Notice2021-25747
Joint Industry Plan; Notice of Filing of the Fifty-Second Amendment to the Joint Self-Regulatory Organization Plan Governing the Collection, Consolidation and Dissemination of Quotation and Transaction Information for Nasdaq-Listed Securities Traded on Exchanges on an Unlisted Trading Privileges Basis
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 26, 2021
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 86 Issue 225 (Friday, November 26, 2021)</title>
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[Federal Register Volume 86, Number 225 (Friday, November 26, 2021)]
[Notices]
[Pages 67562-67568]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-25747]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-93618; File No. S7-24-89]
Joint Industry Plan; Notice of Filing of the Fifty-Second
Amendment to the Joint Self-Regulatory Organization Plan Governing the
Collection, Consolidation and Dissemination of Quotation and
Transaction Information for Nasdaq-Listed Securities Traded on
Exchanges on an Unlisted Trading Privileges Basis
November 19, 2021.
Pursuant to Section 11A of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 608 thereunder,\2\ notice is hereby given that
on November 5, 2021,\3\ certain participants in the Joint Self-
Regulatory Organization Plan Governing the Collection, Consolidation
and Dissemination of Quotation and Transaction Information for Nasdaq-
Listed Securities Traded on Exchanges on an Unlisted Trading Privileges
Basis (``UTP Plan'' or ``Plan'') filed with the Securities and Exchange
Commission (``Commission'') a proposal to amend the UTP Plan.\4\ The
amendment represents the Fifty-Second Amendment to the Plan
(``Amendment''). Under the Amendment, the Participants propose to amend
the Plan to adopt fees for the receipt of the expanded content of
consolidated market data pursuant to the Commission's Market Data
Infrastructure Rules (``MDI Rules'').\5\ The Participants have
submitted a separate amendment to implement the non-fee-related aspects
of the MDI Rules.
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\1\ 15 U.S.C. 78k-1.
\2\ 17 CFR 242.608.
\3\ See Letter from Robert Books, Chair, UTP Operating
Committee, to Vanessa Countryman, Secretary, Commission (Nov. 5,
2021).
\4\ The amendment was approved and executed by more than the
required two-thirds of the self-regulatory organizations (``SROs'')
that are participants of the UTP Plan. The participants that
approved and executed the amendment (the ``Participants'') are: Cboe
BYX Exchange, Inc., Cboe BZX Exchange, Inc., Cboe EDGA Exchange,
Inc., Cboe EDGX Exchange, Inc., Cboe Exchange, Inc., Nasdaq ISE,
LLC, Nasdaq PHLX, Inc., The Nasdaq Stock Market LLC, New York Stock
Exchange LLC, NYSE American LLC, NYSE Arca, Inc., NYSE Chicago,
Inc., and NYSE National, Inc.. The other SROs that are participants
in the UTP Plan are: Financial Industry Regulatory Authority, Inc.,
The Investors' Exchange LLC, Long-Term Stock Exchange, Inc., MEMX
LLC, MIAX PEARL, LLC, and Nasdaq BX, Inc.. See infra Section I. G.
\5\ Securities Exchange Act Release No. 90610, 86 FR 18596
(April 9, 2021) (File No. S7-03-20) (``MDI Rules Release'').
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The proposed Amendment has been filed by the Participants pursuant
to Rule 608(b)(2) under Regulation NMS.\6\ The Commission is publishing
this notice to solicit comments from interested persons on the proposed
Amendment. Set forth in Sections I and II, which were prepared and
submitted to the Commission by the Participants, is the statement of
the purpose and summary of the Amendment, along with information
pursuant to Rules 608(a) and 601(a) under the Act. A copy of the Plan
marked to show the proposed Amendment is Attachment A to this notice.
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\6\ 17 CFR 242.608(b)(2).
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I. Rule 608(a)
A. Purpose of the Amendments
On December 9, 2020, the Commission adopted amendments to
Regulation NMS. The effective date of these final rules was June 8,
2021. As specified in the MDI Rules Release, the Participants must
submit updated fees regarding the receipt and use of the expanded
content of consolidated market data by November 5, 2021.\7\ Consistent
with that requirement, the Participants are submitting the above-
captioned amendments to the UTP Plan to propose such fees.\8\
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\7\ MDI Rules Release at 18699.
