[Federal Register Volume 78, Number 209 (Tuesday, October 29, 2013)]
[Notices]
[Pages 64569-64573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-25571]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-70748; File No. SR-Phlx-2013-105]
Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Establish
for PHLX Orders Managed Data Solution Fees for Non-Display Usage
October 23, 2013.
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 October 16, 2013, NASDAQ OMX PHLX LLC (``PHLX'' or the ``Exchange'')
filed with the Securities and Exchange Commission (``Commission'') a
proposed rule change as described in Items I and II 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
PHLX proposes to establish for PHLX orders (``PHLX Orders'')
Managed Data Solution fees for non-display usage (``Non-Display
Usage''), and to establish that Managed Data Solutions containing Top
of PHLX Options (also known as ``TOPO'') are for non-display usage.
While the changes proposed herein are effective upon filing, the
Exchange has designated that the amendments be operative on November 1,
2013.
The text of the proposed rule change is available at http://nasdaqomxphlx.cchwallstreet.com/nasdaqomxphlx/phlx/, at Phlx's
principal office, and at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
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 those 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 parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
PHLX is proposing to create a new data distribution model (a
Managed Data Solution for Non-Display Usage) to further the
distribution of the PHLX Orders datafeed. PHLX is also proposing to
establish that Managed Data Solutions containing Top of PHLX Options
are for non-display usage. The proposed Managed Data Solution for non-
display usage is similar to data distribution models currently in use
and aligns PHLX with other markets in the NASDAQ OMX Group.\3\
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\3\ See Securities Exchange Act Release Nos. 70269 (August 27,
2013), 78 FR 54336 (September 3, 2013) (SR-NASDAQ-2013-106) (notice
of filing and immediate effectiveness of proposed rule change to
establish non-display Managed Data Solution for equities on NASDAQ);
and 69182 (March 19, 2013), 78 FR 18378 (March 26, 2013) (SR-Phlx-
2013-28) (notice of filing and immediate effectiveness of proposed
rule change to establish non-display Managed Data Solution for Phlx
equities market PSX). See also Securities Exchange Act Release No.
69041 (March 5, 2013), 78 FR 15791 (March 12, 2013) (SR-BX-2013-018)
(notice of filing and immediate effectiveness of proposed rule
change to establish Managed Data Solution for BX).
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The Managed Data Solution proposal offers a delivery method to
firms seeking simplified market data administration. The Managed Data
Solution for Non-Display Usage may be offered by Distributors
externally distributing data to clients and/or client organizations
that are using the PHLX Orders information internally for Non-Display
Usage. This new pricing and administrative option is in response to
industry demand, as well as due to changes in the technology used to
distribute market data. As such, rather than substantive changes the
proposal reflects current data distribution practices in the industry.
Distributors offering Managed Data Solutions for Non-Display Usage
continue to be fee liable for the applicable distributor fees for the
receipt and distribution of PHLX Orders data.
This Managed Data Solution for Non-Display Usage is a delivery
option that will assess a new, innovative fee schedule to Distributors
of PHLX Orders that provide data feed solutions such as an Application
Programming Interface (API) or similar automated delivery solutions to
Recipients for Non-Display Usage with only limited entitlement controls
(e.g., usernames and/or passwords) (``Managed Data Recipients'').
However, the Distributor must first agree to reformat, redisplay and/or
alter the PHLX Orders data prior to retransmission, but not to affect
the integrity of the PHLX Orders data and not to render it inaccurate,
unfair, uninformative, fictitious, misleading, or discriminatory. A
Managed Data Solution for Non-Display Usage is any retransmission data
product containing PHLX Orders offered by a Distributor where the
Distributor manages and monitors, but does not control, the
information. However, the Distributor does maintain contracts with the
Managed Data Recipients and is liable for any unauthorized use by the
Managed Data Recipients under a Managed Data Solution. The Recipient of
a Managed Data Solution may use the information for internal Non-
Display purposes only and may not distribute the information outside of
their organization.
[[Page 64570]]
Currently, the Exchange does not distinguish between Managed Data
Solution Recipients and a recipient of an uncontrolled data product.
Some Distributors believe that the Managed Data Solution for Non-
Display Usage is a viable alternative to an uncontrolled data product.
