[Federal Register Volume 79, Number 176 (Thursday, September 11, 2014)]
[Notices]
[Pages 54315-54322]
[FR Doc No: 2014-21650]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-73011; File No. SR-NYSEARCA-2014-93]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change Amending Its Fees
for Non-Display Use of NYSE Arca Integrated Fee, NYSE ArcaBook, NYSE
Arca Trades, and NYSE Arca BBO, and To Establish a Fee for Managed Non-
Services for NYSE Arca BBO

September 5, 2014.
    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 August 25, 2014, NYSE Arca, Inc. (``Exchange'' or ``NYSE
Arca'') filed with the Securities and Exchange Commission
(``Commission'' or ``SEC'') the proposed rule change as described in
Items I, II, and III below, which Items have been prepared by the self-
regulatory organization. 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 its fees for non-display use of NYSE
Arca Integrated Fee, NYSE ArcaBook, NYSE Arca Trades, and NYSE Arca
BBO, and to establish a fee for managed non-services for NYSE Arca BBO,
operative on September 1, 2014. The text of the proposed rule change is
available on the Exchange's Web site at www.nyse.com, 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 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 the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend its non-display fees for NYSE Arca
Integrated Feed, NYSE ArcaBook, NYSE Arca Trades, and NYSE Arca BBO,
and to establish a fee for managed non-display services for NYSE Arca
BBO, operative on September 1, 2014.\3\ The Exchange also proposes
corresponding changes to the Fee Schedule text to remove references to
the current category descriptions.
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    \3\ The Exchange's affiliates have submitted or will be
submitting similar proposals. See, e.g., SR-NYSE-2014-43.
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    The Exchange established the current non-display and managed non-
display services fees for NYSE Arca Integrated Feed, NYSE ArcaBook,
NYSE Arca Trades, and NYSE Arca BBO in April 2013.\4\ The Exchange now
proposes to change those fees and establish a fee for managed non-
display services for NYSE Arca BBO.
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    \4\ See Securities Exchange Act Release No. 69315 (April 5,
2013), 78 FR 21668 (April 11, 2013) (SR-NYSEArca-2013-37) (``2013
Release'').
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    Under the proposal, non-display use would continue to mean
accessing, processing, or consuming an Exchange data product delivered
via direct and/or Redistributor \5\ data feeds for a purpose other than
in support of a data recipient's display or further internal or
external redistribution (``Non-Display Use''). As is the case today,
non-display and managed non-display services fees would apply to the
Non-Display Use of the data product as part of automated calculations
or algorithms to support trading decision-making processes or the
operation of trading platforms.
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    \5\ ``Redistributor'' means a vendor or any person that provides
a real-time NYSE data product to a data recipient or to any system
that a data recipient uses, irrespective of the means of
transmission or access.
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    The Exchange is proposing to expand the types of uses considered
Non-Display Use to also include non-trading uses. In addition, the
proposal would specify that Non-Display Use would include any trading
use, rather than only certain types of trading, such as high frequency
or algorithmic trading, as under the current fee structure. Under the
proposal, examples of Non-Display Use would include any trading in any
asset class, automated order or quote generation and/or order pegging,
price referencing for algorithmic trading or smart order routing,
operations control programs, investment analysis, order verification,
surveillance programs, risk management,