\8\ As the Commission is aware, some of the SROs (the
``Petitioners'') have challenged the MDI Rules Release in the D.C.
Circuit. Certain of the Petitioners have joined in this submission,
including the statement that the Plan amendments comply with the MDI
Rules Release, solely to satisfy the requirements of the MDI Rules
Release and Rule 608. Nothing in this submission should be construed
as abandoning any arguments asserted in the D.C. Circuit, as an
agreement by Petitioners with any analysis or conclusions set forth
in the MDI Rules Release, or as a concession by Petitioners
regarding the legality of the MDI Rules Release. Petitioners reserve
all rights in connection with their pending challenge of the MDI
Rules Release, including inter alia, the right to withdraw the
proposed amendment or assert that any action relating to the
proposed amendment has been rendered null and void, depending on the
outcome of the pending challenge. Petitioners further reserve all
rights with respect to this submission, including inter alia, the
right to assert legal challenges regarding the Commission's
disposition of this submission.
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The Participants are proposing a fee structure for the following
three categories of data, which collectively comprise the amended
definition of core data, as that term is defined in amended Rule
600(b)(21) of Regulation NMS: \9\
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\9\ 17 CFR 242.600(b)(26) (``Rule 600'').
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(1) Level 1 Service, which the Participants propose would include
Top of Book Quotations, Last Sale Price Information, and odd-lot
information (as defined in amended Rule 600(b)(59)). Plan fees to
subscribers currently are for Top of Book Quotations and Last Sale
Price Information, as well as what is now defined as administrative
data (as defined in amended Rule 600(b)(2)), regulatory data (as
defined in amended Rule 600(b)(78)), and self-regulatory
[[Page 67563]]
organization-specific program data (as defined in amended Rule
600(b)(85)). The Participants propose that Level 1 Service would
continue to include all information that subscribers receive for
current fees and add odd-lot information;
(2) Depth of book data (as defined in amended Rule 600(b)(26)); and
(3) Auction information (as defined in amended Rule 600(b)(5)).\10\
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\10\ The Participants propose to price subsets of data that
comprise core data separately so that data subscriber users have
flexibility in how much consolidated market data content they wish
to purchase. For example, the Participants understand that certain
data subscribers may not wish to add depth of book data or auction
information, or may want to add only depth of book information, but
not auction information. Accordingly, Participants are proposing to
price subsets of data to provide flexibility to data subscribers.
However, the Participants expect that Competing Consolidators would
be purchase all core data.
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Professional and Nonprofessional Fee Structure
For each of the three categories of data described above, the
Participants are proposing a Professional Subscriber Charge and a
Nonprofessional Subscriber Charge.
With respect to Level 1 Service, the Participants are not proposing
to change the Professional Subscriber and Nonprofessional Subscriber
fees currently set forth in the UTP Plan. Access to odd-lot information
would be made available to Level 1 Service Professional and
Nonprofessional Subscribers at no additional charge.
With respect to depth of book data, Professional Subscribers would
pay $99.00 per device per month and Nonprofessional Subscribers would
pay $4.00 per subscriber per device per month. The Participants are not
proposing per-quote packet charges or enterprise rates for either
Professional Subscribers or Nonprofessional Subscribers use of depth of
book data at this time.
Finally, with respect to auction information, both Professional
Subscribers and Nonprofessional Subscribers would pay $10.00 per device
per month.
Non-Display Use Fees
The Participants are proposing Non-Display Use Fees relating to the
three categories of data described above: (1) Level 1 Service; (2)
depth of book data; and (3) auction information.
With respect to Level 1 Service, the Participants are not proposing
to change the Non-Display Use fees currently set forth in the UTP Plan.
Access to odd-lot information would be made available to Level 1
Service subscribers at no additional charge.
With respect to depth of book data, Subscribers would pay Non-
Display Use Fees of $12,477.00 per month for each category of Non-
Display Use.
With respect to auction information, Subscribers would pay Non-
Display Use fees of $1,248.00 per month for each category of Non-
Display Use. As is the case today, Subscribers would be charged for
each category of use of depth of book data and auction information.
