[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Notices]
[Pages 71952-71965]
[FR Doc No: 2021-27423]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93774; File No. SR-PEARL-2021-57]

Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing
and Immediate Effectiveness of a Proposed Rule Change To Amend the MIAX
Pearl Options Fee Schedule To Adopt a Tiered-Pricing Structure for
Certain Connectivity Fees

December 14, 2021.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on December 1, 2021, MIAX PEARL, LLC (``MIAX Pearl'' or ``Exchange'')
filed with the Securities and Exchange Commission (``Commission'') a
proposed rule change as described in Items I, II, and III below, which
Items have been prepared by the Exchange. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is filing a proposal to amend the MIAX Pearl Options
Fee Schedule (the ``Fee Schedule'') to amend certain connectivity fees.
    The text of the proposed rule change is available on the Exchange's
website at http://www.miaxoptions.com/rule-filings/pearl at MIAX
Pearl'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 Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set

forth in sections A, B, and C below, of the most significant aspects of
such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend the Fee Schedule to adopt a tiered-
pricing structure for the 10 gigabit (``Gb'') ultra-low latency
(``ULL'') fiber connection available to Members \3\ and non-Members.
The Exchange initially filed this proposal on July 30, 2021, with the
proposed fee changes effective beginning August 1, 2021 (``First
Proposed Rule Change'').\4\ The First Proposed Rule Change was
published for comment in the Federal Register on August 17, 2021.\5\
The Commission received one comment letter on the First Proposed Rule
Change.\6\ The Exchange withdrew the First Proposed Rule Change on
September 24, 2021 and re-submitted the proposal on September 24, 2021,
with the proposed fee changes being immediately effective (``Second
Proposed Rule Change'').\7\ The Second Proposed Rule Change was
published for comment in the Federal Register on October 4, 2021.\8\
The Second Proposed Rule Change provided additional justification for
the proposed fee changes and addressed certain points raised in the
single comment letter that was submitted on the First Proposed Rule
Change. The Commission received four comment letters from three
separate commenters on the Second Proposed Rule Change.\9\ The
Commission suspended the Second Proposed Rule Change on November 22,
2021.\10\ The Exchange withdrew the Second Proposed Rule Change on
December 1, 2021 and now submits this proposal for immediate
effectiveness (``Third Proposed Rule Change''). This Third Proposed
Rule Change meaningfully attempts to address issues or questions that
have been raised by providing additional justification and explanation
for the proposed fee changes and directly respond to the points raised
in SIG Letters 1, 2, and 3, as well as the SIFMA Letter submitted on
the First and Second Proposed Rule Changes,\11\ and feedback provided
by Commission Staff during a telephone conversation on November 18,
2021 relating to the Second Proposed Rule Change.
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    \3\ The term ``Member'' means an individual or organization that
is registered with the Exchange pursuant to Chapter II of these
Rules for purposes of trading on the Exchange as an ``Electronic
Exchange Member'' or ``Market Maker.'' Members are deemed
``members'' under the Exchange Act. See Exchange Rule 100.
    \4\ See Securities Exchange Act Release No. 92644 (August 11,
2021), 86 FR 46055 (August 17, 2021) (SR-PEARL-2021-36).
    \5\ Id.
    \6\ See Letter from Richard J. McDonald, Susquehanna
International Group, LLC (``SIG''), to Vanessa Countryman,
Secretary, Commission, dated September 7, 2021 (``SIG Letter 1'').
    \7\ See Securities Exchange Act Release No. 93162 (September 28,
2021), 86 FR 54739 (October 4, 2021) (SR-PEARL-2021-45).
    \8\ Id.
    \9\ See letters from Richard J. McDonald, SIG, to Vanessa
Countryman, Secretary, Commission, dated October 1, 2021 (``SIG
Letter 2'') and October 26, 2021 (``SIG Letter 3''). See also letter
from Tyler Gellasch, Executive Director, Healthy Markets Association
(``HMA''), to Hon. Gary Gensler, Chair, Commission, dated October
29, 2021 (commenting on SR-CboeEDGA-2021-017, SR-CboeBYX-2021-020,
SR-Cboe-BZX-2021-047, SR-CboeEDGX-2021-030, SR-MIAX-2021-41, SR-
PEARL-2021-45, and SR-EMERALD-2021-29 and stating that ``MIAX has
repeatedly filed to change its connectivity fees in a way that will
materially lower costs for many users, while increasing the costs
for some of its heaviest of users. These filings have been withdrawn
and repeatedly refiled. Each time, however, the filings contain
significantly greater information about who is impacted and how than
other filings that have been permitted to take effect without
suspension'') (emphasis added) (``HMA Letter''); and Ellen Green,
Managing Director, Equity and Options Market Structure, Securities
Industry and Financial Markets Association (``SIFMA''), to Vanessa
Countryman, Secretary, Commission, dated November 26, 2021 (``SIFMA
Letter'').
    \10\ See Securities Exchange Act Release No. 93639 (November 22,
2021), 86 FR 67758 (November 29, 2021).
    \11\ The Exchange notes that while the HMA Letter applauds the
level of disclosure the Exchange included in the First and Second
Proposed Rule Changes, the HMA Letter does not raise specific issues
with the First or Second Proposed Rule Changes. Rather, it
references the Exchange's proposals by way of comparison to show the
varying levels of transparency in exchange fees filings and
recommends changes to the Commission's review process of exchange
fee filings generally. Therefore, the Exchange does not feel it is
necessary to address the issues raised in the HMA Letter.
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10Gb ULL Tiered-Pricing Structure
    The Exchange proposes to amend Sections 5(a)-(b) of the Fee
Schedule to provide for a tiered-pricing structure for 10Gb ULL
connections for Members and non-Members. Currently, the Exchange
assesses Members and non-Members a flat monthly fee of $10,000 per 10Gb
ULL connection for access to the Exchange's primary and secondary
facilities.
    The Exchange now proposes to move from a flat monthly fee per
connection to a tiered-pricing structure under which the monthly fee
would vary depending on the number of 10Gb ULL connections each Member
or non-Member elects to purchase per exchange. Specifically, the
Exchange proposes to decrease the fee for the first and second 10Gb ULL
connections for each Member and non-Member from the current flat
monthly fee of $10,000 to $9,000 per connection. To encourage more
efficient connectivity usage, the Exchange proposes to increase the per
connection fee for Members and non-Members that purchase more than two
10Gb ULL connections. In particular, (i) the third and fourth 10Gb ULL
connections for each Member or non-Member will increase from the
current flat monthly fee of $10,000 to $11,000 per connection; and (ii)
for the fifth 10Gb ULL connection, and each 10Gb ULL connection
purchased by Members and non-Members thereafter, the fee will increase
from the flat monthly fee of $10,000 to $13,000 per connection. The
proposed 10Gb ULL tiered-pricing structure and fees are collectively
referred to herein as the ``Proposed Access Fees.''
    The Exchange believes the other exchange's connectivity fees are a
useful example of alternative approaches to providing and charging for
connectivity and provides the below table for comparison purposes only
to show how its proposed fees compare to fees currently charged by
other options exchanges for similar connectivity. As shown by the below
table, the Exchange's proposed highest tier is still less than fees
charged for similar connectivity provided by other options exchanges.