Some Distributors have even delayed deploying new PHLX Orders
offerings, pending the initiation of Managed Data Solutions for Non-
Display Usage. Thus, offering a Managed Data Solution fee schedule
would not only result in PHLX offering lower fees for existing Managed
Data Recipients utilizing a Managed Data Solution, but will allow new
Distributors to deliver Managed Data Solutions to new clients, thereby
increasing transparency of the market.
PHLX proposes to establish two fees for Distributors that adopt the
Managed Data Solution for Non-Display Usage to Distributors, a monthly
Managed Data Solution Administration fee of $2,000 and a monthly
Subscriber fee of $500.\4\ The proposed monthly License fee would be in
addition to the monthly Distributor fee of $3,500 (for external usage)
currently set forth in Section IX of the PHLX Pricing Schedule, and the
$500 monthly Subscriber fee would be assessed for each Subscriber of a
Managed Data Solution. PHLX proposes to establish that Managed Data
Solution for Top of PHLX is for non-display usage only,\5\ as is done
on other markets. The Exchange believes that the proposal is in line
with current market practice.
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\4\ Without a Managed Data Solution as proposed herein, the
current fee for internal distribution that is not a Managed Data
Solution but rather an uncontrolled PHLX Orders data product with a
distributor fee of $3,000 per month would apply (along with a $40
professional subscriber fee). Per the proposal for the Managed Data
Solution, on the other hand, the managed data recipient fee for non-
display internal use of PHLX Orders managed data would be $500 per
subscriber, thereby providing a reduced cost option where the data
is for non-distribution only.
\5\ The Exchange believes that most firms currently use TOPO in
non-display format.
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2. Statutory Basis
PHLX believes that the proposed rule change is consistent with the
provisions of Section 6 of the Act,\6\ in general, and with Section
6(b)(4) of the Act,\7\ in particular, in that it provides an equitable
allocation of reasonable fees among Subscribers and Recipients of PHLX
data. In adopting Regulation NMS, the Commission granted self-
regulatory organizations (``SROs'') and broker-dealers (``BDs'')
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.
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\6\ 15 U.S.C. 78f.
\7\ 15 U.S.C. 78f(b)(4).
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The Commission concluded that Regulation NMS--by lessening the
regulation of the market in proprietary data--would itself further the
Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the
data beyond the prices, sizes, market center identifications of the
NBBO and consolidated last sale information are not required to
receive (and pay for) such data. The Commission also believes that
efficiency is promoted when broker-dealers may choose to receive
(and pay for) additional market data based on their own internal
analysis of the need for such data.\8\
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\8\ Securities Exchange Act Release No. 51808 (June 9, 2005), 70
FR 37496 (June 29, 2005).
By removing ``unnecessary regulatory restrictions'' on the ability of
exchanges to sell their own data, Regulation NMS advanced the goals of
the Act and the principles reflected in its legislative history. If the
free market should determine whether proprietary data is sold to BDs at
all, it follows that the price at which such data is sold should be set
by the market as well.
The decision of the United States Court of Appeals for the District
of Columbia Circuit in NetCoaliton v. SEC, 615 F.3d 525 (D.C. Cir.
2010) (``NetCoalition I''), upheld the Commission's reliance upon
competitive markets to set reasonable and equitably allocated fees for
market data. ``In fact, the legislative history indicates that the
Congress intended that the market system `evolve through the interplay
of competitive forces as unnecessary regulatory restrictions are
removed' and that the SEC wield its regulatory power `in those
situations where competition may not be sufficient,' such as in the
creation of a `consolidated transactional reporting system.'
NetCoaltion I, at 535 (quoting H.R. Rep. No. 94-229, at 92 (1975), as
reprinted in 1975 U.S.C.C.A.N. 321, 323). The court agreed with the
Commission's conclusion that ``Congress intended that `competitive
forces should dictate the services and practices that constitute the
U.S. national market system for trading equity securities.' '' \9\
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\9\ NetCoalition I, at 535.
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The court in NetCoalition I, while upholding the Commission's
conclusion that competitive forces may be relied upon to establish the
fairness of prices, nevertheless concluded that the record in that case
did not adequately support the Commission's conclusions as to the
competitive nature of the market for NYSE Arca's data product at issue
in that case. As explained below in PHLX's Statement on Burden on
Competition, however, PHLX believes that there is substantial evidence
of competition in the marketplace for data that was not in the record
in the NetCoalition I case, and that the Commission is entitled to rely
upon such evidence in concluding that the fees established in this
filing are the product of competition, and therefore in accordance with
the relevant statutory standards.\10\ Moreover, PHLX further notes that
the product at issue in this filing--PHLX Orders Managed Data Solution
fees--is quite different from the NYSE Arca depth-of-book data product
at issue in NetCoalition I. Accordingly, any findings of the court with
respect to that product may not be relevant to the product at issue in
this filing.