Access Fees
Finally, the Participants are proposing Access Fees regarding the
use of the three categories of data: (1) Level 1 Service; (2) depth of
book data; and (3) auction information.
With respect to Level 1 Service, the Participants are not proposing
to change the Access Fees currently set forth in the UTP Plan. Access
to odd-lot information would be made available to Level 1 Service
subscribers at no additional charge.
With respect to depth of book data, Subscribers would pay a monthly
Access Fee of $9,850.00
With respect to auction information, Subscribers would pay a
monthly Access Fee of $985.00 per Network.
Clarifications Related to Expanded Content
In addition to the above fees, the Participants propose adding
clarifying language regarding the applicability of various fees given
the availability of the expanded market data content.
First, the Participants propose to clarify that the Per Query Fee
is not applicable to the expanded content, and only applies to the
receipt and use of Level 1 Service. Under the current Price List, the
Per Query Fee serves as an alternative fee schedule to the normally
applied Professional and Nonprofessional Subscriber Charges. The
proposed changes are designed to clarify that Per Query Fee is only
available with respect to the use of Level 1 Service, and the fees for
the use of depth of book data and auction information must be
determined pursuant to the Professional and Nonprofessional fees
described above.
Second, the Participants propose to clarify that Level 1 Service
would include Top of Book Quotation Information, Last Sale Price
Information, odd-lot information, administrative data, regulatory data,
and self-regulatory organization program data. This proposed amendment
would use terms defined in amended Rule 600(b) to reflect both current
data made available to data subscribers and the additional odd-lot
information that would be included at no additional charge.
Third, the Participants are proposing to clarify that the existing
Redistribution Fees would be applicable to all three categories of core
data, including any subset thereof. Currently, Redistribution Fees are
charged to any entity that makes last sale information or quotation
information available to any other entity or to any person other than
its employees, irrespective of the means of transmission or access. The
Participants propose to amend this description to make it applicable to
core data, as that term is defined in amended Rule 600(b)(21). The
Participants are not proposing to change the fee level for
Redistribution Fees themselves.
Fourth, the Participants are proposing that the existing
Redistribution Fees would be applicable to Competing Consolidators. In
the MDI Rules approval order, the SEC stated that ``[t]he Commission
believes imposing redistribution fees on data content underlying
consolidated market data that will be disseminated by competing
consolidators would be difficult to reconcile with statutory standards
of being fair and reasonable and not unreasonably discriminatory in the
new decentralized model.'' \11\ The Commission then compared Competing
Consolidators to Self- Aggregators and noted that Self-Aggregators
would not be subject to redistribution fees. The Participants believe
that the comparison between Competing Consolidators and Self-
Aggregators is not appropriate in determining whether a redistribution
fee is not unreasonably discriminatory. The Participants also do not
believe that the Commission's comparison is consistent with current
long-standing practice that redistribution fees are charged to any
entity that distributes data externally.\12\ By definition, a Self-
Aggregator would not be distributing data externally and therefore
would not be subject to such
[[Page 67564]]
fees, which is consistent with current practice that a Subscriber to
consolidated data that only uses data for internal use is not charged a
Redistribution Fee.
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\11\ MDI Rules Release at 18685.
\12\ The current exclusive securities information processor
(``SIP'') is not charged a Redistribution Fee. However, unlike
Competing Consolidators, the processor has been retained by the UTP
Plan to serve as an exclusive SIP, is subject to oversight by both
the UTP Plan and the Commission, and neither pays for the data nor
engages with data subscriber customers. By contrast, under the
Competing Consolidator model, the UTP Plan would have no role in
either oversight of or determining which entities choose to be a
Competing Consolidator, a Competing Consolidator would need to
purchase consolidated market data just as any other vendor would,
and Competing Consolidators would be responsible for competing for
data subscriber clients. Accordingly, Competing Consolidators would
be more akin to vendors than the current exclusive SIPs. The
Participants note that if any entity that is currently an exclusive
SIP chooses to register as a Competing Consolidator, such entity
would be subject to the Redistribution Fee.