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               Exchange                        Type of port                         Monthly fee
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MIAX Pearl (as proposed)..............  10Gb ULL.................  1-2 connection. $9,000.00
                                                                   3-4 connections. $11,000.00
                                                                   5 or more. $13,000.00.
The NASDAQ Stock Market LLC             10Gb Ultra fiber.........  $15,000.00.
 (``NASDAQ'') \12\.
Nasdaq ISE LLC (``ISE'') \13\.........  10Gb Ultra fiber.........  $15,000.00.
Nasdaq PHLX LLC (``PHLX'') \14\.......  10Gb Ultra Fiber.........  $15,000.00.
NYSE American LLC (``Amex'') \15\.....  10Gb LX LCN..............  $22,000.00.
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    The Exchange will continue to assess monthly Member and non-Member
network connectivity fees for connectivity to the primary and secondary
facilities in any month the Member or non-Member is credentialed to use
any of the Exchange APIs or market data feeds in the production
environment. The Exchange proposes to pro-rate the fees when a Member
or non-Member makes a change to the connectivity (by adding or deleting
connections) with such pro-rated fees based on the number of trading
days that the Member or non-Member has been credentialed to utilize any
of the Exchange APIs or market data feeds in the production environment
through such connection, divided by the total number of trading days in
such month multiplied by the applicable monthly rate. The Exchange will
continue to assess monthly Member and non-Member network connectivity
fees for connectivity to the disaster recovery facility in each month
during which the Member or non-Member has established connectivity with
the disaster recovery facility.
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    \12\ See NASDAQ Rules, General 8: Connectivity, Section 1. Co-
Location Services.
    \13\ See PHLX Rules, General 8: Connectivity.
    \14\ See ISE Rules, General 8: Connectivity.
    \15\ See NYSE American Options Fee Schedule, Section IV.
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    The Exchange's MIAX Express Network Interconnect (``MENI'') can be
configured to provide Members and non-Members of the Exchange network
connectivity to the trading platforms, market data systems, test
systems, and disaster recovery facilities of both the Exchange and its
affiliate, Miami International Securities Exchange, LLC (``MIAX''), via
a single, shared connection. Members and non-Members utilizing the MENI
to connect to the trading platforms, market data systems, test systems,
and disaster recovery facilities of the Exchange and MIAX via a single,
shared connection will continue to only be assessed one monthly
connectivity fee per connection, regardless of the trading platforms,
market data systems, test systems, and disaster recovery facilities
accessed via such connection.
2. Statutory Basis
    The Exchange believes that the Proposed Access Fees are consistent
with Section 6(b) of the Act \16\ in general, and furthers the
objectives of Section 6(b)(4) of the Act \17\ in particular, in that
they provide for the equitable allocation of reasonable dues, fees and
other charges among Members and other persons using any facility or
system which the Exchange operates or controls. The Exchange also
believes the Proposed Access Fees further the objectives of Section
6(b)(5) of the Act \18\ in that they are designed to promote just and
equitable principles of trade, remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general protect investors and the public interest and are not
designed to permit unfair discrimination between customers, issuers,
brokers and dealers.
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    \16\ 15 U.S.C. 78f(b).
    \17\ 15 U.S.C. 78f(b)(4).
    \18\ 15 U.S.C. 78f(b)(5).
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    On March 29, 2019, the Commission issued an Order disapproving a
proposed fee change by the BOX Market LLC Options Facility to establish
connectivity fees for its BOX Network (the ``BOX Order'').\19\ On May
21, 2019, the Commission Staff issued guidance ``to assist the national
securities exchanges and FINRA . . . in preparing Fee Filings that meet
their burden to demonstrate that proposed fees are consistent with the
requirements of the Securities Exchange Act.'' \20\ Accordingly, the
Exchange believes that the Proposed Access Fees are consistent with the
Act because they (i) are reasonable, equitably allocated, not unfairly
discriminatory, and not an undue burden on competition; (ii) comply
with the BOX Order and the Guidance; (iii) are supported by evidence
(including comprehensive revenue and cost data and analysis) that they
are fair and reasonable because they will not result in excessive
pricing or supra-competitive profit; and (iv) utilize a cost-based
justification framework that is substantially similar to a framework
previously used by the Exchange, and its affiliates MIAX Emerald, LLC
(``MIAX Emerald'') and MIAX, to amend other non-transaction fees.\21\
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    \19\ See Securities Exchange Act Release No. 85459 (March 29,
2019), 84 FR 13363 (April 4, 2019) (SR-BOX-2018-24, SR-BOX-2018-37,
and SR-BOX-2019-04) (Order Disapproving Proposed Rule Changes to
Amend the Fee Schedule on the BOX Market LLC Options Facility to
Establish BOX Connectivity Fees for Participants and Non-
Participants Who Connect to the BOX Network).
    \20\ See Staff Guidance on SRO Rule Filings Relating to Fees
(May 21, 2019), at https://www.sec.gov/tm/staff-guidance-sro-rule-filings-fees (the ``Guidance'').
    \21\ See Securities Exchange Act Release Nos. 91460 (April 2,
2021), 86 FR 18349 (SR-EMERALD-2021-11) (proposal to adopt port
fees, increase connectivity fees, and increase additional limited
service ports); 91033 (February 1, 2021), 86 FR 8455 (February 5,
2021) (SR-EMERALD-2021-03) (proposal to adopt trading permit fees);
90980 (January 25, 2021), 86 FR 7602 (January 29, 2021) (SR-MIAX-
2021-02) (proposal to increase connectivity fees).
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The Proposed Access Fees Will Not Result in a Supra-Competitive Profit
    The Exchange believes that exchanges, in setting fees of all types,
should meet very high standards of transparency to demonstrate why each
new fee or fee increase meets the requirements of the Act that fees be
reasonable, equitably allocated, not unfairly discriminatory, and not
create an undue burden on competition among market participants. The
Exchange believes this high standard is especially important when an
exchange imposes various access fees for market participants to access
an exchange's marketplace. The Exchange deems connectivity to be access
fees. It records these fees as part of its ``Access Fees'' revenue in
its financial statements.
    In its Guidance, the Commission Staff stated that, ``[a]s an
initial step in assessing the reasonableness of a fee, staff considers
whether the fee is constrained by significant competitive forces.''
\22\ The Commission Staff Guidance further states that, ``. . . even
where an SRO cannot demonstrate, or does not assert, that significant
competitive forces constrain the fee at issue, a cost-based discussion
may be an alternative basis upon which to show consistency with the
Exchange Act.'' \23\ In its Guidance, the Commission staff further
states that, ``[i]f an SRO seeks to support its claims that a proposed
fee is fair and reasonable because it will permit recovery of the SRO's
costs, or will not result in excessive pricing or supracompetitive
profit, specific information, including quantitative information,
should be provided to support that argument.'' \24\ The Exchange does
not assert that the Proposed Access Fees are constrained by competitive
forces. Rather, the Exchange asserts that the Proposed Access Fees are
reasonable because they will permit recovery of the Exchange's costs in
providing access services to supply 10Gb ULL connectivity and will not
result in the Exchange generating a supra-competitive profit.
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    \22\ See Guidance, supra note 20.
    \23\ Id.
    \24\ Id.
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    The Guidance defines ``supra-competitive profit'' as ``profits that
exceed the profits that can be obtained in a competitive market.'' \25\
The Commission Staff further states in the Guidance that ``the SRO
should provide an analysis of the SRO's baseline revenues, costs, and
profitability (before the proposed fee change) and the SRO's expected
revenues, costs, and profitability (following the proposed fee

change) for the product or service in question.'' \26\ The Exchange
provides this analysis below.
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    \25\ Id.
    \26\ Id.
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    Based on this analysis, the Exchange believes the Proposed Access
Fees are reasonable and do not result in a ``supra-competitive'' \27\
profit. The Exchange believes that it is important to demonstrate that
the Proposed Access Fees are based on its costs and reasonable business
needs. The Exchange believes the Proposed Access Fees will allow the
Exchange to offset expenses the Exchange has and will incur, and that
the Exchange provides sufficient transparency (described below) into
the costs and revenue underlying the Proposed Access Fees. Accordingly,
the Exchange provides an analysis of its revenues, costs, and
profitability associated with the Proposed Access Fees. This analysis
includes information regarding its methodology for determining the
costs and revenues associated with the Proposed Access Fees. As a
result of this analysis, the Exchange believes the Proposed Access Fees
are fair and reasonable as a form of cost recovery plus present the
possibility of a reasonable return for the Exchange's aggregate costs
of offering connectivity to the Exchange and MIAX.
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    \27\ See Guidance, supra note 20.
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    The Proposed Access Fees are based on a cost-plus model. In
determining the appropriate fees to charge, the Exchange considered its
costs and MIAX's costs to provide connectivity, using what it believes
to be a conservative methodology (i.e., that strictly considers only
those costs that are most clearly directly related to the provision and
maintenance of 10Gb ULL connectivity) to estimate such costs,\28\ as
well as the relative costs of providing and maintaining 10Gb ULL
connectivity, and set fees that are designed to cover its costs with a
limited return in excess of such costs. However, as discussed more
fully below, such fees may also result in the Exchange recouping less
than all of its costs of providing and maintaining 10Gb ULL
connectivity because of the uncertainty of forecasting subscriber
decision making with respect to firms' connectivity needs and the
likely potential for increased costs to procure the third-party
services described below.
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    \28\ For example, the Exchange only included the costs
associated with providing and supporting connectivity and excluded
from its connectivity cost calculations any cost not directly
associated with providing and maintaining such connectivity. Thus,
the Exchange notes that this methodology underestimates the total
costs of providing and maintaining connectivity.
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    To determine the Exchange's costs to provide access services
associated with the Proposed Access Fees, the Exchange conducted an
extensive cost review in which the Exchange analyzed nearly every
expense item in the Exchange's general expense ledger to determine
whether each such expense relates to the Proposed Access Fees, and, if
such expense did so relate, what portion (or percentage) of such
expense actually supports access services associated with the Proposed
Access Fees.
    The Exchange also provides detailed information regarding the
Exchange's cost allocation methodology--namely, information that
explains the Exchange's rationale for determining that it was
reasonable to allocate certain expenses described in this filing
towards the cost to the Exchange to provide the access services
associated with the Proposed Access Fees. The Exchange conducted a
thorough internal analysis to determine the portion (or percentage) of
each expense to allocate to the support of access services associated
with the Proposed Access Fees. This analysis \29\ included discussions
with each Exchange department head to determine the expenses that
support access services associated with the Proposed Access Fees. Once
the expenses were identified, the Exchange department heads, with the
assistance of our internal finance department, reviewed such expenses
holistically on an Exchange-wide level to determine what portion of
that expense supports providing access services for the Proposed Access
Fees. The sum of all such portions of expenses represents the total
cost to the Exchange to provide access services associated with the
Proposed Access Fees. For the avoidance of doubt, no expense amount was
allocated twice.
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    \29\ A description of the Exchange's methodology for determining
the portion (or percentage) of each expense to allocate to the
Proposed Access Fees is being provide in response to comments from
SIG and SIFMA. See SIG Letter 3 and SIFMA Letter, supra note 9.
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    To determine the Exchange's projected revenue associated with the
Proposed Access Fees, the Exchange analyzed the number of Members and
non-Members currently utilizing the 10Gb ULL fiber connection and used
a recent monthly billing cycle representative of 2021 monthly revenue.
The Exchange also provided its baseline by analyzing July 2021, the
monthly billing cycle prior to the Proposed Access Fees going into
effect, and compared it to its expenses for that month.\30\ As
discussed below, the Exchange does not believe it is appropriate to
factor into its analysis future revenue growth or decline into its
projections for purposes of these calculations, given the uncertainty
of such projections due to the continually changing access needs of
market participants and potential increase in internal and third party
expenses. The Exchange is presenting its revenue and expense associated
with the Proposed Access Fees in this filing in a manner that is
consistent with how the Exchange presents its revenue and expense in
its Audited Unconsolidated Financial Statements. The Exchange's most
recent Audited Unconsolidated Financial Statement is for 2020. However,
since the revenue and expense associated with the Proposed Access Fees
were not in place in 2020 or for the first seven months of 2021, the
Exchange believes its 2020 Audited Unconsolidated Financial Statement
is not representative of its current total annualized revenue and costs
associated with the Proposed Access Fees. Accordingly, the Exchange
believes it is more appropriate to analyze the Proposed Access Fees
utilizing its 2021 revenue and costs, as described herein, which
utilize the same presentation methodology as set forth in the
Exchange's previously-issued Audited Unconsolidated Financial
Statements. Based on this analysis, the Exchange believes that the
Proposed Access Fees are reasonable because they will allow the
Exchange to recover its costs associated with providing access services
related to the Proposed Access Fees and not result in excessive pricing
or supra-competitive profit.
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    \30\ Id.
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    As outlined in more detail below, the Exchange and MIAX project
that the annualized expense for 2021 to provide all network
connectivity services (that is, the shared network connectivity of all
connectivity alternatives of the Exchange and MIAX, but excluding MIAX
Emerald) to be approximately $15.9 million per annum or an average of
$1,325,000 per month. The Exchange implemented the Proposed Access Fees
on August 1, 2021 in the First Proposed Rule Change. For July 2021,
prior to the Proposed Access Fees, the Exchange and MIAX Members and
non-Members purchased a total of 156 10Gb ULL connections for which the
Exchange and MIAX charged a total of approximately $1,547,620 (this
includes MIAX Pearl and MIAX Members and non-Members dropping or adding
connections mid-month, resulting a pro-rated charge at times). This
resulted in a profit of