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\10\ It should also be noted that Section 916 of the Dodd-Frank
Wall Street Reform and Consumer Protection Act of 2010 (``Dodd-Frank
Act'') has amended paragraph (A) of Section 19(b)(3) of the Act, 15
U.S.C. 78s(b)(3), to make it clear that all exchange fees, including
fees for market data, may be filed by exchanges on an immediately
effective basis.
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B. Self-Regulatory Organization's Statement on Burden on Competition
PHLX does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended. PHLX's ability to
price its PHLX Orders Managed Data Solution fees is constrained by (1)
competition between exchanges and other trading platforms that compete
with each other in a variety of dimensions; (2) the existence of
inexpensive real-time consolidated data and market-specific data and
free delayed consolidated data; and (3) the inherent contestability of
the market for this data.
The market for proprietary data products is currently competitive
and inherently contestable because there is fierce competition for the
inputs necessary to the creation of proprietary data and strict pricing
discipline for the proprietary products themselves. Numerous exchanges
compete with each other for listings, trades, and market data itself,
providing virtually limitless opportunities for entrepreneurs who wish
to produce and distribute their own market data. This proprietary data
is produced by each individual exchange, as well as other entities, in
a vigorously competitive market.
[[Page 64571]]
Transaction execution and proprietary data products are
complementary in that market data is both an input and a byproduct of
the execution service. In fact, market data and trade execution are a
paradigmatic example of joint products with joint costs. The decision
whether and on which platform to post an order will depend on the
attributes of the platform where the order can be posted, including the
execution fees, data quality and price and distribution of its data
products. Without trade executions, exchange data products cannot
exist. Moreover, data products are valuable to many end users only
insofar as they provide information that end users expect will assist
them or their customers in making trading decisions.
The costs of producing market data include not only the costs of
the data distribution infrastructure, but also the costs of designing,
maintaining, and operating the exchange's transaction execution
platform and the cost of regulating the exchange to ensure its fair
operation and maintain investor confidence. The total return that a
trading platform earns reflects the revenues it receives from both
products and the joint costs it incurs. Moreover, the operation of the
exchange is characterized by high fixed costs and low marginal costs.
This cost structure is common in content and content distribution
industries such as software, where developing new software typically
requires a large initial investment (and continuing large investments
to upgrade the software), but once the software is developed, the
incremental cost of providing that software to an additional user is
typically small, or even zero (e.g., if the software can be downloaded
over the internet after being purchased).\11\ In PHLX's case, it is
costly to build and maintain a trading platform, but the incremental
cost of trading each additional share on an existing platform, or
distributing an additional instance of data, is very low. Market
information and executions are each produced jointly (in the sense that
the activities of trading and placing orders are the source of the
information that is distributed) and are each subject to significant
scale economies. In such cases, marginal cost pricing is not feasible
because if all sales were priced at the margin, PHLX would be unable to
defray its platform costs of providing the joint products.
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\11\ See William J. Baumol and Daniel G. Swanson, ``The New
Economy and Ubiquitous Competitive Price Discrimination: Identifying
Defensible Criteria of Market Power,'' Antitrust Law Journal, Vol.
70, No. 3 (2003).
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An exchange's BD customers view the costs of transaction executions
and of data as a unified cost of doing business with the exchange. A BD
will direct orders to a particular exchange only if the expected
revenues from executing trades on the exchange exceed net transaction
execution costs and the cost of data that the BD chooses to buy to
support its trading decisions (or those of its customers). The choice
of data products is, in turn, a product of the value of the products in
making profitable trading decisions. If the cost of the product exceeds
its expected value, the BD will choose not to buy it. Moreover, as a BD
chooses to direct fewer orders to a particular exchange, the value of
the product to that BD decreases, for two reasons. First, the product
will contain less information, because executions of the BD's trading
activity will not be reflected in it. Second, and perhaps more
important, the product will be less valuable to that BD because it does
not provide information about the venue to which it is directing its
orders. Data from the competing venue to which the BD is directing
orders will become correspondingly more valuable.