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Instead, the more appropriate comparison would be between Competing
Consolidators and downstream vendors, both of which would be selling
consolidated market data directly to market data subscribers. Vendors
are and still would be subject to Redistribution Fees when
redistributing data to market data subscribers. It would be
unreasonably discriminatory for Competing Consolidators, which would be
competing with downstream market data vendors for the same data
subscriber customers, to not be charged a Redistribution Fee for
exactly the same activity. Consequently, the Participants believe that
it would be unreasonably discriminatory and impose a burden on
competition to not charge Competing Consolidators the Redistribution
Fee.\13\
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\13\ The Participants believe it would be more appropriate to
compare Competing Consolidators and Self-Aggregators with respect to
the fees charged for receipt and use of market data from the
Participants and address the fees for the usage of consolidated
market data based on their actual usage, which is consistent with
the statutory requirements of the Act that the data be provided on
terms that are not unreasonably discriminatory. For instance,
Participants have proposed to charge a data access fee to Competing
Consolidators that would be the same fee to Self-Aggregators.
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Third, the UTP Plan fee schedule currently permits the
redistribution of UTP Level 1 Service on a delayed basis for $250.00
per month. The Participants propose adding a statement that depth of
book data and auction information may not be redistributed on a delayed
basis.
Finally, the Participants are proposing to make non-substantive
changes to language in the fee schedules to take into account the
expanded content. For example, the Participants propose updating
various fee descriptions to either add or remove a reference to UTP
Level 1 Service. Additionally, while FINRA OTC Data will not be
provided to Competing Consolidators, it is still being provided to the
UTP Processor for inclusion in the consolidated market data made
available by the UTP Processor. The Participants propose adding
clarifying language to make clear that UTP Level 1 Service obtained
from the Processor will include FINRA OTC Data but will not include
Odd-lot information.
B. Governing or Constituent Documents
Not applicable.
C. Implementation of Amendments
The amendments proposed herein would be implemented to coincide
with the phased implementation of the MDI Rules as required by the
Commission.
D. Development and Implementation Phases
The amendments proposed herein would be implemented to coincide
with the phased implementation of the MDI Rules as required by the
Commission.
E. Analysis of Impact on Competition
The Participants believe that the proposed amendments comply with
the requirements of the MDI Rules, which have been approved by the
Commission.
F. Written Understanding or Agreements Relating to Interpretation of,
or Participation in, Plans
Not applicable.
G. Approval by Sponsors in Accordance With Plan
Section IV.C.2 of the UTP Plan provides that ``[t]he affirmative
vote of two-thirds of the Participants entitled to vote shall be
necessary to constitute the action of the Operating Committee with
respect to the establishment of new fees, the deletion of existing
fees, or increases or reductions in existing fees relating to Quotation
Information and Transaction Reports in Eligible Securities.''
The Participants have executed this Amendment and represent not
less than two-thirds of all of the parties to the UTP Plan. That
satisfies the UTP Plan's Participant-approval requirements.\14\
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\14\ FINRA, IEX, LTSE, MIAX, and MEMX have not joined in the
decision to approve the filing of the proposed amendment, and Nasdaq
BX is also withholding its vote at the time. Additionally, the
Advisory Committee requested that the following statement be
inserted into the filing: The Advisory Committee has actively
participated in the rate setting process with the SROs and has
provided the SROs with opinion and guidance on rate setting
appropriate to the interests of consumers throughout the process.
The Advisors collectively believe that SIP data content fees should
be universally lower to align with the un-coupling of SIP data
content from the SIP exclusive processor, a function to be performed
by Competing Consolidators. The Advisors believe that while their
input was important in the process, the core principle of fees being
fair and reasonable was not achieved.
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H. Description of Operation of Facility Contemplated by the Proposed
Amendment
Not applicable.
I. Terms and Conditions of Access
Not applicable.
J. Method of Determination and Imposition, and Amount of, Fees and
Charges
Fees established for consolidated market data must be fair and
reasonable and not unreasonably discriminatory.\15\ The Commission
expressed that the Operating Committee of the UTP Plan ``should
continue to have an important role in the operation, development, and
regulation of the national market system for the collection,
consolidation, and dissemination of consolidated market data.'' \16\
The Commission further stated that ``the fees for data content
underlying consolidated market data, as now defined, are subject to the
national market system process that has been established,'' and that
the ``Operating Committee(s) have plenty of experience in developing
fees for SIP data.'' \17\
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\15\ 15 U.S.C. 78o(c)(1)(C) and (D) and Rule 603(a)(1) and (2).