compliance, and portfolio management. The Exchange believes that non-
trading uses benefit data recipients by allowing users to automate
functions, achieving greater speed and accuracy, and in turn, for
example, reducing costs of labor to perform the functions manually.
This approach would address the difficulties of monitoring and auditing
different types of trading versus non-trading uses of the data and the
burden of counting devices used for non-trading purposes under the
current fees.
Proposed Changes to Non-Display Fees
    The Exchange proposes to amend the fee structure applicable to Non-
Display Use of NYSE Arca Integrated Feed, NYSE ArcaBook, NYSE Arca BBO,
and NYSE Arca Trades and to establish a fee for managed non-display
services for NYSE Arca BBO. Specifically, the Exchange proposes certain
changes to the three categories of, and fees applicable to, data
recipients.
    Under the proposal, Category 1 Fees would apply when a data
recipient's Non-Display Use of real-time market data is on its own
behalf as opposed to use on behalf of its clients. This proposal
represents an expansion of the application of Category 1 Fees, which
currently apply solely to the Non-Display Use of real time market data
for the purpose of principal trading, to usage of such data for non-
trading purposes.
    Under the proposal, Category 2 Fees would apply to a data
recipient's Non-Display Use of real-time market data on behalf of its
clients as opposed to on its own behalf. This proposal also represents
an expansion of the application of Category 2 Fees, which currently
apply solely to trading activities to facilitate a customer business,
to usage of such data for non-trading purposes. As under the current
fee, if a data recipient's use of Exchange market data is covered by
Category 1 and Category 2, then the data recipient must pay both
categories of fees.\6\
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    \6\ See 2013 Release, supra note 4, at 21671.
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    The Exchange believes its proposal to apply Category 1 Fees and
Category 2 Fees to Non-Display Use of market data for non-trading
purposes would address the difficulties of monitoring and auditing
trading versus non-trading uses of the data and the burden of counting
devices used for purposes of applying the per-device fees. As discussed
in more detail in the 2013 Release,\7\ the ability to accurately count
devices and audit such counts creates administrative challenges for
vendors, data recipients, and the Exchange.
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    \7\ See 2013 Release, supra note 4, at 21670.
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    Under the proposal, Category 3 Fees would apply to data recipients'
Non-Display Use of real-time market data for the purpose of internally
matching buy and sell orders within an organization, including matching
customer orders on a data recipient's own behalf and/or on behalf of
its clients. This category would apply to Non-Display Use in trading
platform(s), such as, but not restricted to, alternative trading
systems (``ATSs''), broker crossing networks, broker crossing systems
not filed as ATSs, dark pools, multilateral trading facilities,
exchanges and systematic internalization systems. Currently, Category 3
Fees apply where a data recipient's non-display use of market data is,
in whole or in part, for the purpose of providing reference prices in
the operation of one or more trading platforms. The Exchange believes
its proposed revision to its description of the data recipients to whom
Category 3 Fees apply is more precise because it focuses on the
functions of internally matching orders.
    In addition, the Exchange is proposing to change the application of
Category 3 Fees to data recipients that also use data for purposes that
give rise to Category 1 and/or Category 2 Fees. Currently, a data
recipient is not liable for Category 3 Fees for those market data
products for which it is also paying Category 1 and/or Category 2
Fees.\8\ Under the proposal, a data recipient's Non-Display Use of
real-time market data for Category 3 purposes would require such data
recipient to pay Category 3 Fees in addition to any Category 1 Fees or
Category 2 Fees it is required to pay for Non-Display Use of market
data.
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    \8\ See 2013 Release, supra note 4, at 21671.
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    There will continue to be no monthly or other reporting
requirements for data recipients' Non-Display Use. However, the
Exchange continues to reserve the right to audit data recipients' Non-
Display Use of Exchange market data products in accordance with the
Exchange's vendor and subscriber agreements.
    Data recipients that receive real-time Exchange market data for
Non-Display Use would be required to complete and submit a Non-Display
Use Declaration before September 1, 2014. The Non-Display Use
Declaration would replace the current declaration on the NYSE Euronext
Non-Display Usage Declaration.\9\ A firm subject to Category 3 Fees
would be required to identify each platform that uses data on a Non-
Display Use basis, such as ATSs and broker crossing systems not
registered as ATSs, as part of the Non-Display Use Declaration.
Beginning in 2016, data recipients would be required to submit, by
January 31 of each year, a Non-Display Use Declaration. In addition, if
a data recipient's use of real-time Exchange market data changes at any
time after the data recipient submits a Non-Display Use Declaration,
the data recipient would be required to update it at the time of the
change to reflect the change of use.
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    \9\ As described in more detail in the Statutory Basis section,
in order to modulate the overall fee increase that could apply, if a
firm subject to Category 3 Fees has more than three platforms, it
would only be required to declare three platforms. If a data
recipient only subscribes to products for which there are no non-
display usage fees, e.g., NYSE Realtime Reference Prices, then no
declaration is required.
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Proposed Changes to Fees for Managed Non-Display Services
    The Exchange also proposes to change the existing fees for managed
non-display services and establish a new managed non-display service
fee for NYSE Arca BBO. Managed non-display services fees would apply,
as they do currently, where data recipients' non-display applications
are hosted by an approved third party.\10\ To be an approved third
party, the third party must manage and control the access to real-time
Exchange market data for the data recipients' non-display applications
and not allow for further internal distribution or external
redistribution of the information.
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    \10\ See 2013 Release, supra note 4, at 21671.
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    The managed non-display services fee would only apply if a data
recipient is receiving real-time Exchange market data for Non-Display
Use from a third party Redistributor \11\ that is approved by the
Exchange. As for the current managed non-display services fees, this
Redistributor must manage and control the access to NYSE Arca
Integrated Feed, NYSE ArcaBook, NYSE Arca Trades, and NYSE Arca BBO for
these applications and may not allow their further internal
distribution or external redistribution. The Redistributor of the
managed non-display services and the data recipient must be approved
under the Exchange's Global Data Products Unit-of-Count Policy.\12\ If
a data recipient receives NYSE Arca Integrated Feed, NYSE ArcaBook,
NYSE Arca Trades, and NYSE Arca BBO from a Redistributor that is not
approved by the Exchange, then the non-display fees would apply, and
data recipients would

not be liable for managed non-display fees for those market data
products for which they pay non-display fees.
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    \11\ See id.
    \12\ The Unit-of-Count Policy is described in the 2013 Release,
supra note 4, at note 12 and accompanying text.
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    A data recipient of real-time Exchange market data through an
approved Redistributor would continue to have no reporting
requirements. However, a Redistributor would be required to report to
the Exchange on a monthly basis the data recipients that are receiving
real-time Exchange market data through the Redistributor's managed non-
display service and the real-time Exchange market data that such data
recipients are receiving through such service. This monthly reporting
requirement would be new, though the Exchange currently has the right
to audit data recipients' non-display use of Exchange market data
products in accordance with the Exchange's vendor and subscriber
agreements.
Comparison of Current Fees to Proposed Fees
    The chart below compares the proposed changes to current monthly
fees:

------------------------------------------------------------------------
           Data feed               Current fee          Proposed fee
------------------------------------------------------------------------
NYSE Arca Integrated Feed Non-             $5,000  $7,000.
 Display Category 1.
NYSE Arca Integrated Feed Non-              5,000  7,000.
 Display Category 2.
NYSE Arca Integrated Feed Non-              5,000  7,000.
 Display Category 3.
NYSE Arca Integrated Feed                   1,750  2,500.
 Managed Non-Display.
NYSE ArcaBook Non-Display                   4,000  5,000.
 Category 1.
NYSE ArcaBook Non-Display                   4,000  5,000.
 Category 2.
NYSE ArcaBook Non-Display                   4,000  5,000.
 Category 3.
NYSE ArcaBook Managed Non-                  1,500  1,800.
 Display.
NYSE Arca BBO Non-Display                   1,000  $1,000, capped at
 Category 3.                                        $3,000.
NYSE Arca BBO Managed Non-                    n/a  200.
 Display.
NYSE Arca Trades Non-Display                1,000  2,000.
 Category 1.
NYSE Arca Trades Non-Display                1,000  2,000.
 Category 2.
NYSE Arca Trades Non-Display                1,000  2,000.
 Category 3.
NYSE Arca Trades Managed Non-                 400  800.
 Display.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\13\ in general, and
Sections 6(b)(4) and 6(b)(5) of the Act,\14\ in particular, in that it
provides an equitable allocation of reasonable fees among users and
recipients of the data and is not designed to permit unfair
discrimination among customers, issuers, and brokers.
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    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(4), (5).
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    The Exchange believes that charging for non-trading uses is
reasonable because data recipients can derive substantial value from
such uses, for example, by automating tasks so that they can be
performed more quickly and accurately and less expensively than if they
were performed manually. The Exchange also notes that The NASDAQ Stock
Market (``NASDAQ'') and NASDAQ OMX PHLX (``Phlx'') do not make any
distinction in their non-display use fees between trading or non-
trading uses, and as such, the proposed change will harmonize the
Exchange's approach with those exchanges. Finally, the Exchange notes
that eliminating the trading versus non-trading distinction would
substantially simplify fee calculations and ease administrative burdens
for the Exchange.
    After further experience, the Exchange also believes that it is
more equitable and not unfairly discriminatory to eliminate the
distinction for non-trading versus trading uses in light of the
significant value of both types of uses. The Exchange notes that
because non-display fees are flat fees, the expansion to cover non-
trading uses could only result in a fee increase for a data recipient
that is using the data solely for non-trading purposes and is only
subject to per-device fees; at this time, the Exchange has not
identified such a data recipient. Based on data available to the
Exchange, all data recipients use the data for at least one trading
purpose, and therefore the changes to the fees that they will pay under
the proposal would not be due to the elimination of the distinction
between trading and non-trading uses. The Exchange further notes that
based on the Non-Display Use Declarations submitted to date, some users
have declared no Non-Display Use, and as such the proposed changes
would have no impact on them.
    The Exchange believes that it is reasonable to require annual
submissions of the Non-Display Use Declaration so that the Exchange
will have current and accurate information about the use of its market
data products and can correctly assess fees for the uses of those
products. The annual submission requirement is equitable and not
unfairly discriminatory because it will apply to all users.
    The Exchange believes that requiring Redistributors to provide
monthly reports of data recipients that are receiving the managed non-
display service is reasonable because as a matter of practice, the
Exchange already has been requiring such reporting pursuant to its
right under the vendor and subscriber agreements to request such
information, and there is no indication that this has been burdensome
for Redistributors. The reporting requirement is equitable and not
unfairly discriminatory because it will apply to all Redistributors and
help to ensure that ultimate data recipients are receiving data in
accordance with the Exchange's rules.
    The Exchange believes that the proposed fee increases for each of
Categories 1, 2, and 3 for NYSE Arca Integrated Feed, NYSE ArcaBook and
NYSE Arca Trades and the Category 3 cap for NYSE Arca BBO are
reasonable. In establishing the non-display fees in April 2013, the
Exchange set its fees substantially below comparable fees charged by
certain of its competitors.\15\ After gaining further experience with
its new display/non-display fee structure, the Exchange believes that
the proposed fees better reflect the significant value of the non-
display data to data recipients, which purchase such data on an
entirely voluntary basis. Non-display data can be used by data
recipients for a wide variety of profit-generating purposes, including
proprietary and agency trading and smart order routing, as well as by
data recipients that operate order matching and execution platforms
that compete directly with the Exchange for order flow. The data also
can be used for

