[Federal Register Volume 81, Number 32 (Thursday, February 18, 2016)]
[Notices]
[Pages 8313-8316]
[FR Doc No: 2016-03271]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77119; File No. SR-NYSE-2016-01]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change to
the Co-Location Services Offered by the Exchange To Include a Means for
Co-Located Users To Receive the NASDAQ TotalView Ultra Market Data Feed
Through a Wireless Connection and Reflect Changes to the Exchange Price
List

February 11, 2016.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on February 2, 2016, New York Stock Exchange LLC (``NYSE''
or the ``Exchange'') filed with the Securities and Exchange Commission
(the ``Commission'') 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.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    The Exchange proposes to change the co-location services offered by
the Exchange to include a means for co-located Users to receive the
NASDAQ TotalView Ultra (FGPA) market data feed through a wireless
connection. In addition, the proposed rule change reflects changes to
the Exchange's Price List related to the proposed service. 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
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to change the co-location \4\ services
offered by the Exchange to include a means for Users \5\ to have access
to the NASDAQ TotalView Ultra (FGPA) market data feed through a
wireless connection. In addition, the proposed rule change reflects
changes to the Exchange's Price List related to the proposed service.
---------------------------------------------------------------------------

    \4\ The Exchange initially filed rule changes relating to its
co-location services with the Securities and Exchange Commission
(``Commission'') in 2010. See Securities Exchange Act Release No.
62960 (September 21, 2010), 75 FR 59310 (September 27, 2010) (SR-
NYSE-2010-56). The Exchange operates a data center in Mahwah, New
Jersey (the ``data center'') from which it provides co-location
services to Users.
    \5\ For purposes of the Exchange's co-location services, a
``User'' means any market participant that requests to receive co-
location services directly from the Exchange. See Securities
Exchange Act Release No. 76008 (September 29, 2015), 80 FR 60190
(October 5, 2015) (SR-NYSE-2015-40). As specified in the Price List,
a User that incurs co-location fees for a particular co-location
service pursuant thereto would not be subject to co-location fees
for the same co-location service charged by the Exchange's
affiliates NYSE MKT LLC and NYSE Arca, Inc. See Securities Exchange
Act Release No. 70206 (August 15, 2013), 78 FR 51765 (August 21,
2013) (SR-NYSE-2013-59).
---------------------------------------------------------------------------

    The Commission has approved the Exchange's proposed rule change to
provide a wireless connection to five market data feeds from third
party markets.\6\ The Exchange now proposes to add to its Price List a
sixth market data feed, NASDAQ TotalView Ultra (FGPA) (``TotalView
Ultra'' and, together with the previously filed five market data feeds,
the ``Third Party Data'').
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 76748 (December 23,
2015), 80 FR 81609 (December 30, 2015) (SR-NYSE-2015-52) (``Wireless
Approval Release'').
---------------------------------------------------------------------------

    As with the previously approved connectivity to Third Party Data
through the wireless connection, the Exchange would utilize a network
vendor to provide a wireless connection to TotalView Ultra through
wireless connections from an Exchange access center to its data center
in Mahwah, New Jersey, through a series of towers equipped with
wireless equipment. To receive TotalView Ultra, the User would enter
into a contract with NASDAQ, which would charge the User the applicable
market data fees for TotalView Ultra. The Exchange would charge the
User fees for the wireless connection to TotalView Ultra.\7\
---------------------------------------------------------------------------

    \7\ A User would only receive TotalView Ultra if it had entered
into a contract with NASDAQ.
---------------------------------------------------------------------------

    For each wireless connection to TotalView Ultra, a User would be
charged a $5,000 non-recurring initial charge and a monthly recurring
charge (``MRC'') of $11,000. The Exchange proposes to revise its Price
List to reflect fees related to the connection to TotalView Ultra.
    As with the previously approved wireless connections to Third Party
Data, if a User purchased two wireless connections, it would pay two
non-recurring initial charges, and the wireless connection would
include the use of one port for connectivity to Third Party Data.\8\
Also as with the previously approved wireless connections to Third
Party Data, the Exchange proposes to

waive the first month's MRC, to allow Users to test the receipt of
TotalView Ultra for a month before incurring any MRCs.
---------------------------------------------------------------------------