\16\ MDI Rules Release at 18682.
\17\ MDI Rules Release at 18683.
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The Operating Committee is bringing this experience to bear to
determine the fees for the new core data elements and is proposing fees
that are fair and reasonable and not unreasonably discriminatory. The
Commission has stated that one way to demonstrate that fees for
consolidated market data are fair and reasonable is to show that they
are reasonably related to costs. However, the Exchange Act does not
require a showing of costs, and historically, the UTP Plan has not
demonstrated that their fees are fair and reasonable on the basis of
cost data.
Moreover, under the decentralized Competing Consolidator model, the
Operating Committee has no knowledge of any of the costs associated
with consolidated market data. Under the current exclusive SIP model,
the Operating Committee (1) specifies the technology that each
Participant must use to provide the SIPs with data, and (2) contracts
directly with a SIP to collect, consolidate, and disseminate
consolidated market data, and therefore has knowledge of a subset of
costs associated with collecting and consolidating market data. By
contrast, under the decentralized Competing Consolidator model, the UTP
Plan no longer has a role in either specifying the technology
associated with exchanges providing data or contracting with a SIP.
Rather, as specified in amended Rule 603(b), each national securities
exchange will be responsible for determining the methods of access to
and format of data necessary to generate consolidated market data.
Moreover, Competing Consolidators will be responsible for connecting to
the
[[Page 67565]]
exchanges to obtain data directly from each exchange, without any
involvement of the Operating Committee. Nor does the Operating
Committee have access to information about how each exchange would
generate the data that they each would be required to disseminate under
amended Rule 603(b). Accordingly, under the decentralized Competing
Consolidator model, the Operating Committee does not have access to any
information about the cost of providing consolidated market data.
In the absence of cost information being available to the Operating
Committee, the Participants believe instead that fees for consolidated
market data are fair and reasonable and not unreasonably discriminatory
if they are related to the value of the data to subscribers. The
Participants believe that the value of depth of book data and auction
information is well-established, as this content has been available to
market participants directly from the exchanges for years, and in some
cases, decades, at prices constrained by direct and platform
competition. Exchanges have filed fees for this data pursuant to the
standards specified in Section 6(b)(5) of the Act.
To determine the value of depth of book data, the Participants
considered a number of methodologies to determine the appropriate level
to set fees for the expanded data content that are based on the current
fees charged for depth of book data by exchanges that have chosen to
charge for their data. In particular, the Participants reviewed (1) an
ISO Trade-Based Model \18\; (2) a Depth to Top-Of-Book Ratio Model
(``Depth-to-TOB Model''); and (3) a Message-Based Model.\19\
Ultimately, the Participants selected a Depth-to-TOB Model to determine
the appropriate fees for the expanded data content.
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\18\ The ISO-Based model analyzed the number of intermarket
sweep orders executing through the NBBO, looking at the number of
ISOs executed in the first five levels of depth as compared to all
ISOs executed.
\19\ The Message-based model looked at the total number of
orders displayable in the first five levels of depth as compared to
all displayable orders.
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In particular, the Participants reviewed the depth to top-of-book
ratios of Professional device rates on Nasdaq (Nasdaq Basic/Nasdaq
TotalView), Cboe (Cboe Full Depth) and NYSE (BQT/NYSE Integrated). In
addition, IEX has recently proposed data access fees for its TOPS and
DEEP data feeds, which are not proposed to be charged on a per
individual basis. The Participants also reviewed the ratio proposed by
IEX between its proposed fees for real-time top of book and depth feeds
(TOPS/DEEP), as set forth below:
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Exchange Product Prop Level 1 Depth Ratio (%)
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Nasdaq........................ Nasdaq Basic/Nasdaq Total View.. $26 $76 292
Cboe.......................... Cboe ONE Summary/Cboe Full Depth 10 100 1000
NYSE.......................... BQT/NYSE Integrated............. 18 70 389
IEX........................... TOPS/DEEP....................... 500 2,500 500
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The Participants noted that utilizing the ratios calculated for
Nasdaq, NYSE, and IEX resulted in an average ratio of 3.94x and
resulted in market data fees the Participants believe are fair and
reasonable.
