[Federal Register Volume 89, Number 59 (Tuesday, March 26, 2024)]
[Notices]
[Pages 21148-21151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06332]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99797; File No. SR-Phlx-2024-12]


Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend the 
Cabinet Proximity Option Fee To Establish a Reservation Fee for 
Cabinets With Power Densities Greater Than 10kW

March 20, 2024.
    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 March 13, 2024, 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 amend the Exchange's Cabinet Proximity 
Option

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Fee at General 8, Section 1, 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 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 \3\ is to amend the 
Exchange's Cabinet Proximity Option Fee at General 8, Section 1(d) by 
establishing a reservation fee for cabinets with power densities 
greater than 10 kilowatts (``kW'').\4\
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    \3\ The Exchange initially filed the proposed pricing change on 
March 1, 2024 (SR-Phlx-2024-09). The instant filing replaces SR-
Phlx-2024-09, which was withdrawn on March 13, 2024.
    \4\ On February 26, 2024, the Exchange filed a proposal to offer 
the Exchange's Cabinet Proximity Option program for cabinets with 
power densities greater than 10 kW. See Securities Exchange Act 
Release No. 34-99644 (February 29, 2024), 89 FR 16069 (March 6, 
2024) (SR-Phlx-2024-06).
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    The Exchange currently offers a Cabinet Proximity Option program 
where, for a monthly fee, customers can obtain an option for future use 
on available, unused cabinet space in proximity to their existing 
equipment. Cabinets reserved under the Cabinet Proximity Option program 
are unused cabinets that customers reserve for future use and can be 
converted to a powered cabinet at the customer's request. Under the 
program, customers can reserve up to maximum of 20 cabinets that the 
Exchange endeavors to provide as close as reasonably possible to the 
customer's existing cabinet space, taking into consideration power 
availability within segments of the data center and the overall 
efficiency of use of data center resources as determined by the 
Exchange. Should reserved data center space be needed for use, the 
reserving customer will have three business days to formally contract 
with the Exchange for full payment for the reserved cabinet space or it 
will be reassigned. In making determinations to require exercise or 
relinquishment of reserved space as among numerous customers, the 
Exchange will take into consideration several factors, including: 
proximity between available reserved cabinet space and the existing 
space of a customer seeking additional space for actual cabinet usage; 
a customer's ratio of cabinets in use to those reserved; the length of 
time that a particular reservation(s) has been in place; and any other 
factor that the Exchange deems relevant to ensure overall efficiency in 
use of the data center space.\5\
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    \5\ See Securities Exchange Act Release No. 34-62395 (June 28, 
2010), 75 FR 38584 (July 2, 2010)(SR-Phlx-2010-18).
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    The applicable monthly fees for the Cabinet Proximity Option 
program are in General 8, Section 1(d). The Cabinet Proximity Option 
fee is $1,055/month \6\ per medium or low density cabinets and $1,583/
month \7\ per medium/high or high density cabinets.\8\ The Exchange 
proposes to establish a Cabinet Proximity Option fee of $3,000 for 
cabinets with power densities greater than 10 kW.\9\ As such, the 
Exchange proposes to amend its fee schedule at General 8, Section 1(d) 
to reflect the addition to the existing Cabinet Proximity Option fees.
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    \6\ On March 1, 2024, the Exchange increased the fee from $1,000 
to $1,055. See SR-Phlx-2024-08 (not yet published).
    \7\ On March 1, 2024, the Exchange increased the fee from $1,500 
to $1,583. See SR-Phlx-2024-08 (not yet published).
    \8\ Low density cabinets are cabinets with power densities less 
than or equal to 2.88 kW. Medium density cabinets are cabinets with 
power densities greater than 2.88 kW and less than or equal to 5 kW. 
Medium/High density cabinets are cabinets with power densities 
greater than 5 kW and less than or equal to 7 kW. High density 
cabinets are cabinets with power densities greater than 7 kW and 
less than 10 kW. See General 8, Section 1(a).
    \9\ Currently, the Exchange offers Super High Density Cabinets 
with power densities greater than 10 kW and less than or equal to 
17.3 kW. See General 8, Section 1(a). In addition, the Exchange 
intends to offer cabinets with new power densities in the future, 
including power densities greater than 17.3 kW.
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    The proposed Cabinet Proximity Option fee of $3,000 would only be 
charged to those customers that voluntarily choose to reserve cabinets 
with power densities greater than 10 kW. Such option is available to 
all customers. Similar to other fees related to cabinet and power 
usage, the Cabinet Proximity Option fee is incremental, with higher 
fees being imposed based on higher levels of cabinet and power 
allocation. The proposed Cabinet Proximity Option fee of $3,000 for 
cabinets with power densities greater than 10 kW is comparable to 
pricing for ``PNU cabinets'' \10\ available to customers of co-location 
facilities of the New York Stock Exchange LLC (``NYSE''), which charges 
a monthly fee of $360 per kW for PNU cabinets.\11\
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    \10\ Similar to the Exchange's Cabinet Proximity Option program, 
the New York Stock Exchange offers ``PNU cabinets,'' which are 
reserved cabinets that are not active and can be converted to 
powered, dedicated cabinets when the user requests. Due to 
heightened demand for power and cabinets, NYSE established certain 
procedures related to PNU cabinet conversion and restrictions on new 
PNU cabinet offerings. NYSE adopted a policy that, if unallocated 
cabinet inventory is at or below 40 cabinets, new PNU cabinets are 
not offered. However, when the unallocated cabinet inventory is more 
than 40 cabinets, NYSE may continue to offer PNU cabinets. See 
Securities Exchange Act Release No. 34-90732 (December 18, 2020), 85 
FR 84443 (December 28, 2020). See also Securities Exchange Act 
Release No. 34-91515 (April 8, 2021), 86 FR 19674 (April 14, 2021).
    \11\ See NYSE Connectivity Fee Schedule, available at https://www.nyse.com/publicdocs/Wireless_Connectivity_Fees_and_Charges.pdf.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\12\ in general, and furthers the objectives of 
Sections 6(b)(4) and 6(b)(5) of the Act,\13\ 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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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(4) and (5).
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    First, the proposal is reasonable because the proposed fee is 
comparable to NYSE's monthly fee of $360 per kW for PNU cabinets.\14\ 
As noted above, NYSE offers ``PNU cabinets,'' which are reserved 
cabinets that are not active and can be converted to powered, dedicated 
cabinets when the user requests.\15\ The Exchange's proposal would 
establish a flat $3,000 Cabinet Proximity Option fee for cabinets with 
power densities greater than 10 kW. Under NYSE's fee schedule, a 
reservation for a cabinet with power density equal to 10 kW would be 
$3,600 (e.g., 10 kW x $360). Because NYSE's PNU cabinet fees are 
charged on a per kW basis, PNU cabinet fees for cabinets with power 
densities greater than 10 kW would be more than $3,600 and increase as 
the power density of the cabinet increases. Therefore, the Exchange's 
proposal reflects a discounted price to reserve