a variety of non-trading purposes that indirectly support trading, such
as risk management and compliance. While some of these non-trading uses
do not directly generate revenues, they can nonetheless substantially
reduce the recipient's costs by automating such functions so that they
can be carried out in a more efficient and accurate manner and reduce
errors and labor costs, thereby benefiting end users. The Exchange
believes that the proposed fees directly and appropriately reflect the
significant value of using non-display data in a wide range of
computer-automated functions relating to both trading and non-trading
activities and that the number and range of these functions continue to
grow through innovation and technology developments.\16\
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    \15\ See 2013 Release, supra note 4, at 21672.
    \16\ See also Exchange Act Release No. 69157, March 18, 2013, 78
FR 17946, 17949 (March 25, 2013) (SR-CTA/CQ-2013-01) (``[D]ata feeds
have become more valuable, as recipients now use them to perform a
far larger array of non-display functions. Some firms even base
their business models on the incorporation of data feeds into black
boxes and application programming interfaces that apply trading
algorithms to the data, but that do not require widespread data
access by the firm's employees. As a result, these firms pay little
for data usage beyond access fees, yet their data access and usage
is critical to their businesses.'').
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    The fee increases are also reasonable in that they support the
Exchange's efforts to regularly upgrade systems to support more modern
data distribution formats and protocols as technology evolves. For
example, the Exchange has begun to make its proprietary data products
available over both its existing distribution channel as well as the
XDP protocol.
    Charging a separate fee for Category 3 data recipients that already
pay a fee under Category 1 or 2 is reasonable because it eliminates
what is effectively a discount for such data recipients under the
current Fee Schedule and results in a more equitable allocation of fees
to users that derive a benefit from a Category 3 use, and as such is
not unfairly discriminatory. The current fee can be viewed as having an
effective non-display fee cap of $10,000 for NYSE Arca Integrated Feed,
$8,000 for NYSE ArcaBook, $2,000 for each of NYSE Arca Trades and NYSE
Arca BBO. The proposed fee would have an effective non-display fee cap
of $35,000 for NYSE Arca Integrated Feed, $25,000 for NYSE ArcaBook,
$10,000 for NYSE Arca Trades, and $5,000 for NYSE Arca BBO. The
Exchange believes that the proposed fees (and their associated caps)
more closely correspond to the value that Category 3 recipients derive
from the various uses of the data, some of which are operating various
types of alternative trading venues that directly compete for order
flow with the Exchange. Limiting the fees in Category 3 to no more than
three trading platforms is reasonable because it modulates the size of
the fee increase for certain recipients as compared to what they pay
under the current fee structure, in much the same manner as the current
fee does by limiting the non-display fees to a maximum of two
categories. The Exchange does not believe that it will be burdensome
for Category 3 recipients to determine, or the Exchange to audit,
whether a recipient has one, two, three or more separate platforms.
    The proposed monthly fee of $200 for NYSE Arca BBO managed non-
display data is reasonable because they are less than other managed
non-display fees charged by the Exchange for other managed non-display
products as well as by other exchanges for comparable products.\17\ The
fees are also equitable and not unfairly discriminatory because they
will apply to all data recipients that choose to subscribe to the
feeds.
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    \17\ NASDAQ offers a Managed Data Solution that assesses a
monthly Managed Data Solution Administration fee of $1,500 and
monthly Subscriber fees of $60 for non-professionals to $300 for
professionals. See NASDAQ Rule 7026(b). Phlx charges a monthly
Managed Data Solution Administration fee of $2,000 and a monthly
Subscriber fee of $500. The monthly License fee is in addition to
the monthly Distributor fee of $3,500 (for external usage), and the
$500 monthly Subscriber fee is assessed for each Subscriber of a
Managed Data Solution. See Securities Exchange Act Release No. 70748
(October 23, 2013), 78 FR 64569 (October 29, 2013) (SR-Phlx-2013-
105).
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    The proposed increases in the managed non-display fee for NYSE Arca
Integrated Feed, NYSE ArcaBook, and NYSE Arca Trades are reasonable
because they remain less than the comparable fee for other exchanges'
similar products.\18\ The fees also are equitable and not unfairly
discriminatory because they will apply to all data recipients that
choose to subscribe to the feeds.
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    \18\ Id.
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    The fees are also competitive with offerings by other exchanges,
which structure and set their fees in a variety of ways. For example,
NASDAQ professional subscribers pay monthly fees for non-display usage
based upon direct access to NASDAQ Level 2, NASDAQ TotalView, or NASDAQ
OpenView, which range from $300 per month for customers with one to 10
subscribers to $75,000 for customers with 250 or more subscribers.\19\
NASDAQ also offers an enterprise license for its last sale data at
$50,000 per month.\20\ In addition, Phlx offers an alternative $10,000
per month ``Non-Display Enterprise License'' fee that permits
distribution to an unlimited number of internal non-display subscribers
without incurring additional fees for each internal subscriber.\21\ The
Non-Display Enterprise License covers non-display subscriber fees for
all Phlx proprietary direct data feed products and is in addition to
any other associated distributor fees for Phlx proprietary direct data
feed products. NASDAQ OMX BX, Inc. (``BX'') also offers an alternative
non-display usage fee of $16,000 per month for its BX TotalView data
feed.\22\ NASDAQ and Phlx also both offer managed non-display data
solutions at higher overall fees than the Exchange proposes to
charge.\23\
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    \19\ See NASDAQ Rule 7023(b)(4).
    \20\ See NASDAQ Rule 7039(b).
    \21\ Alternatively, Phlx charges each professional subscriber
$40 per month. See Section IX of the Phlx Pricing Schedule.
    \22\ See NASDAQ OMX BX Rule 7023(a)(2). Alternatively, BX
charges each professional subscriber $40 per month.
    \23\ See supra note 17.
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    The Exchange also notes that all of the products described herein
are entirely optional. The Exchange is not required to make these
proprietary data products available or to offer any specific pricing
alternatives to any customers, nor is any firm required to purchase any
of the products. Firms that do purchase non-display products do so for
the primary goals of using them to increase revenues, reduce expenses,
and in some instances compete directly with the Exchange for order
flow; those firms are able to determine for themselves whether any
specific product such as these are attractively priced or not.
    Firms that do not wish to purchase the data at the new prices have
a wide variety of alternative market data products from which to
choose,\24\ or if the non-display data products do not provide
sufficient value to firms as offered based on the uses those firms have
or planned to make of them, such firms may simply choose to conduct
their business operations in ways that do not require those data
products. The Exchange notes that broker-dealers are not required to
purchase proprietary market data to comply with their best execution
obligations.\25\ Similarly, there is no requirement in Regulation NMS
or any other rule that proprietary data be utilized for order routing
decisions, and