The Participants also conducted alternative calculations by
including a broader range of products or those products offering more
robust depth fees. These alternative calculations resulted in ratios
greater than 3.94x and were not selected by the Participants. The
Participants believe that the 3.94x ratio represents the difference in
value between top-of-book and five levels of depth that would be
required to be included in consolidated market data under amended Rule
603(b). Because the alternate methodologies, which focused on only the
top five levels of depth, resulted in higher ratios, the Participants
believe that the more conservative 3.94x ratio would be a fair and
reasonable ratio between the proposed fees for depth of book data
required to be included in the consolidated market data and the current
fees for the existing Top of Book Quotation information.
The Participants then applied the 3.94x ratio to the current fees
charged for consolidated market data, as follows:
<bullet> The Participants applied the 3.94x ratio to the current
fees charged to Professional Subscribers taking all three Networks
($75.00). This resulted in the total fee level for depth of book data
for Professional Subscribers equaling $296.00 (i.e., $75.00 x 3.94 =
$295.50, rounded to $296.00). This fee was then split evenly among the
three Networks resulting in a proposed Professional Subscriber fee of
$99.00 per Network.
<bullet> The Participants applied the 3.94x ratio to the current
fees charged for Nonprofessional Subscribers taking all three Networks
($3.00). This resulted in the total fee level for depth of book data
for Nonprofessional Subscribers equaling $12.00 (i.e., $3.00 x 3.94 =
$11.82, rounded to $12.00). This fee was then split evenly among the
three Networks, resulting in a proposed Nonprofessional Subscriber fee
of $4.00 per Network.
<bullet> The Participants applied the 3.94x ratio to the current
fees charged for Non-Display Use for all three Networks ($9,500.00).
This resulted in the total fee level for depth of book data for Non-
Display Use equaling $37,430.00 (i.e., $9,500.00 x 3.94 = $37,430.00).
This fee was then split evenly among the three Networks, resulting in a
proposed Non-Display Use Fee of $12,477.00 per Network (including
rounding).
<bullet> The Participants applied the 3.94x ratio to the current
fees charged for direct Data Access for all three Networks ($7,500.00).
This resulted in the total fee level for depth of book data for Non-
Display Use equaling $29,550.00 (i.e., $7,500.00 x 3.94 = $29,550.00).
This fee was then split evenly among the three Networks (including
Network C), resulting in a proposed Non-Display Use Fee of $9,850.00
per Network.
With respect to the fees for auction information, the Participants
looked to the number of trades that occur during the auction process as
compared to the trading day, and determined that roughly 10% of the
trading volume is concentrated in auctions. Consequently, the
Participants believed that charging a fee that was 10% of the fee
charged for depth of book data was an appropriate proxy for determining
the value of auction information. As a result, the Participants
proposed a $10.00 fee per Network for auction information, which the
Participants believe is fair and reasonable and not unreasonably
discriminatory.
With respect to the fees for Level 1 Service, the Participants
believe that it is fair and reasonable and not unreasonably
discriminatory to include access to odd-lot information at no
additional charge to the current fees, which the Participants are not
proposing to change.
[[Page 67566]]
Finally, as detailed above, the Participants are proposing to
specify that the existing Redistribution Fees would be applicable to
the amended core data, and that such fees would also be applicable to
Competing Consolidators. In the MDI Rules Release, the SEC stated that
``[t]he Commission believes imposing redistribution fees on data
content underlying consolidated market data that will be disseminated
by competing consolidators would be difficult to reconcile with
statutory standards of being fair and reasonable and not unreasonably
discriminatory in the new decentralized model.'' The Commission then
compared Competing Consolidators to Self- Aggregators and noted that
Self-Aggregators would not be subject to redistribution fees. The
Participants believe that the comparison between Competing
Consolidators and Self-Aggregators is not appropriate in determining
whether a redistribution fee is not unreasonably discriminatory.