    \8\ A User only requires one port to connect to the Third Party
Data, irrespective of how many of the wireless connections it
orders. It may, however, purchase additional ports. See Wireless
Approval Release, at 81610.
---------------------------------------------------------------------------

    The Exchange proposes to offer the wireless connection to provide
Users with an alternative means of connectivity to TotalView Ultra.
Currently, Users can receive TotalView Ultra from wireless networks
offered by third party vendors.\9\ Users may also receive connections
to TotalView Ultra through other methods, including, for example, from
another User, through a telecommunications provider, or over the
internet protocol (``IP'') network.\10\
---------------------------------------------------------------------------

    \9\ Currently, at least four third party vendors offer Users
wireless network connections using wireless equipment installed on
towers and buildings near the data center.
    \10\ The IP network is a local area network available in the
data center. See Securities Exchange Act Release No. 74222 (February
6, 2015), 80 FR 7888 (February 12, 2015) (SR-NYSE-2015-05) (notice
of filing and immediate effectiveness of proposed rule change to
include IP network connections).
---------------------------------------------------------------------------

    The wireless connection to the Third Party Data is expected to be
available in January 2016, and no later than March 1, 2016. The
Exchange will announce the date that the wireless connection to the
Third Party Data will be available through a customer notice.
    As is the case with all Exchange co-location arrangements, (i)
neither a User nor any of the User's customers would be permitted to
submit orders directly to the Exchange unless such User or customer is
a member organization, a Sponsored Participant or an agent thereof
(e.g., a service bureau providing order entry services); (ii) use of
the co-location services proposed herein would be completely voluntary
and available to all Users on a non-discriminatory basis; \11\ and
(iii) a User would only incur one charge for the particular co-location
service described herein, regardless of whether the User connects only
to the Exchange or to the Exchange and one or both of its
affiliates.\12\
---------------------------------------------------------------------------

    \11\ As is currently the case, Users that receive co-location
services from the Exchange will not receive any means of access to
the Exchange's trading and execution systems that is separate from,
or superior to, that of other Users. In this regard, all orders sent
to the Exchange enter the Exchange's trading and execution systems
through the same order gateway, regardless of whether the sender is
co-located in the data center or not. In addition, co-located Users
do not receive any market data or data service product that is not
available to all Users, although Users that receive co-location
services normally would expect reduced latencies in sending orders
to, and receiving market data from, the Exchange.
    \12\ See SR-NYSE-2013-59, supra note 5 at 51766. The Exchange's
affiliates have also submitted substantially the same proposed rule
change to propose the changes described herein. See SR-NYSEMKT-2016-
02 and SR-NYSEArca-2016-04.
---------------------------------------------------------------------------

    The proposed change is not otherwise intended to address any other
issues relating to co-location services and/or related fees, and the
Exchange is not aware of any problems that Users would have in
complying with the proposed change.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\13\ in general, and furthers the
objectives of Sections 6(b)(4) and 6(b)(5) of the Act,\14\ in
particular, because it is designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to foster cooperation and coordination with
persons engaged in regulating, clearing, settling, processing
information with respect to, and facilitating transactions in
securities, to remove impediments to, and perfect the mechanisms of, a
free and open market and a national market system and, in general, to
protect investors and the public interest and because it is not
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(4), (5).
---------------------------------------------------------------------------