$222,620 for that month (a profit margin of 14.4%). For the month of
October 2021, which includes the tiered rates for 10Gb ULL connectivity
for the Proposed Access Fees, MIAX Pearl and MIAX Exchange Members and
non-Members purchased a total of 154 10Gb ULL connections for which the
Exchange and MIAX charged a total of approximately $1,684,000 for that
month (also including pro-rated connection charges). This resulted in a
profit of $359,000 for that month for a profit margin of 21.3% (a
modest 6.9% profit margin increase from July 2021 to October 2021 from
14.4% to 21.3%). The Exchange believes that the Proposed Access Fees
are reasonable because they are designed to generate an additional 6.9%
of profit margin per-month (reflecting a 21.3% profit margin).\31\ The
Exchange cautions that this profit margin may fluctuate from month to
month based on the uncertainty of predicting how many connections may
be purchased from month to month as Members and non-Members are able to
add and drop connections at any time based on their own business
decisions, which they frequently do. This profit margin may also
decrease due to the significant inflationary pressure on capital items
that the Exchange needs to purchase to maintain the Exchange's
technology and systems.\32\
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    \31\ The Exchange notes that this profit margin differs from the
First and Second Proposed Rule Changes because the Exchange now has
the benefit of using a more recent billing cycle under the Proposed
Access Fees (October 2021) and comparing it to a baseline month
(July 2021) from before the Proposed Access Fees were in effect.
    \32\ See ``Supply chain chaos is already hitting global growth.
And it's about to get worse'', by Holly Ellyatt, CNBC, available at
https://www.cnbc.com/2021/10/18/supply-chain-chaos-is-hitting-global-growth-and-could-get-worse.html (October 18, 2021); and
``There will be things that people can't get, at Christmas, White
House warns'' by Jarrett Renshaw and Trevor Hunnicutt, Reuters,
available at https://www.reuters.com/world/us/americans-may-not-get-some-christmas-treats-white-house-officials-warn-2021-10-12/
(October 12, 2021).
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    The Exchange and MIAX have been subject to price increases upwards
of 30% on network equipment due to supply chain shortages. This, in
turn, results in higher overall costs for ongoing system maintenance,
but also to purchase the items necessary to ensure ongoing system
resiliency, performance, and determinism. These costs are expected to
continue to go up as the U.S. economy continues to struggle with supply
chain and inflation related issues.
    As mentioned above, the Exchange and MIAX project that the
annualized expense for 2021 to provide network connectivity services
(all connectivity alternatives) to be approximately $15.9 million per
annum or an average of $1,325,000 per month and that these costs are
expected to increase not only due to anticipated significant
inflationary pressure, but also periodic fee increases by third
parties.\33\ The Exchange notes that there are material costs
associated with providing the infrastructure and headcount to fully-
support access to the Exchange. The Exchange incurs technology expense
related to establishing and maintaining Information Security services,
enhanced network monitoring and customer reporting, as well as
Regulation SCI mandated processes, associated with its network
technology. While some of the expense is fixed, much of the expense is
not fixed, and thus increases the cost to the Exchange to provide
access services associated with the Proposed Access Fees. For example,
new Members to the Exchange may require the purchase of additional
hardware to support those Members as well as enhanced monitoring and
reporting of customer performance that the Exchange and its affiliates
provide. Further, as the total number Members increases, the Exchange
and its affiliates may need to increase their data center footprint and
consume more power, resulting in increased costs charged by their
third-party data center provider. Accordingly, the cost to the Exchange
and its affiliates to provide access to its Members is not fixed. The
Exchange believes the Proposed Access Fees are a reasonable attempt to
offset a portion of the costs to the Exchange associated with providing
access to its network infrastructure.
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    \33\ For example, on October 20, 2021, ICE Data Services
announced a 3.5% price increase effective January 1, 2022 for most
services. The price increase by ICE Data Services includes their
SFTI network, which is relied on by a majority of market
participants, including the Exchange. See email from ICE Data
Services to the Exchange, dated October 20, 2021. The Exchange
further notes that on October 22, 2019, the Exchange was notified by
ICE Data Services that it was raising its fees charged to the
Exchange by approximately 11% for the SFTI network.
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    The Exchange only has four primary sources of revenue and cost
recovery mechanisms: Transaction fees, access fees (which includes the
Proposed Access Fees), regulatory fees, and market data fees.
Accordingly, the Exchange must cover all of its expenses from these
four primary sources of revenue and cost recovery mechanisms. Until
recently, the Exchange has operated at a cumulative net annual loss
since it launched operations in 2017.\34\ This is a result of providing
a low cost alternative to attract order flow and encourage market
participants to experience the high determinism and resiliency of the
Exchange's trading Systems.\35\ To do so, the Exchange chose to waive
the fees for some non-transaction related services or provide them at a
very marginal cost, which was not profitable to the Exchange. This
resulted in the Exchange forgoing revenue it could have generated from
assessing higher fees.
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    \34\ The Exchange has incurred a cumulative loss of $86 million
since its inception in 2017 to 2020, the last year for which the
Exchange's Form 1 data is available. See Exchange's Form 1/A,
Application for Registration or Exemption from Registration as a
National Securities Exchange, filed July 28, 2021, available at
https://www.sec.gov/Archives/edgar/vprr/2100/21000461.pdf.
    \35\ The term ``System'' means the automated trading system used
by the Exchange for the trading of securities. See Exchange Rule
100.
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    The Exchange believes that the Proposed Access Fees are fair and
reasonable because they will not result in excessive pricing or supra-
competitive profit, when comparing the total annual expense that the
Exchange projects to incur in connection with providing these access
services versus the total annual revenue that the Exchange projects to
collect in connection with services associated with the Proposed Access
Fees. As mentioned above, for 2021,\36\ the total annual expense for
MIAX Pearl and MIAX for providing the access services associated with
the Proposed Access Fees is projected to be approximately $15.9
million, or approximately $1,325,000 per month. This projected total
annual expense is comprised of the following, all of which are directly
related to the access services associated with the Proposed Access
Fees: (1) Third-party expense, relating to fees paid by the Exchange to
third-parties for certain products and services; and (2) internal
expense, relating to the internal costs of the Exchange to provide the
services associated with the Proposed Access Fees.\37\ As noted above,
the Exchange believes it is more appropriate to analyze the Proposed
Access Fees utilizing its 2021 revenue and costs, which utilize the
same presentation methodology as set forth in the Exchange's
previously-issued Audited Unconsolidated Financial Statements.\38\

The $15.9 million projected total annual expense is directly related to
the access services associated with the Proposed Access Fees, and not
any other product or service offered by the Exchange or MIAX. It does
not include general costs of operating matching engines and other
trading technology. No expense amount was allocated twice. Further, the
Exchange notes that, with respect to the MIAX Pearl expenses included
herein, those expenses only cover the MIAX Pearl options market;
expenses associated with MIAX Pearl Equities are accounted for
separately and are not included within the scope of this filing.
---------------------------------------------------------------------------

    \36\ The Exchange has not yet finalized its 2021 year end
results.
    \37\ The percentage allocations used in this proposed rule
change may differ from past filings from the Exchange or its
affiliates due to, among other things, changes in expenses charged
by third-parties, adjustments to internal resource allocations, and
different system architecture of the Exchange as compared to its
affiliates.
    \38\ For example, the Exchange previously noted that all third-
party expense described in its prior fee filing was contained in the
information technology and communication costs line item under the
section titled ``Operating Expenses Incurred Directly or Allocated
From Parent,'' in the Exchange's 2019 Form 1 Amendment containing
its financial statements for 2018. See Securities Exchange Act
Release No. 87876 (December 31, 2019), 85 FR 757 (January 7, 2020)
(SR-PEARL-2019-36). Accordingly, the third-party expense described
in this filing is attributed to the same line item for the
Exchange's 2021 Form 1 Amendment, which will be filed in 2022.
---------------------------------------------------------------------------

    As discussed above, the Exchange conducted an extensive cost review
in which the Exchange analyzed nearly every expense item in the
Exchange's general expense ledger (this includes over 150 separate and
distinct expense items) to determine whether each such expense relates
to the access services associated with the Proposed Access Fees, and,
if such expense did so relate, what portion (or percentage) of such
expense actually supports those services, and thus bears a relationship
that is, ``in nature and closeness,'' directly related to those
services. The sum of all such portions of expenses represents the total
cost of the Exchange to provide access services associated with the
Proposed Access Fees.
External Expense Allocations
    For 2021, expenses relating to fees paid by the Exchange and MIAX
to third-parties for products and services necessary to provide the
access services associated with the Proposed Access Fees is projected
to be $3.9 million. This includes, but is not limited to, a portion of
the fees paid to: (1) Equinix for data center services, including for
the primary, secondary, and disaster recovery locations of the
Exchange's trading system infrastructure; (2) Zayo Group Holdings, Inc.
(``Zayo'') for network services (fiber and bandwidth products and
services) linking the Exchange's and its affiliates' office locations
in Princeton, New Jersey and Miami, Florida, to all data center
locations; (3) Secure Financial Transaction Infrastructure
(``SFTI''),\39\ which supports connectivity and feeds for the entire
U.S. options industry; (4) various other services providers (including
Thompson Reuters, NYSE, Nasdaq, and Internap), which provide content,
connectivity services, and infrastructure services for critical
components of options connectivity and network services; and (5)
various other hardware and software providers (including Dell and
Cisco, which support the production environment in which Members
connect to the network to trade, receive market data, etc.).
---------------------------------------------------------------------------

    \39\ See supra note 33.
---------------------------------------------------------------------------