Instead, the more appropriate comparison would be between Competing
Consolidators and downstream vendors, both of which would be competing
to sell consolidated market data directly to the same market data
subscribers. Vendors are and still will be subject to Redistribution
Fees when redistributing data to market data subscribers. It would be
incongruent and impose a burden on competition for Competing
Consolidators to not be charged a redistribution fee for exactly the
same activity. Consequently, the Participants believe that it would be
unreasonably discriminatory to not charge Competing Consolidators the
redistribution fee. To the contrary, based on the long-standing policy
that Redistribution Fees are charged to any entity that distributes
data externally, the Participants believe it would be a significant
departure from established policy, a burden on competition, and
unreasonably discriminatory not to charge a Redistribution Fee to
Competing Consolidators.
K. Method and Frequency of Processor Evaluation
Not applicable.
L. Dispute Resolution
Not applicable.
II. Rule 601(a)
A. Reporting Requirements
Not applicable.
B. Manner of Collecting, Processing, Sequencing, Making Available and
Disseminating Last Sale Information
Not applicable.
C. Manner of Consolidation
Not applicable.
D. Standards and Methods Ensuring Promptness, Accuracy and Completeness
of Transaction Reports
Not applicable.
E. Rules and Procedures Addressed to Fraudulent or Manipulative
Dissemination
Not applicable.
F. Terms of Access to Transaction Reports
Not applicable.
G. Identification of Marketplace of Execution
Not applicable.
III. Solicitation of Comments
The Commission seeks comments on the Amendment. Interested persons
are invited to submit written data, views, and arguments concerning the
foregoing, including whether the proposed Amendment is consistent with
the Act and the rules and regulations thereunder applicable to national
market system plans. Comments may be submitted by any of the following
methods:
Electronic Comments
<bullet> Use the Commission's internet comment form (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#d7a5a2bbb2fab4b8babab2b9a3a497a4b2b4f9b0b8a1"><span class="__cf_email__" data-cfemail="3240475e571f515d5f5f575c4641724157511c555d44">[email protected]</span></a>. Please include
File Number S7-24-89 on the subject line.
Paper Comments
<bullet> 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 S7-24-89. 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 website (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>). Copies of
the submission, all written statements with respect to the proposed
Amendment that are filed with the Commission, and all written
communications relating to the proposed Amendment 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 3:00p.m. Copies of
the filing will also be available for website viewing and printing at
the principal office of the Plan.
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 S7-24-89 and should be
submitted on or before December 17, 2021.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
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\20\ 17 CFR 200.30-3(a)(85).
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J. Matthew DeLesDernier,
Assistant Secretary.
Attachment A--Proposed Changes to the UTP Plan
Attachment A
Proposed Changes to the UTP Plan
(Additions are italicized; Deletions are in [brackets].)
Exhibit 2
Fees for UTP Services
(a) [UTP Level 1 Service] Professional Services.
The charge for each interrogation device receiving UTP Level 1
Service is $24.00 per month. This Service includes the following data:
(1) Inside bid/ask quotations calculated for securities listed in
The Nasdaq Stock Market;
(2) last sale information on Nasdaq-listed securities;
(3) Odd-lot information; and
(4) Administrative data, regulatory data, and self-regulatory
organization-specific program data.
UTP Level 1 Service obtained from the Processor [also] includes
FINRA OTC Data but will not include Odd-lot information.
The charge for each interrogation device receiving depth of book
data is $99.00 per month. The charge for each interrogation device
receiving auction information is $10.00 per month.
Vendors with employees that are [UTP Level 1] Professional
Subscribers may opt to join the ``Multiple Instance, Single User''
(``MISU'') Program. The MISU Program allows such Vendors to pay a
single device fee for an individual employee's use of [UTP Level 1
Service] data when the individual employee receives [UTP Level 1
Service] data on
[[Page 67567]]
multiple devices. The MISU Program permits a single device fee for an
individual on multiple devices regardless of whether the individual
employee uses an internally-controlled devices or vendor-controlled
terminals.
To join the MISU Program, Vendors must be party to a vendor
agreement, submit a MISU application form, and a sample MISU Report to
demonstrate that the Vendor can comply with the reporting requirements
of the MISU Program. Additionally, Vendors must demonstrate adequate
internal controls for entitlements, monitoring, and usage reporting
requirements.
Vendors must submit a MISU Report in a format and include the
details requested by the UTP Administrator by the 20th day of the month
for which they are requesting credit. Failure to submit a MISU Report
by the deadline will result in credit being forfeited for that
particular month.