    The Exchange believes that the proposed service is not designed to
permit unfair discrimination between customers, issuers, brokers, or
dealers because the wireless connection to TotalView Ultra would
provide Users with an alternative means of connectivity to TotalView
Ultra. Users that do not opt to utilize the Exchange's proposed
wireless connections would still be able to obtain TotalView Ultra
through other methods, including, for example, from wireless networks
offered by third party vendors, another User, through a
telecommunications provider, or over the IP network. Users that opt to
use wireless connections to TotalView Ultra would receive the TotalView
Ultra that is available to all Users, as all market participants that
contract with NASDAQ for TotalView Ultra may receive it.
    The Exchange believes that this removes impediments to, and
perfects the mechanisms of, a free and open market and a national
market system and, in general, protects investors and the public
interest because it would provide Users with choices with respect to
the form and optimal latency of the connectivity they use to receive
TotalView Ultra, allowing a User that opts to receive TotalView Ultra
to select the connectivity and number of ports that better suit its
needs, helping it tailor its data center operations to the requirements
of its business operations.
    The Exchange also believes that the proposed rule change is
consistent with Section 6(b)(4) of the Act,\15\ in particular, because
it provides for the equitable allocation of reasonable dues, fees, and
other charges among its members, issuers and other persons using its
facilities and does not unfairly discriminate between customers,
issuers, brokers or dealers.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    The Exchange believes that the proposed change is equitable and not
unfairly discriminatory because it will result in fees being charged
only to Users that voluntarily select to receive the corresponding
services and because those services will be available to all Users.
Furthermore, the Exchange believes that the services and fees proposed
herein are not unfairly discriminatory and are equitably allocated
because, in addition to the services being completely voluntary, they
are available to all Users on an equal basis (i.e., the same products
and services are available to all Users). All Users that voluntarily
select wireless connections to TotalView Ultra would be charged the
same amount for the same services and would have their first month MRC
for wireless connections waived.
    Overall, the Exchange believes that the proposed change is
reasonable because the Exchange proposes to offer the wireless
connection to TotalView Ultra described herein as a convenience to
Users, but in doing so would incur certain costs, including costs
related to the data center facility, hardware and equipment and costs
related to personnel required for initial installation and monitoring,
support and maintenance of such services. The costs associated with the
wireless connections are incrementally higher than fiber optics-based
solutions due to the expense of the wireless equipment, cost of
installation and testing and ongoing maintenance of the network. The
Exchange believes that it is reasonable that a User that has already
purchased wireless connections to other Third Party Data would be
charged a non-recurring charge when it purchases a wireless connection
to TotalView Ultra, because the Exchange would incur certain costs in
installing the wireless connection to TotalView Ultra irrespective of
whether the User had existing wireless connections to Third Party Data.
Such costs related to initial installation include, in particular,
costs related to personnel required for initial installation and
testing. The costs associated with installing wireless connections are
incrementally higher than those associated with installing fiber
optics-based solutions.

    The Exchange believes that the proposed pricing for the wireless
connection to TotalView Ultra is reasonable because it allows Users to
select the TotalView Ultra connectivity option that better suits their
needs. The fees also reflect the benefit received by Users in terms of
lower latency over the fiber optics option. The Exchange believes that
the proposed waiver of the first month's MRC is reasonable as it would
allow Users to test the receipt of the feed for a month before
incurring any monthly recurring fees and may act as an incentive to
Users to connect to TotalView Ultra.
    Moreover, the fees are equity [sic] allocated and not unfairly
discriminatory because the wireless connection to TotalView Ultra would
provide Users with an alternative means of connectivity to TotalView
Ultra. Users that do not opt to utilize the Exchange's proposed
wireless connections would still be able to obtain TotalView Ultra
through other methods, including, for example, from wireless networks
offered by third party vendors, another User, through a
telecommunications provider, or over the IP network. Users that opt to
use wireless connections to TotalView Ultra would receive the TotalView
Ultra that is available to all Users, as all market participants that
contract with NASDAQ for TotalView Ultra may receive it.
    For the reasons above, the proposed changes do not unfairly
discriminate between or among market participants that are otherwise
capable of satisfying any applicable co-location fees, requirements,
terms and conditions established from time to time by the Exchange.
    Finally, the Exchange believes that it is subject to significant
competitive forces, as described below in the Exchange's statement
regarding the burden on competition.
    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

    In accordance with Section 6(b)(8) of the Act,\16\ the Exchange
believes that the proposed rule change will not impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act because, in addition to the proposed services being
completely voluntary, they are available to all Users on an equal basis
(i.e. the same products and services are available to all Users).
---------------------------------------------------------------------------