    For clarity, the Exchange took a conservative approach in
determining the expense and the percentage of that expense to be
allocated to the providing access services in connection with the
Proposed Access Fees. Only a portion of all fees paid to such third-
parties is included in the third-party expenses described herein, and
no expense amount is allocated twice. Accordingly, the Exchange does
not allocate its entire information technology and communication costs
to the access services associated with the Proposed Access Fees. This
may result in the Exchange under allocating an expense to the provision
of access services in connection with the Proposed Access Fees and such
expenses may actually be higher or increase above what the Exchange
utilizes within this proposal. Further, the Exchange notes that
expenses associated with its affiliate, MIAX Emerald, are accounted for
separately and are not included within the scope of this filing.
Further, as part its ongoing assessment of costs and expenses
(described above), the Exchange recently conducted a periodic thorough
review of its expenses and resource allocations which, in turn,
resulted in a revised percentage allocations in this filing. Therefore,
the percentage allocations used in this proposed rule change may differ
from past filings from the Exchange or its affiliates due to, among
other things, changes in expenses charged by third-parties, adjustments
to internal resource allocations, and different system architecture of
the Exchange as compared to its affiliates.
    The Exchange believes it is reasonable to allocate such third-party
expense described above towards the total cost to the Exchange and MIAX
to provide the access services associated with the Proposed Access
Fees. In particular, the Exchange believes it is reasonable to allocate
the identified portion of the Equinix expense because Equinix operates
the data centers (primary, secondary, and disaster recovery) that host
the Exchange's network infrastructure. This includes, among other
things, the necessary storage space, which continues to expand and
increase in cost, power to operate the network infrastructure, and
cooling apparatuses to ensure the Exchange's network infrastructure
maintains stability. Without these services from Equinix, the Exchange
would not be able to operate and support the network and provide the
access services associated with the Proposed Access Fees to its Members
and their customers. The Exchange did not allocate all of the Equinix
expense toward the cost of providing the access services associated
with the Proposed Access Fees, only that portion which the Exchange
identified as being specifically mapped to providing the access
services associated with the Proposed Access Fees, approximately 62% of
the total applicable Equinix expense. The Exchange believes this
allocation is reasonable because it represents the Exchange's actual
cost to provide the access services associated with the Proposed Access
Fees, and not any other service, as supported by its cost review.\40\
---------------------------------------------------------------------------

    \40\ As noted above, the percentage allocations used in this
proposed rule change may differ from past filings from the Exchange
or its affiliates due to, among other things, changes in expenses
charged by third-parties, adjustments to internal resource
allocations, and different system architecture of the Exchange as
compared to its affiliates. Again, as part its ongoing assessment of
costs and expenses, the Exchange recently conducted a periodic
thorough review of its expenses and resource allocations which, in
turn, resulted in a revised percentage allocations in this filing.
---------------------------------------------------------------------------

    The Exchange believes it is reasonable to allocate the identified
portion of the Zayo expense because Zayo provides the internet, fiber
and bandwidth connections with respect to the network, linking the
Exchange with its affiliates, MIAX and MIAX Emerald, as well as the
data center and disaster recovery locations. As such, all of the trade
data, including the billions of messages each day per exchange, flow
through Zayo's infrastructure over the Exchange's network. Without
these services from Zayo, the Exchange would not be able to operate and
support the network and provide the access services associated with the
Proposed Access Fees. The Exchange did not allocate all of the Zayo
expense toward the cost of providing the access services associated
with the Proposed Access Fees, only the portion which the Exchange
identified as being specifically mapped to providing the Proposed
Access Fees, approximately 62% of the total applicable Zayo expense.
The Exchange believes this allocation is reasonable because it
represents the Exchange's actual cost to provide the access services
associated with the Proposed

Access Fees, and not any other service, as supported by its cost
review.\41\
---------------------------------------------------------------------------

    \41\ Id.
---------------------------------------------------------------------------

    The Exchange believes it is reasonable to allocate the identified
portions of the SFTI expense and various other service providers'
(including Thompson Reuters, NYSE, Nasdaq, and Internap) expense
because those entities provide connectivity and feeds for the entire
U.S. options industry, as well as the content, connectivity services,
and infrastructure services for critical components of the network.
Without these services from SFTI and various other service providers,
the Exchange would not be able to operate and support the network and
provide access to its Members and their customers. The Exchange did not
allocate all of the SFTI and other service providers' expense toward
the cost of providing the access services associated with the Proposed
Access Fees, only the portions which the Exchange identified as being
specifically mapped to providing the access services associated with
the Proposed Access Fees, approximately 75% of the total applicable
SFTI and other service providers' expense. The Exchange believes this
allocation is reasonable because it represents the Exchange's actual
cost to provide the access services associated with the Proposed Access
Fees.\42\
---------------------------------------------------------------------------

    \42\ Id. See also supra note 33 (regarding SFTI's announced fee
increases).
---------------------------------------------------------------------------

    The Exchange believes it is reasonable to allocate the identified
portion of the other hardware and software provider expense because
this includes costs for dedicated hardware licenses for switches and
servers, as well as dedicated software licenses for security monitoring
and reporting across the network. Without this hardware and software,
the Exchange would not be able to operate and support the network and
provide access to its Members and their customers. The Exchange did not
allocate all of the hardware and software provider expense toward the
cost of providing the access services associated with the Proposed
Access Fees, only the portions which the Exchange identified as being
specifically mapped to providing the access services associated with
the Proposed Access Fees, approximately 51% of the total applicable
hardware and software provider expense. The Exchange believes this
allocation is reasonable because it represents the Exchange's actual
cost to provide the access services associated with the Proposed Access
Fees.\43\
---------------------------------------------------------------------------

    \43\ See supra note 40.
---------------------------------------------------------------------------

Internal Expense Allocations
    For 2021, total projected internal expenses relating to the
internal costs of the Exchange and MIAX to provide the access services
associated with the Proposed Access Fees is projected to be
approximately $12 million. This includes, but is not limited to, costs
associated with: (1) Employee compensation and benefits for full-time
employees that support the access services associated with the Proposed
Access Fees, including staff in network operations, trading operations,
development, system operations, business, as well as staff in general
corporate departments (such as legal, regulatory, and finance) that
support those employees and functions (including an increase as a
result of the higher determinism project); (2) depreciation and
amortization of hardware and software used to provide the access
services associated with the Proposed Access Fees, including equipment,
servers, cabling, purchased software and internally developed software
used in the production environment to support the network for trading;
and (3) occupancy costs for leased office space for staff that provide
the access services associated with the Proposed Access Fees. The
breakdown of these costs is more fully-described below.
    For clarity, and as stated above, the Exchange took a conservative
approach in determining the expense and the percentage of that expense
to be allocated to the providing access services in connection with the
Proposed Access Fees. Only a portion of all such internal expenses are
included in the internal expense herein, and no expense amount is
allocated twice. Accordingly, the Exchange does not allocate its entire
costs contained in those items to the access services associated with
the Proposed Access Fees. This may result in the Exchange under
allocating an expense to the provision of access services in connection
with the Proposed Access Fees and such expenses may actually be higher
or increase above what the Exchange utilizes within this proposal.
Further, as part its ongoing assessment of costs and expenses
(described above), the Exchange recently conducted a periodic thorough
review of its expenses and resource allocations which, in turn,
resulted in a revised percentage allocations in this filing.
    The Exchange believes it is reasonable to allocate such internal
expense described above towards the total cost to the Exchange and MIAX
to provide the access services associated with the Proposed Access
Fees. In particular, the Exchange's and MIAX's combined employee
compensation and benefits expense relating to providing the access
services associated with the Proposed Access Fees is projected to be
$6.1 million, which is only a portion of the approximately $12.6
million (for MIAX) and $9.2 million (for MIAX Pearl) total projected
expense for employee compensation and benefits. The Exchange believes
it is reasonable to allocate the identified portion of such expense
because this includes the time spent by employees of several
departments, including Technology, Back Office, Systems Operations,
Networking, Business Strategy Development (who create the business
requirement documents that the Technology staff use to develop network
features and enhancements), Trade Operations, Finance (who provide
billing and accounting services relating to the network), and Legal
(who provide legal services relating to the network, such as rule
filings and various license agreements and other contracts). As part of
the extensive cost review conducted by the Exchange, the Exchange
reviewed the amount of time spent by employees on matters relating to
the provision of access services associated with the Proposed Access
Fees. Without these employees, the Exchange would not be able to
provide the access services associated with the Proposed Access Fees to
its Members and their customers. The Exchange did not allocate all of
the employee compensation and benefits expense toward the cost of the
access services associated with the Proposed Access Fees, only the
portions which the Exchange identified as being specifically mapped to
providing the access services associated with the Proposed Access Fees,
approximately 28% of the total applicable employee compensation and
benefits expense. The Exchange believes this allocation is reasonable
because it represents the Exchange's actual cost to provide the access
services associated with the Proposed Access Fees, and not any other
service, as supported by its cost review.\44\
---------------------------------------------------------------------------

    \44\ Id.
---------------------------------------------------------------------------

    The Exchange's and MIAX's depreciation and amortization expense
relating to providing the services associated with the Proposed Access
Fees is projected to be $5.3 million, which is only a portion of the
$4.8 million (for MIAX) and $2.9 million (for MIAX Pearl) total
projected expense for depreciation and amortization. The Exchange
believes it is reasonable to

allocate the identified portion of such expense because such expense
includes the actual cost of the computer equipment, such as dedicated
servers, computers, laptops, monitors, information security appliances
and storage, and network switching infrastructure equipment, including
switches and taps that were purchased to operate and support the
network and provide the access services associated with the Proposed
Access Fees. Without this equipment, the Exchange would not be able to
operate the network and provide the access services associated with the
Proposed Access Fees to its Members and their customers. The Exchange
did not allocate all of the depreciation and amortization expense
toward the cost of providing the access services associated with the
Proposed Access Fees, only the portion which the Exchange identified as
being specifically mapped to providing the access services associated
with the Proposed Access Fees, approximately 70% of the total
applicable depreciation and amortization expense, as these access
services would not be possible without relying on such. The Exchange
believes this allocation is reasonable because it represents the
Exchange's actual cost to provide the access services associated with
the Proposed Access Fees, and not any other service, as supported by
its cost review.\45\
---------------------------------------------------------------------------