some broker-dealers and ATSs have chosen not to do so.\26\
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    \24\ See supra notes 17-22. Because NYSE Arca BBO and NYSE Arca
Trades are subsets of the consolidated core data offered by the CTA
and CQS, customers may choose to purchase those consolidated data
products or free delayed data instead.
    \25\ See In the Matter of the Application of Securities Industry
And Financial Markets Association For Review of Actions Taken by
Self-Regulatory Organizations, Release Nos. 34-72182; AP-3-15350;
AP-3-15351 (May 16, 2014).
    \26\ For example, Goldman Sachs Execution and Clearing, L.P. has
disclosed that it does not use proprietary market data in connection
with Sigma X, its ATS. See response to Question E3, available at
http://www.goldmansachs.com/media-relations/in-the-news/current/pdf-media/gsec-order-handling-practices-ats-specific.pdf. By way of
comparison, IEX has disclosed that it uses proprietary market data
feeds from all registered stock exchanges and LavaFlow ECN. See
http://www.iextrading.com/about/.
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    The decision of the United States Court of Appeals for the District
of Columbia Circuit in NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir.
2010), upheld reliance by the Securities and Exchange Commission
(``Commission'') upon the existence of competitive market mechanisms to
set reasonable and equitably allocated fees for proprietary 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.'

    Id. at 535 (quoting H.R. Rep. No. 94-229 at 92 (1975), as reprinted
in 1975 U.S.C.C.A.N. 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.''' \27\
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    \27\ NetCoalition, 615 F.3d at 535.
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    As explained below in the Exchange's Statement on Burden on
Competition, the Exchange believes that there is substantial evidence
of competition in the marketplace for proprietary market data and that
the Commission can rely upon such evidence in concluding that the fees
established in this filing are the product of competition and therefore
satisfy the relevant statutory standards. In addition, the existence of
alternatives to these data products, such as consolidated data and
proprietary data from other sources, as described below, further
ensures that the Exchange cannot set unreasonable fees, or fees that
are unreasonably discriminatory, when vendors and subscribers can
select such alternatives.
    As the NetCoalition decision noted, the Commission is not required
to undertake a cost-of-service or ratemaking approach. The Exchange
believes that, even if it were possible as a matter of economic theory,
cost-based pricing for non-core market data would be so complicated
that it could not be done practically or offer any significant
benefits.\28\
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    \28\ The Exchange believes that cost-based pricing would be
impractical because it would create enormous administrative burdens
for all parties, including the Commission, to cost-regulate a large
number of participants and standardize and analyze extraordinary
amounts of information, accounts, and reports. In addition, and as
described below, it is impossible to regulate market data prices in
isolation from prices charged by markets for other services that are
joint products. Cost-based rate regulation would also lead to
litigation and may distort incentives, including those to minimize
costs and to innovate, leading to further waste. Under cost-based
pricing, the Commission would be burdened with determining a fair
rate of return, and the industry could experience frequent rate
increases based on escalating expense levels. Even in industries
historically subject to utility regulation, cost-based ratemaking
has been discredited. As such, the Exchange believes that cost-based
ratemaking would be inappropriate for proprietary market data and
inconsistent with Congress's direction that the Commission use its
authority to foster the development of the national market system,
and that market forces will continue to provide appropriate pricing
discipline. See Appendix C to NYSE's comments to the Commission's
2000 Concept Release on the Regulation of Market Information Fees
and Revenues, which can be found on the Commission's Web site at
http://www.sec.gov/rules/concept/s72899/buck1.htm.
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    For these reasons, the Exchange believes that the proposed fees are
reasonable, equitable, and not unfairly discriminatory.