[[Page 21150]]

such cabinets as compared to NYSE's fees for comparable PNU cabinets.
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    \14\ See NYSE Connectivity Fee Schedule, available at https://www.nyse.com/publicdocs/Wireless_Connectivity_Fees_and_Charges.pdf.
    \15\ Supra note 10.
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    Furthermore, the Exchange offers the Cabinet Proximity Option 
program as a convenience to customers, providing an option to reserve 
unused cabinet space in proximity to their existing equipment. No firms 
are required to reserve cabinets via the Cabinet Proximity Option 
program. Clients may simply order cabinets without utilizing 
reservations. The proposed Cabinet Proximity Option fee of $3,000 would 
only be charged to those customers that voluntarily choose to reserve 
cabinets with power densities greater than 10 kW and such option is 
available to all customers.
    The Exchange believes substitutable products and services are 
available to market participants, including, among other things, other 
equities and options exchanges that a market participant may connect to 
in lieu of the Exchange,\16\ connectivity to the Exchange via a third-
party reseller of connectivity, and/or trading of equities or options 
products within markets which do not require connectivity to the 
Exchange, such as the Over-the-Counter (OTC) markets. Market 
participants that wish to connect to the Exchange will continue to 
choose the method of connectivity based on their specific needs. Market 
participants that wish to connect to the Exchange but want to avoid or 
mitigate the effect of this proposed fee can choose to connect to the 
Exchange through a vendor (or order cabinets without reservations, as 
noted above).
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    \16\ There are currently 16 registered equities exchanges that 
trade equities and 17 exchanges offering options trading services. 
No single equities exchange has more than 15% of the market share. 
See Cboe Global Markets, U.S. Equities Market Volume Summary, Month-
to-Date (Last updated January 11, 2024), available at https://www.cboe.com/us/equities/market_statistics/. No single options 
exchange trades more than 14% of the options market by volume and 
only one of the 17 options exchanges has a market share over 10 
percent. See Nasdaq, Options Market Statistics (Last updated January 
11, 2024), available at https://www.nasdaqbtrader.com/Trader.aspx?id=OptionsVolumeSummary. This broad dispersion of market 
share demonstrates that market participants can and do exercise 
choice in trading venues. Further, low barriers to entry mean that 
new exchanges may rapidly enter the market and offer additional 
substitute platforms to further compete with the Exchange and the 
products it offers.
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    In offering the Cabinet Proximity Option the Exchange incurs 
certain costs, including costs related to the data center, including 
maintaining an adequate level of power so that reserved cabinets can be 
available and powered on promptly at the request of customers.
    If the Exchange is incorrect in its determination that the proposed 
fee reflects the value of the Cabinet Proximity Option for cabinets 
with power densities greater than 10 kW, customers will not reserve 
such cabinets.
    In summary, the proposal represents an equitable allocation of 
reasonable dues, fees and other charges because the proposed fee is 
less than NYSE's fee for a comparable service, customers have choices 
in how they connect to the Exchange, and reservations under the Cabinet 
Proximity Option program are optional and provided as a convenience to 
customers.
    The Exchange believes that the proposed fee change is not unfairly 
discriminatory because the Cabinet Proximity Option fee is assessed 
uniformly across all market participants that voluntarily select the 
option, which is available to all customers. All customers have the 
choice of whether and how to connect to the Exchange and may order 
cabinets without utilizing reservations.

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 because 
approval of the proposal does not impose any burden on the ability of 
other exchanges to compete. The Exchange operates in a highly 
competitive market in which market participants can determine whether 
or not to connect to the Exchange based on the value received compared 
to the cost of doing so. Indeed, market participants have numerous 
alternative exchanges that they may participate on and direct their 
order flow, as well as off-exchange venues, where competitive products 
are available for trading.
    Nothing in the proposal burdens intra-market competition because 
the Cabinet Proximity Option program is available to any customer under 
the same fees as any other customer, and any customer that wishes to 
reserve a cabinet pursuant to the Cabinet Proximity Option program 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-2024-12 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-2024-12. 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,

[[Page 21151]]

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-2024-12 and should be 
submitted on or before April 16, 2024.

    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. 2024-06332 Filed 3-25-24; 8:45 am]
BILLING CODE 8011-01-P