    \45\ Id.
---------------------------------------------------------------------------

    The Exchange's and MIAX's occupancy expense relating to providing
the services associated with the Proposed Access Fees is projected to
be approximately $0.6 million, which is only a portion of the $0.6
million (for MIAX) and $0.5 million (for MIAX Pearl) total projected
expense for occupancy. The Exchange believes it is reasonable to
allocate the identified portion of such expense because such expense
represents the portion of the Exchange's cost to rent and maintain a
physical location for the Exchange's staff who operate and support the
network, including providing the access services associated with the
Proposed Access Fees. This amount consists primarily of rent for the
Exchange's Princeton, New Jersey office, as well as various related
costs, such as physical security, property management fees, property
taxes, and utilities. The Exchange operates its Network Operations
Center (``NOC'') and Security Operations Center (``SOC'') from its
Princeton, New Jersey office location. A centralized office space is
required to house the staff that operates and supports the network. The
Exchange currently has approximately 200 employees. Approximately two-
thirds of the Exchange's staff are in the Technology department, and
the majority of those staff have some role in the operation and
performance of the access services associated with the Proposed Access
Fees. Accordingly, the Exchange believes it is reasonable to allocate
the identified portion of its occupancy expense because such amount
represents the Exchange's actual cost to house the equipment and
personnel who operate and support the Exchange's network infrastructure
and the access services associated with the Proposed Access Fees. The
Exchange did not allocate all of the occupancy expense toward the cost
of providing the access services associated with the Proposed Access
Fees, only the portion which the Exchange identified as being
specifically mapped to operating and supporting the network,
approximately 53% of the total applicable occupancy expense. The
Exchange believes this allocation is reasonable because it represents
the Exchange's cost to provide the access services associated with the
Proposed Access Fees, and not any other service, as supported by its
cost review.\46\
---------------------------------------------------------------------------

    \46\ Id.
---------------------------------------------------------------------------

    The Exchange notes that a material portion of its total overall
expense is allocated to the provision of access services (including
connectivity, ports, and trading permits). The Exchange believes this
is reasonable and in line, as the Exchange operates a technology-based
business that differentiates itself from its competitors based on its
more deterministic and resilient trading systems that rely on access to
a high performance network, resulting in significant technology
expense. Over two-thirds of Exchange staff are technology-related
employees. The majority of the Exchange's expense is technology-based.
As described above, the Exchange and MIAX have only four primary
sources of fees to recover their costs; thus, the Exchange believes it
is reasonable to allocate a material portion of its total overall
expense towards access fees.
    Based on the above, the Exchange believes that its provision of
access services associated with the Proposed Access Fees will not
result in excessive pricing or supra-competitive profit. As discussed
above, the Exchange projects that its annualized expense for 2021 to
provide network connectivity services (all connectivity alternatives)
to be approximately $15.9 million per annum or an average of $1,325,000
per month. The Exchange implemented the Proposed Access Fees on August
1, 2021. For July 2021, prior to the Proposed Access Fees, Exchange
Members and non-Members purchased a total of 156 10Gb ULL connections
for which the Exchange and MIAX charged approximately $1,547,620. This
resulted in a profit of $222,620 (a profit margin of 14.4%) for that
month (including pro-rated charges). For the month of October 2021,
which includes the tiered 10Gb ULL connectivity fees pursuant to the
Proposed Access Fees, the Exchange and MIAX had Members and non-Members
purchasing a total of 154 10Gb ULL connections for which the Exchange
and MIAX charged a total of approximately $1,684,000 (including pro-
rated charges). This resulted in a profit of $359,000 for that month
for a profit margin of 21.3% (a modest 6.9% profit margin increase from
July 2021 to October 2021 from 14.4% to 21.3%). The Exchange believes
that the Proposed Access Fees are reasonable because they are designed
to generate an additional 6.9% of profit margin per month (reflecting a
21.3% profit margin).\47\ The Exchange believes this modest increase in
profit margin will allow it to continue to recoup its expenses and
continue to invest in its technology infrastructure. Therefore, the
Exchange also believes that this proposed profit margin increase is
reasonable because it represents a reasonable rate of return.
---------------------------------------------------------------------------

    \47\ See supra note 31.
---------------------------------------------------------------------------

    Again, the Exchange cautions that this profit margin may fluctuate
from month to month based in the uncertainty of predicting how many
connections may be purchased from month to month as Members and non-
Members are free to add and drop connections at any time based on their
own business decisions. This profit margin may also decrease due to the
significant inflationary pressure on capital items that it needs to
purchase to maintain the Exchange's technology and systems.\48\
Accordingly, the Exchange believes its total projected revenue for the
providing the access services associated with the Proposed Access Fees
will not result in excessive pricing or supra-competitive profit.
---------------------------------------------------------------------------

    \48\ See supra note 32.
---------------------------------------------------------------------------

    The Exchange believes it is reasonable, equitable and not unfairly
discriminatory to allocate the respective percentages of each expense
category described above towards the total cost to the Exchange of
operating and supporting the network, including providing the access
services associated with the Proposed Access Fees because the Exchange
performed a line-by-line item analysis of nearly every expense of the
Exchange, and has determined the

expenses that directly relate to providing access to the Exchange.
Further, the Exchange notes that, without the specific third-party and
internal expense items listed above, the Exchange would not be able to
provide the access services associated with the Proposed Access Fees to
its Members and their customers. Each of these expense items, including
physical hardware, software, employee compensation and benefits,
occupancy costs, and the depreciation and amortization of equipment,
have been identified through a line-by-line item analysis to be
integral to providing access services. The Proposed Access Fees are
intended to recover the costs of providing access to the Exchange's
System. Accordingly, the Exchange believes that the Proposed Access
Fees are fair and reasonable because they do not result in excessive
pricing or supra-competitive profit, when comparing the actual costs to
the Exchange versus the projected annual revenue from the Proposed
Access Fees.
The Proposed Tiered-Pricing Structure Is Not Unfairly Discriminatory
and Provides for the Equitable Allocation of Fees, Dues, and Other
Charges
    The Exchange believes the proposed tiered-pricing structure is
reasonable, fair, equitable, and not unfairly discriminatory because it
will apply to all Members and non-Members in the same manner based on
the amount of 10Gb ULL connectivity they require based on their own
business decisions and its usage of Exchange resources. All similarly
situated Members and non-Members would be subject to the same fees. The
fees do not depend on any distinction between Members and non-Members
because they are solely determined by the individual Members' or non-
Members' business needs and its impact on Exchange resources.
    The proposed tiered-pricing structure is not unfairly
discriminatory and provides for the equitable allocation of fees, dues,
and other charges because it is designed to encourage Members and non-
Members to be more efficient and economical when determining how to
connect to the Exchange and the amount of the fees are based on the
number of connections a Member or non-Member utilizes. Charging a
higher fee to a Member or non-Member that utilizes numerous connections
is directly related to the increased costs the Exchange incurs in
providing and maintaining those additional connections. The proposed
tiered pricing structure should also enable the Exchange to better
monitor and provide access to the Exchange's network to ensure
sufficient capacity and headroom in the System.
    The Exchange believes that the proposal to move to a tiered-pricing
structure for its 10Gb ULL connections is reasonable, equitably
allocated and not unfairly discriminatory because the majority of
Members and non-Members that purchase 10Gb ULL connections will either
save money or pay the same amount after the tiered-pricing structure is
implemented. After the effective date of the First Proposed Rule Change
on August 1, 2021, approximately 80% of the firms that purchased at
least one 10Gb ULL connection experienced a decrease in their monthly
connectivity fees while only approximately 20% of firms experienced an
increase in their monthly connectivity fees as a result of the proposed
tiered-pricing structure when compared to the flat monthly fee
structure. To illustrate, firms that purchase only one 10Gb ULL
connection per month used to pay the flat rate of $10,000 per month for
that one 10Gb ULL connection. Pursuant to the proposed tiered-pricing
structure, these firms now pay $9,000 per month for that same one 10Gb
ULL connection, saving $1,000 per month or $12,000 annually. Further,
firms that purchase two 10Gb ULL connections per month previously paid
a flat rate of $20,000 per month ($10,000 x 2) for those two 10Gb ULL
connections. Pursuant to the proposed tiered-pricing structure, these
firms now pay $18,000 per month ($9,000 x 2) for those two 10Gb ULL
connections, saving $2,000 per month or $24,000 annually.
    To achieve a consistent, premium network performance, the Exchange
must build out and continue to maintain a network that has the capacity
to handle the message rate requirements of not only firms that consume
minimal Exchange connectivity resources, but also those firms that most
heavily consume Exchange connectivity resources, network consumers, and
purchasers of 10Gb ULL connectivity. 10Gb ULL connectivity is not an
unlimited resource as the Exchange needs to purchase additional
equipment to satisfy requests for additional connections. The Exchange
also needs to provide personnel to set up new connections, service
requests related to adding new and/or deleting existing connections,
respond to performance queries from, and to maintain those connections
on behalf of Members and non-Members. Also, those firms that utilize
10Gb ULL connectivity typically generate a disproportionate amount of
messages and order traffic, usually billions per day across the
Exchange. These billions of messages per day consume the Exchange's
resources and significantly contribute to the overall network
connectivity expense for storage and network transport capabilities.
The Exchange also has to purchase additional storage capacity on an
ongoing basis to ensure it has sufficient capacity to store these
messages as part of it surveillance program and to satisfy its record
keeping requirements under the Exchange Act.\49\
---------------------------------------------------------------------------

    \49\ 17 CFR 240.17a-1 (recordkeeping rule for national
securities exchanges, national securities associations, registered
clearing agencies and the Municipal Securities Rulemaking Board).
---------------------------------------------------------------------------

    The Exchange sought to design the proposed tiered-pricing structure
to set the amount of the fees to relate to the number of connections a
firm purchases. The more connections purchased by a firm likely results
in greater expenditure of Exchange resources and increased cost to the
Exchange. With this in mind, the Exchange proposes to decrease the
monthly fees for those firms who connect to the Exchange as part of
their best execution obligations and generally tend to send the least
amount of orders and messages over those connections. The Exchange
notes that firms that primarily route orders seeking best-execution
generally only purchase a limited number of connections. Those firms
also generally send less orders and messages over those connections,
resulting in less strain on Exchange resources. Therefore, the
connectivity costs will likely be lower for these firms based on the
proposed tiered-pricing structure.
    On a similar note, the Exchange proposes to increase the fee for
those firms that purchase more connections resulting in greater
expenditure of Exchange resources and increased cost to the Exchange.
The Exchange notes that these firms that purchase more than two to four
10Gb ULL connections essentially do so for competitive reasons amongst
themselves and choose to utilize numerous connections based on their
business needs and desire to attempt to access the market quicker by
using the connection with the least amount of latency. These firms are
generally engaged in sending liquidity removing orders to the Exchange
and seek to add more connections so they can access resting liquidity
ahead of their competitors. For instance, a Member may have just sent
numerous messages and/or orders over one of their 10Gb ULL connections
that are in queue to be processed. That same Member then seeks to enter
an order to remove liquidity from the Exchange's Book.