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 that is not necessary or appropriate
in furtherance of the purposes of the Act. An exchange's ability to
price its proprietary market data feed products is constrained by
actual competition for the sale of proprietary market data products,
the joint product nature of exchange platforms, and the existence of
alternatives to the Exchange's proprietary data.
The Existence of Actual Competition.
    The market for proprietary data products is currently competitive
and inherently contestable because there is fierce competition for the
inputs necessary for the creation of proprietary data and strict
pricing discipline for the proprietary products themselves. Numerous
exchanges compete with one another for listings and order flow and
sales of market data itself, providing ample opportunities for
entrepreneurs who wish to compete in any or all of those areas,
including producing and distributing their own market data. Proprietary
data products are produced and distributed by each individual exchange,
as well as other entities, in a vigorously competitive market. Indeed,
the U.S. Department of Justice (``DOJ'') (the primary antitrust
regulator) has expressly acknowledged the aggressive actual competition
among exchanges, including for the sale of proprietary market data. In
2011, the DOJ stated that exchanges ``compete head to head to offer
real-time equity data products. These data products include the best
bid and offer of every exchange and information on each equity trade,
including the last sale.'' \29\
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    \29\ Press Release, U.S. Department of Justice, Assistant
Attorney General Christine Varney Holds Conference Call Regarding
NASDAQ OMX Group Inc. and IntercontinentalExchange Inc. Abandoning
Their Bid for NYSE Euronext (May 16, 2011), available at http://www.justice.gov/iso/opa/atr/speeches/2011/at-speech-110516.html.
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    Moreover, competitive markets for listings, order flow, executions,
and transaction reports provide pricing discipline for the inputs of
proprietary data products and therefore constrain markets from
overpricing proprietary market data. Broker-dealers send their order
flow and transaction reports to multiple venues, rather than providing
them all to a single venue, which in turn reinforces this competitive
constraint. As a 2010 Commission Concept Release noted, the ``current
market structure can be described as dispersed and complex'' with
``trading volume . . . dispersed among many highly automated trading
centers that compete for order flow in the same stocks'' and ``trading
centers offer[ing] a wide range of services that are designed to
attract different types of market participants with varying trading
needs.'' \30\ More recently, SEC Chair Mary Jo White has noted that
competition for order flow in exchange-listed equities is ``intense''
and divided among many trading venues, including exchanges, more than
40 alternative trading systems, and more than 250 broker-dealers.\31\
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    \30\ Concept Release on Equity Market Structure, Securities
Exchange Act Release No. 61358 (Jan. 14, 2010), 75 FR 3594 (Jan. 21,
2010) (File No. S7-02-10). This Concept Release included data from
the third quarter of 2009 showing that no market center traded more
than 20% of the volume of listed stocks, further evidencing the
dispersal of and competition for trading activity. Id. at 3598. Data
available on ArcaVision show that from June 30, 2013 to June 30,
2014, no exchange traded more than 12% of the volume of listed
stocks by either trade or dollar volume, further evidencing the
continued dispersal of and fierce competition for trading activity.
See https://www.arcavision.com/Arcavision/arcalogin.jsp.
    \31\ Mary Jo White, Enhancing Our Equity Market Structure,
Sandler O'Neill & Partners, L.P. Global Exchange and Brokerage
Conference (June 5, 2014) (available on the Commission Web site),
citing Tuttle, Laura, 2014, ``OTC Trading: Description of Non-ATS
OTC Trading in National Market System Stocks,'' at 7-8.
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    If an exchange succeeds in its competition for quotations, order
flow, and trade executions, then it earns