Similarly, in the case of products such as this that are
distributed through market data vendors, the vendors provide price
discipline for proprietary data products because they control the
primary means of access to end users. Vendors impose price restraints
based upon their business models. For example, vendors such as
Bloomberg and Reuters that assess a surcharge on data they sell may
refuse to offer proprietary products that end users will not purchase
in sufficient numbers. Internet portals, such as Google, impose a
discipline by providing only data that will enable them to attract
``eyeballs'' that contribute to their advertising revenue. Retail BDs,
such as Schwab and Fidelity, offer their customers proprietary data
only if it promotes trading and generates sufficient commission
revenue. Although the business models may differ, these vendors'
pricing discipline is the same: They can simply refuse to purchase any
proprietary data product that fails to provide sufficient value. PHLX
and other producers of proprietary data products must understand and
respond to these varying business models and pricing disciplines in
order to market proprietary data products successfully. Moreover, PHLX
believes that products such as this can enhance order flow to PHLX,
thereby encouraging wider participation in the market by investors with
access to the Internet or television. Conversely, the value of such
products to distributors and investors decreases if order flow falls,
because the products contain less content.
Analyzing the cost of market data distribution in isolation from
the cost of all of the inputs supporting the creation of market data
will inevitably underestimate the cost of the data. Thus, because it is
impossible to create data without a fast, technologically robust, and
well-regulated execution system, system costs and regulatory costs
affect the price of market data. It would be equally misleading,
however, to attribute all of the exchange's costs to the market data
portion of an exchange's joint product. Rather, all of the exchange's
costs are incurred for the unified purposes of attracting order flow,
executing and/or routing orders, and generating and selling data about
market activity. The total return that an exchange earns reflects the
revenues it receives from the joint products and the total costs of the
joint products.
Competition among trading platforms can be expected to constrain
the aggregate return each platform earns from the sale of its joint
products, but different platforms may choose from a range of possible,
and equally reasonable, pricing strategies as the means of recovering
total costs. For example, some platforms may choose to pay rebates to
attract orders, charge relatively low prices for market information (or
provide information free of charge) and charge relatively high prices
for accessing posted liquidity. Other platforms may choose a strategy
of paying lower liquidity rebates to attract orders, setting relatively
low prices for accessing posted liquidity and setting relatively high
prices for market information. Still others may provide most data free
of charge and rely exclusively on transaction fees to recover their
costs. Finally, some platforms may incentivize use by providing
opportunities for equity ownership, which may allow them to charge
lower direct fees for executions and data.
In this environment, there is no economic basis for regulating
maximum prices for one of the joint products in an industry in which
suppliers face competitive constraints with regard to the joint
offering. Such regulation is unnecessary because an ``excessive'' price
for one of the joint products will ultimately have to be reflected in
lower prices for other products sold by the firm, or otherwise the firm
will experience a loss in the volume of its sales that will be adverse
to its overall profitability. In other words, an increase
[[Page 64572]]
in the price of data will ultimately have to be accompanied by a
decrease in the cost of executions, or the volume of both data and
executions will fall.
The level of competition and contestability in the market is
evident in the numerous alternative venues that compete for order flow,
including thirteen SRO markets, as well as internalizing BDs and
various forms of alternative trading systems (``ATSs''), including dark
pools and electronic communication networks (ECNs''). Each SRO market
competes to produce transaction reports via trade executions, and two
FINRA-regulated TRFs compete to attract internalized transaction
reports. It is common for BDs to further and exploit this competition
by sending their order flow and transaction reports to multiple
markets, rather than providing them all to a single market. Competitive
markets for order flow, executions, and transaction reports provide
pricing discipline for the inputs of proprietary data products.
The large number of SROs, TRFs, BDs, and ATSs that currently
produce proprietary data or are currently capable of producing it
provides further pricing discipline for proprietary data products. Each
SRO, TRF, ATS, and BD is currently permitted to produce proprietary
data products, and many currently do or have announced plans to do so,
including NASDAQ, NYSE, NYSE MKT, NYSE Arca, BATS, and Direct Edge.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs
or BDs to produce joint proprietary data products. Additionally, order
routers and market data vendors can facilitate single or multiple BD'
production of proprietary data products. The potential sources of
proprietary products are virtually limitless.
