PHLX Orders).
---------------------------------------------------------------------------

External Distributors Receive Additional Value
    External Distributors receive additional value not available to 
Internal Distributors by disseminating information externally and 
typically charging for the service. This additional value supports 
higher fees for external distribution for TOPO, PHLX Orders, and TOPO 
Plus Orders. Higher fees for external distribution of data are common 
throughout the industry, and

[[Page 88201]]

nearly universal among exchanges. The difference in value between 
internal and external distribution is also reflected in the current fee 
schedule, which has previously been shown to be consistent with the 
Exchange Act.
* * * * *
    In summary, the proposal represents an equitable allocation of 
reasonable dues, fees and other charges because: (i) customers have a 
choice in trading venue, and will exercise that choice and trade at 
another venue if exchange fees are not set competitively; (ii) the top 
of book data sent in the TOPO feed are also sent to OPRA, and customers 
have the option of relying on OPRA data; (iii) the purchase of PHLX 
Orders is entirely optional as it is a low-cost alternative to the PHLX 
Depth of Market product; (iv) the proposed fees are comparable to those 
of other exchanges; (v) exchange fees have fallen in real terms while 
the amount of liquidity available on the exchange has increased, and 
(vi) external vendors receive additional value from distributing data 
to their own customers and typically charging for the service, and 
therefore charging higher fees for external distribution is fair and 
reasonable.
No Unfair Discrimination
    The Proposal is not unfairly discriminatory. The three market data 
feeds at issue here--TOPO, PHLX Orders, and TOPO Plus Orders--are used 
by a variety of market participants for a variety of purposes. Users 
include regulators, market makers, competing exchanges, media, retail, 
academics, portfolio managers. Market data feeds will be available to 
members of all of these groups on a non-discriminatory basis.

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.
    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 options 
exchanges to compete. PHLX fees are comparable to, and in some cases 
less than, those of other exchanges, as discussed above.
    Nothing in the Proposal burdens intra-market competition (the 
competition among consumers of exchange data) because PHLX market data 
is available to any customer under the same fee schedule as any other 
customer, and any market participant that wishes to purchase PHLX 
market data 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.\49\
---------------------------------------------------------------------------

    \49\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

    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-2023-57 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-2023-57. 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-2023-57 and should be 
submitted on or before January 10, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\50\
---------------------------------------------------------------------------

    \50\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------


Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-27924 Filed 12-19-23; 8:45 am]
BILLING CODE 8011-01-P