trading revenues and increases the value of its proprietary market data
products because they will contain greater quote and trade information.
Conversely, if an exchange is less successful in attracting quotes,
order flow, and trade executions, then its market data products may be
less desirable to customers using them in support of order routing and
trading decisions in light of the diminished content; data products
offered by competing venues may become correspondingly more attractive.
Thus, competition for quotations, order flow, and trade executions puts
significant pressure on an exchange to maintain both execution and data
fees at reasonable levels.
    In addition, in the case of products that are distributed through
market data vendors, such as Bloomberg and Thompson Reuters, the
vendors themselves provide additional price discipline for proprietary
data products because they control the primary means of access to
certain end users. These vendors impose price discipline based upon
their business models. For example, vendors that assess a surcharge on
data they sell are able to refuse to offer proprietary products that
their end users do not or will not purchase in sufficient numbers.
Vendors will not elect to make available the Exchange products
described herein unless their customers request them, and customers
will not elect to pay the proposed increased fees for non-display uses
unless the non-display uses of these data products can provide value by
sufficiently increasing revenues or reducing costs in the customer's
business in a manner that will offset the fees. All of these factors
operate as constraints on pricing proprietary data products.
Joint Product Nature of Exchange Platform
    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, proprietary market data and trade
executions 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 platforms where the order can be
posted, including the execution fees, data availability and quality,
and price and distribution of their data products. Without a platform
to post quotations, receive orders, and execute trades, exchange data
products would not exist.
    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 platform for posting quotes,
accepting orders, and executing transactions 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, an exchange's broker-dealer customers generally view the
costs of transaction executions and market data as a unified cost of
doing business with the exchange. A broker-dealer will only choose to
direct orders to an exchange if the revenue from the transaction
exceeds its cost, including the cost of any market data that the
broker-dealer chooses to buy in support of its order routing and
trading decisions. If the costs of the transaction are not offset by
its value, then the broker-dealer may choose instead not to purchase
the product and trade away from that exchange. There is substantial
evidence of the strong correlation between order flow and market data
purchases. For example, in May 2014 more than 80% of the transaction
volume on each of NYSE, NYSE Arca, and NYSE MKT was executed by market
participants that purchased one or more proprietary market data
products. A super-competitive increase in the fees for either
executions or market data would create a risk of reducing an exchange's
revenues from both products.
    Other market participants have noted that proprietary market data
and trade executions are joint products of a joint platform and have
common costs.\32\ The Exchange agrees with and adopts those discussions
and the arguments therein. The Exchange also notes that the economics
literature confirms that there is no way to allocate common costs
between joint products that would shed any light on competitive or
efficient pricing.\33\
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    \32\ See Securities Exchange Act Release No. 72153 (May 12,
2014), 79 FR 28575, 28578 n.15 (May 16, 2014) (SR-NASDAQ-2014-045)
(``[A]ll 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.'').
See also Securities Exchange Act Release No. 62907 (September 14,
2010), 75 FR 57314, 57317 (September 20, 2010) (SR-NASDAQ-2010-110),
and Securities Exchange Act Release No. 62908 (September 14, 2010),
75 FR 57321, 57324 (September 20, 2010) (SR-NASDAQ-2010-111).
    \33\ See generally Mark Hirschey, Fundamentals of Managerial
Economics, at 600 (2009) (``It is important to note, however, that
although it is possible to determine the separate marginal costs of
goods produced in variable proportions, it is impossible to
determine their individual average costs. This is because common
costs are expenses necessary for manufacture of a joint product.
Common costs of production--raw material and equipment costs,
management expenses, and other overhead--cannot be allocated to each
individual by-product on any economically sound basis. . . . Any
allocation of common costs is wrong and arbitrary.''). This is not
new economic theory. See, e.g., F. W. Taussig, ``A Contribution to
the Theory of Railway Rates,'' Quarterly Journal of Economics V(4)
438, 465 (July 1891) (``Yet, surely, the division is purely
arbitrary. These items of cost, in fact, are jointly incurred for
both sorts of traffic; and I cannot share the hope entertained by
the statistician of the Commission, Professor Henry C. Adams, that
we shall ever reach a mode of apportionment that will lead to
trustworthy results.'').
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    Analyzing the cost of market data product production and
distribution in isolation from the cost of all of the inputs supporting
the creation of market data and market data products will inevitably
underestimate the cost of the data and data products because it is
impossible to obtain the data inputs to create market data products
without a fast, technologically robust, and well-regulated execution
system, and system and regulatory costs affect the price of both
obtaining the market data itself and creating and distributing market
data products. It would be equally misleading, however, to attribute
all of an exchange's costs to the market data portion of an exchange's
joint products. Rather, all of an 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.
    As noted above, the level of competition and contestability in the
market is evident in the numerous alternative venues that compete for
order flow, including 12 equities self-regulatory organization
(``SRO'') markets, as well as various forms of ATSs, including dark
pools and electronic communication networks (``ECNs''), and
internalizing broker-dealers. SRO markets compete to attract order flow
and produce transaction reports via trade executions, and two FINRA-
regulated Trade Reporting Facilities compete to attract transaction
reports from the non-SRO venues.\34\
---------------------------------------------------------------------------