That Member may choose to send that order over one or more of their
other 10Gb ULL connections with less message and/or order traffic to
ensure that their liquidity taking order accesses the Exchange quicker
because that connection's queue is shorter. These firms also tend to
frequently add and drop connections mid-month to determine which
connections have the least latency, which results in increased costs to
the Exchange to constantly make changes in the data center.
    The firms that engage in the above-described liquidity removing and
advanced trading strategies typically require multiple connections and,
therefore, generate higher costs by utilizing more of the Exchange's
resources. Those firms may also conduct other latency measurements over
their connections and drop and simultaneously add connections mid-month
based on their own assessment of their performance. This results in
Exchange staff processing such requests, potentially purchasing
additional equipment, and performing the necessary network engineering
to replace those connections in the data center. Therefore, the
Exchange believes it is equitable for these firms to experience
increased connectivity costs based on their disproportionate pull on
Exchange resources to provide the additional connectivity.
    In addition, the proposed tiered-pricing structure is equitable
because it is designed to encourage Members and non-Members to be more
efficient and economical when determining how to connect to the
Exchange. Section 6(b)(5) of the Exchange Act requires the Exchange to
provide access on terms that are not unfairly discriminatory.\50\ As
stated above, 10Gb ULL connectivity is not an unlimited resource and
the Exchange's network is limited in the amount of connections it can
provide. However, the Exchange must accommodate requests for additional
connectivity and access to the Exchange's System to ensure that the
Exchange is able to provide access on non-discriminatory terms and
ensure sufficient capacity and headroom in the System. To accommodate
requests for additional connectivity on top of current network capacity
constraints, requires that the Exchange purchase additional equipment
to satisfy these requests. The Exchange also needs to provide personnel
to set up new connections and to maintain those connections on behalf
of Members and non-Members. The proposed tiered-pricing structure is
equitable because it is designed to encourage Members and non-Members
to be more efficient and economical in selecting the amount of
connectivity they request while balancing that against the Exchange's
increased expenses when expanding its network to accommodate additional
connectivity.
---------------------------------------------------------------------------

    \50\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

The Proposed Fees Are Reasonable When Compared to the Fees of Other
Options Exchanges With Similar Market Share
    The Exchange does not have visibility into other equities
exchanges' costs to provide connectivity or their fee markup over those
costs, and therefore cannot use other exchange's connectivity fees as a
benchmark to determine a reasonable markup over the costs of providing
connectivity. Nevertheless, the Exchange believes the other exchange's
connectivity fees are a useful example of alternative approaches to
providing and charging for connectivity. To that end, the Exchange
believes the proposed tiered-pricing structure for 10Gb ULL connections
is reasonable because the proposed highest tier is still less than fees
charged for similar connectivity provided by other options exchanges
with comparable market shares. For example, NASDAQ (equity options
market share of 8.88% as of November 26, 2021 for the month of
November) \51\ charges a monthly fee of $10,000 per 10Gb fiber
connection and $15,000 per 10Gb Ultra fiber connection.\52\ The highest
tier of the Exchange's proposed fee structure for a 10Gb ULL connection
is $2,000 per month less than NASDAQ and, unlike NASDAQ, the Exchange
does not charge installation fees. The Exchange notes that the same
connectivity fees described above for NASDAQ also apply to its
affiliates, ISE \53\ (equity options market share of 7.96% as of
November 26, 2021 for the month of November) \54\ and PHLX (equity
options market share of 9.31% as of November 26, 2021 for the month of
November).\55\ Amex (equity options market share of 5.05% as of
November 26, 2021 for the month of November) \56\ charges $15,000 per
connection initially plus $22,000 monthly per 10Gb LX LCN circuit
connection.\57\ Again, the highest tier of the Exchange's proposed fee
structure for a 10Gb ULL connection is $9,000 per month lower than the
Amex connectivity fee after the first month.
---------------------------------------------------------------------------

    \51\ See ``The market at a glance,'' available at https://www.miaxoptions.com/ (last visited November 26, 2021).
    \52\ See NASDAQ Rules, General 8: Connectivity, Section 1. Co-
Location Services.
    \53\ See ISE Rules, General 8: Connectivity.
    \54\ See supra note 51.
    \55\ See id. See also PHLX Rules, General 8: Connectivity.
    \56\ See supra note 51.
    \57\ See Amex Fee Schedule, Section IV.
---------------------------------------------------------------------------

    In the each of the above cases, the Exchange's highest tier in the
proposed tiered-pricing structure is significantly lower than that of
competing options exchanges with similar market share. Despite
proposing lower or similar fees to that of competing options exchanges
with similar market share, the Exchange believes that it provides a
premium network experience to its Members and non-Members via a highly
deterministic System, enhanced network monitoring and customer
reporting, and a superior network infrastructure than markets with
higher market shares and more expensive connectivity alternatives. Each
of the connectivity rates in place at competing options exchanges were
filed with the Commission for immediate effectiveness and remain in
place today.
    The Exchange further believes that the Proposed Access Fees are
reasonable, equitably allocated and not unfairly discriminatory
because, for one 10Gb ULL connection, the Exchange provides each Member
or non-Member access to all twelve (12) matching engines on MIAX Pearl
and a vast majority choose to connect to all twelve (12) matching
engines. The Exchange believes that other exchanges require firms to
connect to multiple matching engines.\58\
---------------------------------------------------------------------------

    \58\ See Specialized Quote Interface Specification, Nasdaq PHLX,
Nasdaq Options Market, Nasdaq BX Options, Version 6.5a, Section 2,
Architecture (revised August 16, 2019), available at http://www.nasdaqtrader.com/content/technicalsupport/specifications/TradingProducts/SQF6.5a-2019-Aug.pdf. The Exchange notes that it is
unclear whether the NASDAQ exchanges include connectivity to each
matching engine for the single fee or charge per connection, per
matching engine. See also NYSE Technology FAQ and Best Practices:
Options, Section 5.1 (How many matching engines are used by each
exchange?) (September 2020). The Exchange notes that NYSE provides a
link to an Excel file detailing the number of matching engines per
options exchange, with Arca and Amex having 19 and 17 matching
engines, respectively.
---------------------------------------------------------------------------

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.
    With respect to intra-market competition, the Exchange does not
believe that the proposed rule change would place certain market
participants at the Exchange at a relative disadvantage compared to
other market participants or affect the ability of such market
participants to compete. As stated above, the Exchange does not

believe its proposed pricing will impose a barrier to entry to smaller
participants and notes that its proposed connectivity pricing structure
for its 10Gb ULL connections is associated with relative usage of the
various market participants. Further, the majority of firms that
purchase 10Gb ULL connections may either save money or pay the same
amount after the tiered-pricing structure is implemented. While total
cost may be increased for market participants with larger capacity
needs or for business/technical preferences, such options provide far
more capacity and are purchased by those that consume more resources
from the network. Accordingly, the proposed tiered-pricing structure
does not favor certain categories of market participants in a manner
that would impose an undue burden on competition; rather, the
allocation reflects the network resources consumed by the various usage
of market participants--lowest bandwidth consuming members pay the
least, and highest bandwidth consuming members pays the most,
particularly since higher bandwidth consumption translates to higher
costs to the Exchange.
    The Exchange also does not believe that the proposed rule change
will result in any burden on inter-market competition that is not
necessary or appropriate in furtherance of the purposes of the Act. As
discussed above, options market participants are not forced to connect
to all options exchanges. The Exchange operates in a highly competitive
environment, and as discussed above, its ability to price access and
connectivity is constrained by competition among exchanges and third
parties. There are other options markets of which market participants
may connect to trade options. There is also a possible range of
alternative strategies, including routing to the exchange through
another participant or market center or accessing the Exchange
indirectly. For example, there are 15 other U.S. options exchanges,
which the Exchange must consider in its pricing discipline in order to
compete for market participants. In this competitive environment,
market participants are free to choose which competing exchange or
reseller to use to satisfy their business needs. As a result, the
Exchange believes this proposed rule change permits fair competition
among national securities exchanges. Accordingly, the Exchange does not
believe its proposed fee changes impose any burden on competition that
is not necessary or appropriate in furtherance of the purposes of the
Act.

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

    As described above, the Exchange received one comment letter on the
First Proposed Rule Change and four comment letters on the Second
Proposed Rule Change.\59\ The Exchange now responds to the comment
letters in this filing.
---------------------------------------------------------------------------

    \59\ See supra note 9.
---------------------------------------------------------------------------

HMA Letter
    The HMA Letter does not raise specific issues with the First or
Second Proposed Rule Changes. Instead the HMA Letter is generally
critical of the exchange fee filing process contained in Section
19(b)(3)(A)(ii) of the Act,\60\ and Rule 19b-4(f)(2) thereunder,\61\
and other exchanges' fee filings in recent years. The HMA Letter,
however, applauds the level of disclosure the Exchange included in the
First and Second Proposed Rule Changes and was supportive of the
efforts made by the Exchange and its affiliates to provide transparency
and justify their proposed fees. The HMA Letter specifically notes
that:
---------------------------------------------------------------------------

    \60\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \61\ 17 CFR 240.19b-4.