Market data vendors provide another form of price discipline for
proprietary data products because they control the primary means of
access to end Subscribers. Vendors impose price restraints based upon
their business models. For example, vendors such as Bloomberg and
Thomson Reuters that assess a surcharge on data they sell may refuse to
offer proprietary products that end Subscribers will not purchase in
sufficient numbers. Internet portals, such as Google, impose a
discipline by providing only data that will enable them to attract
``eyeballs'' that contribute to their advertising revenue. Retail
broker-dealers, such as Schwab and Fidelity, offer their customers
proprietary data only if it promotes trading and generates sufficient
commission revenue. Although the business models may differ, these
vendors' pricing discipline is the same: they can simply refuse to
purchase any proprietary data product that fails to provide sufficient
value. PHLX and other producers of proprietary data products must
understand and respond to these varying business models and pricing
disciplines in order to market proprietary data products successfully.
In addition to the competition and price discipline described
above, the market for proprietary data products is also highly
contestable because market entry is rapid, inexpensive, and profitable.
The history of electronic trading is replete with examples of entrants
that swiftly grew into some of the largest electronic trading platforms
and proprietary data producers: Archipelago, Bloomberg Tradebook,
Island, RediBook, Attain, TracECN, BATS Trading and Direct Edge. A
proliferation of dark pools and other ATSs operate profitably with
fragmentary shares of consolidated market volume.
Regulation NMS, by deregulating the market for proprietary data,
has increased the contestability of that market. While BDs have
previously published their proprietary data individually, Regulation
NMS encourages market data vendors and BDs to produce proprietary
products cooperatively in a manner never before possible. Multiple
market data vendors already have the capability to aggregate data and
disseminate it on a profitable scale, including Bloomberg, and Thomson
Reuters.
Competition among platforms has driven PHLX continually to improve
its platform data offerings and to cater to customers' data needs. For
example, PHLX has developed and maintained multiple delivery mechanisms
(IP, multi-cast, and compression) that enable customers to receive data
in the form and manner they prefer and at the lowest cost to them. PHLX
has created new products like Depth Data, TOPO and TOPO Plus Orders,
because offering data in multiple formatting allows PHLX to better fit
customer needs. PHLX offers data via multiple extranet providers,
thereby helping to reduce network and total cost for its data products.
PHLX has developed an online administrative system to provide customers
transparency into their datafeed requests and streamline data usage
reporting.
Despite these enhancements and a dramatic increase in message
traffic, PHLX's fees for market data have remained flat. In fact, as a
percent of total Subscriber costs, PHLX data fees have fallen relative
to other data usage costs--including bandwidth, programming, and
infrastructure--that have risen. The same holds true for execution
services; despite numerous enhancements to PHLX's trading platform,
absolute and relative trading costs have declined. Platform competition
has intensified as new entrants have emerged, constraining prices for
both executions and for data.
The vigor of competition for proprietary information is significant
and the Exchange believes that this proposal itself clearly evidences
such competition. PHLX is offering a new pricing model in order to keep
pace with changes in the industry and evolving customer needs. It is
entirely optional and is geared towards attracting new customers, as
well as retaining existing customers.
The Exchange has witnessed competitors creating new products and
innovative pricing in this space over the course of the past year. PHLX
continues to see firms challenge its pricing on the basis of the
Exchange's explicit fees being higher than the zero-priced fees from
other competitors such as BATS. In all cases, firms make decisions on
how much and what types of data to consume on the basis of the total
cost of interacting with PHLX or other exchanges. Of course, the
explicit data fees are but one factor in a total platform analysis.
Some competitors have lower transactions fees and higher data fees, and
others are vice versa. The market for this proprietary information is
highly competitive and continually evolves as products develop and
change.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
Written comments were neither solicited nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\12\ At any time within 60 days of the
filing of the proposed rule change, the Commission summarily may
temporarily suspend such rule change if it appears to the Commission
that such action is necessary or appropriate in the public interest,
for the protection of investors, or otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine
[[Page 64573]]
whether the proposed rule should be approved or disapproved.
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\12\ 15 U.S.C. 78s(b)(3)(a)(ii).
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IV. Solicitation of Comment
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-Phlx-2013-105 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-Phlx-2013-105. 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 Web site (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 Web site viewing and
printing in the Commission's Public Reference Room on official business
days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such
filing also will be available for inspection and copying at the
principal offices of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-Phlx-2013-105, and should be submitted on or before
November 19, 2013.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
Kevin M. O'Neill,
Deputy Secretary.
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\13\ 17 CFR 200.30-3(a)(12).
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[FR Doc. 2013-25571 Filed 10-28-13; 8:45 am]
BILLING CODE 8011-01-P