    \16\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    The Exchange believes that allowing Users to receive TotalView
Ultra through a wireless connection will not impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act because such access will satisfy User demand for
additional options for connectivity to TotalView Ultra. Currently,
Users can receive TotalView Ultra from wireless networks offered by
third party vendors. Based on the information available to it, the
Exchange believes that its proposed wireless connection would provide
data at the same or similar speed and at the same or similar cost as
the other wireless networks. Accordingly, the proposed wireless
connection to TotalView Ultra would provide Users with an additional
wireless connectivity option, thereby enhancing competition.
    The Exchange notes that the proposed wireless connection to
TotalView Ultra would compete not just with other wireless connections
to TotalView Ultra, but also with fiber optic network connections to
TotalView Ultra, which may be more attractive to some Users as they are
more reliable and less susceptible to weather conditions. Users that do
not opt to utilize wireless connections would be able to obtain
TotalView Ultra through other methods, including, for example, from
another User, through a telecommunications provider, or over the IP
network. In this way, the proposed changes would enhance competition by
helping Users tailor their connectivity to TotalView Ultra to the needs
of their business operations by allowing them to select the form and
optimal latency of the connectivity they use to receive TotalView Ultra
that best suits their needs, helping them tailor their data center
operations to the requirements of their business operations.
    The proposed wireless connection to TotalView Ultra would traverse
wireless connections through a series of towers equipped with wireless
equipment, including a pole on the grounds of the data center. The
proposed wireless network would have exclusive rights to operate
wireless equipment on the data center pole. The Exchange will not sell
rights to third parties to operate wireless equipment on the pole, due
to space limitations, security concerns, and the interference that
would arise between equipment placed too closely together. In addition
to space issues, there are contractual restrictions on the use of the
roof that the Exchange has determined would not be met if it offered
space on the roof for third party wireless equipment. Moreover, access
to the pole or roof is not required for third parties to establish
wireless networks that can compete with the Exchange's proposed
service, as witnessed by the existing wireless networks currently
serving Users. Based on the information available to it, the Exchange
believes that its proposed wireless connection to TotalView Ultra would
provide data at the same or similar speed, and at the same or similar
cost, as its proposed wireless connection [sic], thereby enhancing
competition.\17\
---------------------------------------------------------------------------

    \17\ The Exchange notes that the distance of a wireless network
provider's wireless equipment from the User is only one factor in
determining overall latency. Other factors include the number of
repeaters in the route, the number of switches the data has to
travel through, and the millimeter wave and switch technology used.
---------------------------------------------------------------------------

    Finally, the Exchange notes that it operates in a highly
competitive market in which market participants can readily favor
competing venues if they deem fee levels at a particular venue to be
excessive. In such an environment, the Exchange must continually
review, and consider adjusting, its services and related fees and
credits to remain competitive with other exchanges. For the reasons
described above, the Exchange believes that the proposed rule change
reflects this competitive environment.

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 Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \18\ and Rule 19b-4(f)(6) thereunder.\19\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

    \18\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \19\ 17 CFR 240.19b-4(f)(6).

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

    A proposed rule change filed under Rule 19b-4(f)(6) \20\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b4(f)(6)(iii),\21\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest.
---------------------------------------------------------------------------

    \20\ 17 CFR 240.19b-4(f)(6).
    \21\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

    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) \22\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \22\ 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 No. SR-NYSE-2016-01 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 No. SR-NYSE-2016-01. 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 No. SR-NYSE-2016-01, and should be
submitted on or before March 10, 2016.
---------------------------------------------------------------------------

    \23\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-03271 Filed 2-17-16; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 130 (Friday, July 6, 2012)]
[Notices]
[Page 40107]
[FR Doc No: 2012-16654]

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

SECURITIES AND EXCHANGE COMMISSION

[File No. 500-1]

 Order of Suspension of Trading; In the Matter of A-Power Energy
Generation Systems, Ltd.

July 3, 2012.
    It appears to the Securities and Exchange Commission
(``Commission'') that there is a lack of current and accurate
information concerning the securities of A-Power Energy Generation
Systems, Ltd. (``A-Power'') because, among other things, it: (1) Has
not filed any periodic reports since the period ended December 31,
2009; and (2) failed to disclose that its independent auditor resigned
after A-Power's management informed the auditor that it did not intend
to regain current filing status with the Commission.
    The Commission is of the opinion that the public interest and the
protection of investors require a suspension of trading in the
securities of the above-listed company.
    Therefore, it is ordered, pursuant to Section 12(k) of the
Securities Exchange Act of 1934, that trading in the securities of A-
Power is suspended for the period from 9:30 a.m. EDT on July 3, 2012,
through 11:59 p.m. EDT on July 17, 2012.

By the Commission.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2012-16654 Filed 7-3-12; 11:15 am]
BILLING CODE 8011-01-P