    MIAX has repeatedly filed to change its connectivity fees in a
way that will materially lower costs for many users, while
increasing the costs for some of its heaviest of users. These
filings have been withdrawn and repeatedly refiled. Each time,
however, the filings contain significantly greater information about
who is impacted and how than other filings that have been permitted
to take effect without suspension. For example, MIAX detailed the
associated projected revenues generated from the connectivity fees
by user class, again in a clear attempt to comply with the SRO Fee
Filing Guidance.\62\
---------------------------------------------------------------------------

    \62\ See HMA Letter, supra note 9.

    As the HMA Letter notes, the Exchange refiled its same fee
proposals to include significantly greater information about who is
impacted and how, primarily at the request of the Commission Staff and
in response to comments. The Exchange is again refiling its proposal to
include more information surrounding the proposed fees and to respond
to commenters.
SIG Letter 2
    SIG Letter 2 argues that the Exchange, in withdrawing the First
Proposed Rule Change and refiling the Second Proposed Rule Change,
``improperly circumvent[ed] the procedural protections embedded in
Exchange Act Section 19(b)(3)(C), and subvert[ed] the balance of
interests upheld therein.'' \63\ SIG's assertion that the Exchange's
entire reason for withdrawing and refiling was to subvert the
protections of the Exchange Act are entirely without merit. The
Exchange withdrew the First Proposed Rule Change and replaced it with
the Second Proposed Rule Change in good faith to provide additional
justification and explanation for the proposed fee changes and did so
in compliance with the Exchange Act. The same is true in this filing,
where the Exchange withdrew the Second Proposed Rule Change and
submitted this filing to provide additional justification and
explanation for the proposed fee changes and directly responds to
certain points raised in SIG Letters 1, 2, and 3, as well as the SIFMA
Letter submitted on the First and Second Proposed Rule Changes.
---------------------------------------------------------------------------

    \63\ See SIG Letter 2, supra note 9.
---------------------------------------------------------------------------

    As SIG well knows, exchanges are able withdraw and refile various
proposals (including fee changes and other rule changes) with the
Commission for a multitude of reasons, not the least of which is to
address feedback and comments from market participants and Commission
Staff. The Exchange is well within the bounds of the Act and the rules
and regulations thereunder to withdraw a proposed rule change and
replace it with a new proposed rule change in good faith and to enhance
the filing to ensure it complies with the requirements of the Act.
SIG Letters 1 and 3
    As an initial matter, SIG Letter 1 cites Rule 700(b)(3) of the
Commission's Rules of Fair Practice which places ``the burden to
demonstrate that a proposed rule change is consistent with the Act on
the self-regulatory organization that proposed the rule change'' and
states that a ``mere assertion that the proposed rule change is
consistent with those requirements . . . is not sufficient.'' \64\ SIG
Letter 1's assertion that the Exchange has not met this burden is
without merit, especially considering the overwhelming amounts of
revenue and cost information the Exchange included in the First and
Second Proposed Rule Changes and this filing.
---------------------------------------------------------------------------

    \64\ 17 CFR 201.700(b)(3).
---------------------------------------------------------------------------

    Until recently, the Exchange operated at a net annual loss since it
launched operations in 2017.\65\ As stated above, the Exchange believes
that exchanges in setting fees of all types should meet very high
standards of transparency to demonstrate why each new fee or fee
increase meets the requirements of the Act that fees be reasonable,
equitably allocated, not unfairly discriminatory,

and not create an undue burden on competition among market
participants. The Exchange believes this high standard is especially
important when an exchange imposes various access fees for market
participants to access an exchange's marketplace. The Exchange believes
it has achieved this standard in this filing and in the First Proposed
Rule Change, Second Proposed Rule Change. Similar justifications for
the proposed fee change included in the First and Second Proposed Rule
Changes, but also in this filing, were previously included in similar
fee changes filed by the Exchange and its affiliates, MIAX Emerald and
MIAX, and SIG did not submit a comment letter on those filings.\66\
Those filings were not suspended by the Commission and continue to
remain in effect. The justification included in each of the prior
filings was the result of numerous withdrawals and re-filings of the
proposals to address comments received from Commission Staff over many
months. The Exchange and its affiliates have worked diligently with
Commission Staff on ensuring the justification included in past fee
filings fully support an assertion that those fee changes are
consistent with the Act.\67\ The Exchange leveraged its past work with
Commission Staff to ensure the justification provided herein and in the
First and Second Proposed Rule Changes include the same level of detail
(or more) as the prior fee changes that survived Commission scrutiny.
The Exchange's detailed disclosures in fee filings have also been
applauded by one industry group which noted, ``[the Exchange's] filings
contain significantly greater information about who is impacted and how
than other filings that have been permitted to take effect without
suspension.'' \68\ That same commenter also noted their ``worry that
the Commission's process for reviewing and evaluating exchange filings
may be inconsistently applied.'' \69\
---------------------------------------------------------------------------

    \65\ See supra note 33.
    \66\ See Securities Exchange Act Release Nos. 91858 (May 12,
2021), 86 FR 26967 (May 18, 2021) (SR-PEARL-2021-23) (Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change to
Amend the MIAX Pearl Fee Schedule to Remove the Cap on the Number of
Additional Limited Service Ports Available to Market Makers); 91460
(April 2, 2021), 86 FR 18349 (April 8, 2021) (SR-EMERALD-2021-11)
(Notice of Filing and Immediate Effectiveness of a Proposed Rule
Change To Amend Its Fee Schedule To Adopt Port Fees, Increase
Certain Network Connectivity Fees, and Increase the Number of
Additional Limited Service MIAX Emerald Express Interface Ports
Available to Market Makers); and 91857 (May 12, 2021), 86 FR 26973
(May 18, 2021) (SR-MIAX-2021-19) (Notice of Filing and Immediate
Effectiveness of a Proposed Rule Change To Amend Its Fee Schedule To
Remove the Cap on the Number of Additional Limited Service Ports
Available to Market Makers).
    \67\ See, e.g., Securities Exchange Act Release No. 90196
(October 15, 2020), 85 FR 67064 (October 21, 2020) (SR-EMERALD-2020-
11) (Notice of Filing and Immediate Effectiveness of a Proposed Rule
Change To Amend Its Fee Schedule To Adopt One-Time Membership
Application Fees and Monthly Trading Permit Fees). See Securities
Exchange Act Release Nos. 90601 (December 8, 2020), 85 FR 80864
(December 14, 2020) (SR-EMERALD-2020-18) (re-filing with more detail
added in response to Commission Staff's feedback and after
withdrawing SR-EMERALD-2020-11); and 91033 (February 1, 2021), 86 FR
8455 (February 5, 2021) (SR-EMERALD-2021-03) (re-filing with more
detail added in response to Commission Staff's feedback and after
withdrawing SR-EMERALD-2020-18). The Exchange initially filed a
proposal to remove the cap on the number of additional Limited
Service MEO Ports available to Members on April 9, 2021. See SR-
PEARL-2021-17. On April 22, 2021, the Exchange withdrew SR-PEARL-
2021-17 and refiled that proposal (without increasing the actual fee
amounts) to provide further clarification regarding the Exchange's
revenues, costs, and profitability any time more Limited Service MEO
Ports become available, in general, (including information regarding
the Exchange's methodology for determining the costs and revenues
for additional Limited Service MEO Ports). See SR-PEARL-2021-20. On
May 3, 2021, the Exchange withdrew SR-PEARL-2021-20 and refiled that
proposal to further clarify its cost methodology. See SR-PEARL-2021-
22. On May 10, 2021, the Exchange withdrew SR-PEARL-2021-22 and
refiled that proposal as SR-PEARL-2021-23. See Securities Exchange
Act Release No. 91858 (May 12, 2021), 86 FR 26967 (May 18, 2021)
(SR-PEARL-2021-23).
    \68\ See HMA Letter, supra note 9.
    \69\ Id. (providing examples where non-transaction fee filings
by other exchanges have been permitted to remain effective and not
suspended by the Commission despite less disclosure and
justification).
---------------------------------------------------------------------------

    Therefore, a finding by the Commission that the Exchange has not
met its burden to show that the proposed fee change is consistent with
the Act would be different than the Commission's treatment of similar
past filings, would create further ambiguity regarding the standards
exchange fee filings should satisfy, and is not warranted here.
    In addition, the arguments in SIG Letter 1 do not support their
claim that the Exchange has not met its burden to show the proposed
rule change is consistent with the Act. Prior to, and after submitting
the First Proposed Rule Change, the Exchange solicited feedback from
its Members, including SIG. SIG relayed their concerns regarding the
proposed change. The Exchange then sought to work with SIG to address
their concerns and gain a better understanding of the access/
connectivity/quoting infrastructure of other exchanges. In response,
SIG provided no substantive suggestions on how to amend the First
Proposed Rule Change to address their concerns and instead chose to
submit three comment letters. One could argue that SIG is using the
comment letter process not to raise legitimate regulatory concerns
regarding the proposal, but to inhibit or delay proposed fee changes by
the Exchange.
    Nonetheless, the Exchange has enhanced its cost and revenue
analysis and data in this Third Proposed Rule Change to further justify
that the Proposed Access Fees are reasonable in accordance with the
Commission Staff's Guidance. Among other things, these enhancements
include providing baseline information in the form of data from the
month before the Proposed Access Fees became effective.
    The Exchange now responds to SIG remaining claims below. SIG Letter
3 first summarizes its arguments made in SIG Letters 1 and 2 and
incorporates those arguments by reference. The Exchange responded to
the arguments in SIG Letter 2 above. SIG Letter 3 incorporates the
following arguments from SIG Letter 1, which the Exchange will first
respond to in turn, below:

(1) the prospect that a member may withdraw from the Exchanges if a
fee is too costly is not a basis for asserting that the fee is
reasonable; (2) profit margin comparisons do not support the
Exchanges' claims that they will not realize a supracompetitive
profit, the Exchanges' respective profit margins of 30% (for MIAX
and Pearl) and 51% (for Emerald) in relation to connectivity fees
are high in any event, and comparisons to competing exchanges'
overall operating profit margins are an inapt ``apples-to-oranges''
comparison; (3) the Exchanges provide no support for their claim
that their proposed tiered pricing structure is needed to encourage
efficiency in connectivity usage; (4) the Exchanges provided no
support for their claim that the tiered pricing structure allows
them to better monitor connectivity usage, nor that this is an
appropriate basis for the pricing structure in any event; (5) the
Exchanges' claim that firms who purchase more 10Gb ULL lines
generate ``higher'' costs is misleading, and they offered no support
for this claim in any event; (6) no other exchange has tiered
connectivity pricing; (7) the recoupment of investment for exchange
infrastructure has no supporting nexus with the claim that the
proposed fees are reasonable, equitably allocated, and not unfairly
discriminatory; and (8) the recoupment of investment claim belies
the Exchanges' claim of encouraging efficiency in connectivity
usage.\70\
---------------------------------------------------------------------------

    \70\ See SIG Letter 3, supra note 9.
---------------------------------------------------------------------------

The Exchange's Examples of Members Terminating Their Exchange Access
Shows That Members Have Choice Whether To Connect to an Exchange Based
on Fees
    SIG asserts that ``the prospect that a member may withdraw from the
Exchanges if a fee is too costly is not a basis for asserting that the
fee is reasonable.'' \71\ SIG misinterprets the

Exchange's argument here. The Exchange provided the examples of firms
terminating access to certain markets due to fees to support its
assertion that firms, including market makers, are not required to
connect to all markets and may drop access if fees become too costly
for their business models and alternative or substitute forms of
connectivity are available to those firms who choose to terminate
access. The Commission Staff Guidance also provides that ``[a]
statement that substitute products or services are available to market
participants in the relevant market (e.g., equities or options) can
demonstrate competitive forces if supported by evidence that substitute
products or services exist.'' \72\ Nonetheless, the Third Proposed Rule
Change no longer makes this assertion as a basis for the proposed fee
change and, therefore, the Exchange believes it is not necessary to
respond to this portion of SIG Letters 1 and 3.
---------------------------------------------------------------------------

    \71\ Id.
    \72\ See Guidance, supra note 20.
---------------------------------------------------------------------------

The Proposed Fees Will Not Result in Excessive Pricing or Supra-
Competitive Profit
    Next, SIG asserts that the Exchange's ``profit margin comparisons
do not support the Exchange's claims that they will not realize a
supracompetitive profit,'' that ``the Exchanges' respective profit
margins of 30% (for MIAX and Pearl) and 51% (for Emerald) in relation
to connectivity fees are high in any event,'' and ``comparisons to
competing exchanges' overall operating profit margins are an inapt
`apples-to-oranges' comparison.''
    The Exchange has provided ample data that the proposed fees would
not result in excessive pricing or a supra-competitive profit. In this
Third Proposed Rule Change, the Exchange no longer utilizes a
comparison of its profit margin to that of other options exchanges as a
basis that the Proposed Access Fees are reasonable. Rather, the
Exchange has enhanced its cost and revenue analysis and data in this
Third Proposed Rule Change to further justify that the Proposed Access
Fees are reasonable in accordance with the Commission Staff's Guidance.
Therefore, the Exchange believes it is no longer necessary to respond
to this portion of SIG Letters 1 and 3.
The Proposed Tiered Pricing Structure Is Not Unfairly Discriminatory
    SIG challenges the proposed fees by arguing that ``the Exchange[ ]
provide[s] no support for [its] claim that [the] proposed tiered
pricing structure is needed to encourage efficiency in connectivity
usage and the Exchange[] provided no support for [the] claim that the
tiered pricing structure allows them to better monitor connectivity
usage, nor that this is an appropriate basis for the pricing structure
in any event.'' The Exchange provided additional justification to
support that the Proposed Access Fees are equitable and not unfairly
discriminatory above in response to SIG's assertions.
Firms That Purchase More 10Gb ULL Generate Higher Exchange Costs
    SIG argues that ``the Exchanges' claim that firms who purchase more
10Gb ULL lines generate `higher' costs is misleading,'' and that the
Exchange has ``offered no support for this claim in any event.'' As
described above, the Exchange sought to design the proposed tiered-
pricing structure to set the amount of the fees to relate to the number
of connections a firm purchases and the Exchange believes it provided
ample justification for the proposed tiered-pricing structure in the
First and Second Proposed Rule Changes. Nonetheless, the Exchange
provides additional justification to support that the Proposed Access
Fees are equitable and not unfairly discriminatory above in response to
SIG's assertions.
The Proposed Tiered-Pricing Structure for 10Gb ULL Connectivity Will
Provide Cost Savings for the Majority of Exchange Members
    The SIG Letter incorrectly asserts that no other exchange has
tiered connectivity pricing. Numerous other exchanges provide tiered
fee structures for various other types of access to their platforms,
including trading permits and ports.\73\ The Exchange provided adequate
evidence that most firms would incur cost savings under the Proposed
Access Fees in the First and Second Proposed Rule Changes and this
filing. Nonetheless, the Exchange believes it provided additional
justification to support that the Proposed Access Fees are equitable
and not unfairly discriminatory above in response to SIG's assertions.
---------------------------------------------------------------------------

    \73\ See Cboe Exchange, Inc. Fee Schedule, Logical Connectivity
Fees ($750 per port per month for the first 5 BOE/FIX Logical Ports
and $800 per port per month for each port over 5; $1,500 per port
per month for the first 5 BOE Bulk Logical Ports, $2,500 per port
per month for ports 6-30, and $3,000 per port per month for each
port over 30); Cboe BXZ Exchange, Inc. Options Fee Schedule, Options
Logical Port Fees, Ports with Bulk Quoting Capabilities ($1,500 per
port per month for the first and second ports, $2,500 per port per
month for three or more); Nasdaq Stock Market LLC, Options 7,
Pricing Schedule, Section 3 ($1,500 per port per month for the first
5 SQF ports; $1,000 per port per month for SQF ports 15-20; and $500
per port per month for all SQF ports over 21); NYSE American Options
Fee Schedule, Section V.A., Port Fees and NYSE Arca Options Fee
Schedule, Port Fees (both charging $450 per port for order/quote
entry ports 1-40 and $150 per port for ports 41 and greater).
---------------------------------------------------------------------------

Recoupment of Exchange Infrastructure Costs
    Nowhere in this proposal or in the First Proposed Rule Change did
the Exchange assert that it benefits competition to allow a new
exchange entrant to recoup their infrastructure costs. Rather, the
Exchange asserts above that its ``proposed fees are reasonable,
equitably allocated and not unfairly discriminatory because the
Exchange, and its affiliates, are still recouping the initial
expenditures from building out their systems while the legacy exchanges
have already paid for and built their systems.'' The Exchange no longer
makes this assertion in this filing and, therefore, does not believe is
it necessary to respond to SIG's assertion here.
SIFMA Letter
    In sum, the SIFMA Letter asserts that the Exchange has failed to
demonstrate that the Proposed Access Fees are reasonable for three
reasons:

    (i) ``The Exchanges' ``platform competition'' argument that
competition for order flow constrains pricing for market data or
other products and services exclusively offered by an exchange does
not demonstrate that the fees are reasonable.''
    (ii) ``. . . order flow competition alone between exchanges does
not demonstrate that the fees for the products and services subject
to the Proposal are reasonable.''
    (iii) ``the Exchanges' argument that the products and services
subject to the Proposals are optional does not reflect marketplace
reality, nor does it demonstrate that the proposed fees are
reasonable.''

    The Exchange responds to each of SIFMA's challenges in turn below.
The Exchange Never Set Forth a ``Platform Competition'' Argument
    The SIFMA Letter asserts that the Exchange's ``platform
competition'' argument that competition for order flow constrains
pricing for market data or other products and services exclusively
offered by an exchange does not demonstrate that the fees are
reasonable.'' \74\ The Exchange does not believe it is necessary to
respond to this assertion because it has never set forth a ``platform
competition'' \75\ argument to

justify the Proposed Access Fees in the First or Second Proposed Rule
Change nor does it do so in this filing.
---------------------------------------------------------------------------

    \74\ See SIFMA Letter, supra note 9.
    \75\ Pursuant to the Guidance, ``platform theory generally
asserts that when a business offers facilities that bring together
two or more distinct types of customers, it is the overall return of
the platform, rather than the return of any particular fees charged
to a type of customer, that should be used to assess the
competitiveness of the platform's market.'' See Guidance, supra note
20.
---------------------------------------------------------------------------

The Exchange Is Not Arguing That Order Flow Competition Alone
Demonstrates That the Proposed Fees Are Reasonable
    The SIFMA Letter asserts that ``order flow competition alone
between exchanges does not demonstrate that the fees for the products
and services subject to the Proposal are reasonable.'' \76\ The
Exchange never directly asserted in the First or Second Proposed Rule
Changes, nor does it do so in this filing, that order flow competition,
alone, demonstrated that the Proposed Access Fees are reasonable and
has removed any language that could imply this argument from this
filing.
---------------------------------------------------------------------------

    \76\ See SIFMA Letter, supra note 9.
---------------------------------------------------------------------------

Other SIFMA Assertions
    SIFMA's also challenges or asserts: (i) The substitutability or
optionality of 10Gb ULL connections, (ii) whether the Exchange has
shown that the fees are equitable and non-discriminatory; (iii) that a
tiered pricing structure will impose higher cost on all market
participants; (iv) that a tiered pricing structure will encourage
market participants to be more economical with the usage; (v) greater
number of connections use greater Exchange resources; and (vi) that the
Exchange has not provided extensive information regarding its cost data
and how it determined it cost analysis. The Exchange believes that
these assertions by SIFMA basically echo assertions made in SIG Letters
1 and 3 and that it provided a response to these assertions under its
response to SIG above or in provided enhanced transparency and
justification in this filing.

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,\77\ and Rule 19b-4(f)(2) \78\ thereunder.
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 whether
the proposed rule should be approved or disapproved.
---------------------------------------------------------------------------

    \77\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \78\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

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 protected]. Please include
File Number SR-PEARL-2021-57 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-PEARL-2021-57. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (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 website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-PEARL-2021-57 and should be submitted on
or before January 10, 2022.
---------------------------------------------------------------------------

    \79\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\79\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-27423 Filed 12-17-21; 8:45 am]
BILLING CODE 8011-01-P