    \34\ FINRA's Alternative Display Facility also receives over-
the-counter trade reports that it sends to CTA.
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    Competition among trading platforms can be expected to constrain
the aggregate return that each platform earns from the sale of its
joint products, but different trading 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 data products (or provide market data products free of
charge), and charge relatively high prices for accessing posted
liquidity. Other platforms may choose a strategy of paying lower
rebates (or no rebates) to attract orders, setting relatively high
prices for market data products, and setting relatively low prices for
accessing posted liquidity. For example, BATS and Direct Edge, which
previously operated as ATSs and obtained exchange status in 2008 and
2010, respectively, have provided certain market data at no charge on
their Web sites in order to attract more order flow, and use revenue
rebates from resulting additional executions to maintain low execution
charges for their users.\35\ Similarly, LavaFlow ECN provides market
data to its subscribers at no charge.\36\ 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.\37\
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    \35\ This is simply a securities market-specific example of the
well-established principle that in certain circumstances more sales
at lower margins can be more profitable than fewer sales at higher
margins; this example is additional evidence that market data is an
inherent part of a market's joint platform.
    \36\ See ``LavaFlow--ADF Migration,'' available at https://
www.lavatrading.com/news/pdf/
LavaFlowADFMigration.pdf.
    \37\ The Exchange notes that a small number of Category 3 non-
display data recipients could be using the market data strictly for
competitive purposes (e.g., other exchanges and ATSs) or for
business purposes unrelated to trading or investment (e.g., Internet
portals that wish to attract ``eyeballs'' to their pages primarily
generate advertising revenue for themselves). The Exchange does not
believe that the proposed fees will impose any unnecessary burden on
these competitors or other businesses.
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Existence of Alternatives
    The large number of SROs, ATSs, and internalizing broker-dealers
that currently produce proprietary data or are currently capable of
producing it provides further pricing discipline for proprietary data
products. Each SRO, ATS, and broker-dealer is currently permitted to
produce and sell proprietary data products, and many currently do or
have announced plans to do so, including but not limited to the
Exchange, NYSE, NYSE MKT, NASDAQ OMX, BATS, and Direct Edge.
    The fact that proprietary data from ATSs, internalizing broker-
dealers, and vendors can bypass SROs is significant in two respects.
First, non-SROs can compete directly with SROs for the production and
sale of proprietary data products. By way of example, BATS and NYSE
Arca both published proprietary data on the Internet before registering
as exchanges. Second, because a single order or transaction report can
appear in an SRO proprietary product, a non-SRO proprietary product, or
both, the amount of data available via proprietary products is greater
in size than the actual number of orders and transaction reports that
exist in the marketplace. For example, with respect to NYSE Arca Trades
and NYSE Arca BBO, the data appears in both the real-time core data
offered by the SIPs for a fee and free SIP data that is offered on a
15-minute time delay. With respect to NYSE Arca Integrated Feed, NYSE
Arca Trades, NYSE Arca BBO, and NYSE ArcaBook, close substitute
products are offered by several competitors.\38\ Because market data
users can find suitable substitutes for most proprietary market data
products, a market that overprices its market data products stands a
high risk that users may substitute another source of market data
information for its own.
---------------------------------------------------------------------------

    \38\ See supra notes 17-22.
---------------------------------------------------------------------------

    Those competitive pressures imposed by available alternatives are
evident in the Exchange's proposed pricing. As noted above, the
proposed non-display fees are generally lower than the maximum non-
display fees charged by other exchanges such as NASDAQ, Phlx, and BX
for comparable products.\39\
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    \39\ Id.
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    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 and inexpensive. 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, TrackECN, BATS Trading and Direct Edge. As noted
above, BATS launched as an ATS in 2006 and became an exchange in 2008,
while Direct Edge began operations in 2007 and obtained exchange status
in 2010. As noted above, LavaFlow ECN provides market data to its
subscribers at no charge.\40\
---------------------------------------------------------------------------

    \40\ See supra note 36.
---------------------------------------------------------------------------

    In establishing the proposed fees, the Exchange considered the
competitiveness of the market for proprietary data and all of the
implications of that competition. The Exchange believes that it has
considered all relevant factors and has not considered irrelevant
factors in order to establish fair, reasonable, and not unreasonably
discriminatory fees and an equitable allocation of fees among all
users. The existence of numerous alternatives to the Exchange's
products, including proprietary data from other sources, ensures that
the Exchange cannot set unreasonable fees, or fees that are
unreasonably discriminatory, when vendors and subscribers can elect
these alternatives or choose not to purchase a specific proprietary
data product if the attendant fees are not justified by the returns
that any particular vendor or data recipient would achieve through the
purchase.

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

    No written comments were solicited or received with respect to the
proposed rule change.

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

    The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \41\ of the Act and subparagraph (f)(2) of Rule
19b-4 \42\ thereunder, because it establishes a due, fee, or other
charge imposed by the Exchange.
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    \41\ 15 U.S.C. 78s(b)(3)(A).
    \42\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such 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 under
Section 19(b)(2)(B) \43\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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    \43\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSEArca-2014-93 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-NYSEArca-2014-93. 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, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal office 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-NYSEArca-2014-93 and should
be submitted on or before October 2, 2014.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\44\
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    \44\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-21650 Filed 9-10-14; 8:45 am]
BILLING CODE 8011-01-P