(b) Non-Professional Services.
(1) The charge for distribution of UTP Level 1 Service to a
nonprofessional subscriber shall be $1.00 per interrogation device per
month.
(2) The charge for distribution of depth of book data to a non-
professional subscriber shall be $4 per interrogation device per month.
(3) The charge for distribution of auction information to a non-
professional subscriber shall be $10 per interrogation device per
month.
[(2)](4) A ``non-professional'' is a natural person who is neither:
(A) registered or qualified in any capacity with the Commission,
the Commodities Futures Trading Commission, any state securities
agency, any securities exchange or association or any commodities or
futures contract market or association;
(B) engaged as an ``investment adviser'' as that term is defined in
Section 202(a)(11) of the Investment Advisors Act of 1940 (whether or
not registered or qualified under that Act); nor
(C) employed by a bank or other organization exempt from
registration under federal or state securities laws to perform
functions that would require registration or qualification if such
functions were performed for an organization not so exempt.
(c) Automated Voice Response Service Fee.
The monthly charge for distribution of UTP Level 1 Service through
automated voice response services shall be $21.25 for each voice port.
(d) Per Query Fee:
The charge for distribution of UTP Level 1 Service through a per
query system shall be $.0075 per query. The Per Query Fee is not
available for depth of book data and auction information.
(e) Nonprofessional Subscriber Enterprise Cap
An entity that is registered as a broker/dealer under the
Securities Exchange Act of 1934 is not required to pay more than the
``Enterprise Maximum'' for any month for each entitlement system. The
``Enterprise Maximum'' equals the aggregate amount of fees payable for
distribution of UTP Level 1 Service to nonprofessional subscribers that
are brokerage account customers of the broker/dealer under paragraphs
(b)(1) and (d) of this Exhibit 2.
For calendar year 2016, the monthly Enterprise Maximum is $648,000
per entitlement system. For each subsequent calendar year, the
Participants may, by the affirmative vote of not less than two-thirds
of all of the then voting members of the Operating Committee, determine
to increase the monthly Enterprise Maximum; provided, however, that no
such annual increase shall exceed four percent of the then current
Enterprise Maximum amount.
(f) Cable Television Ticker Fee.
The monthly charge for distribution of UTP Level 1 Service through
a cable television distribution system shall be as set forth below:
First 10 million Subscriber Households--$2.00 per 1,000 households
Next 10 million Subscriber Households--$1.00 per 1,000 households
For Subsequent Subscriber Households--$0.50 per 1,000 households
(g) Data Access Charges.\1\
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\1\ The data recipient is responsible for the telecommunications
facilities necessary to access data.
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The monthly fee for direct access to UTP Level 1 real-time data
feeds shall be $2,500 for direct access and $500 for indirect access.
The monthly fee for access to depth of book data shall be $9,850.
The monthly fee for access to auction information shall be $985.
(h) Redistribution Charge
The charge for redistributing real-time [UTP Level 1 Service] core
data, or any subset thereof, is $1,000 per month. The charge for
redistributing delayed UTP Level 1 Service is $250 per month. Depth of
book data and auction information may not be redistributed on a delayed
basis. The charge applies to any entity that makes [UTP Level 1
Service] data available to any other entity or to any person other than
its employees, irrespective of the means of transmission or access. The
charge applies to Competing Consolidators.
(i) Non-Display Use Fees
The monthly charge for Non-Display Use of UTP Level 1 Service is
$3,500 for each of three types of Non-Display Use. The charge entitles
the data recipient to use both quotation information and last sale
information.
The monthly charge for Non-Display Use of depth of book data is
$12,477 for each of three types of Non-Display Use. The monthly charge
for Non-Display Use of auction information is $1,248 for each of three
types of Non-Display Use.
Non-Display Use refers to accessing, processing or consuming data,
whether received via direct and/or redistributor data feeds, for a
purpose other than (a) in support of the datafeed recipient's display
or (b) for the purpose of further internally or externally
redistributing the data. Further redistribution of the data includes,
but is not limited to, the transportation or dissemination to another
server, location or device or the aggregation of data with other data
sources. Non-Display Use fees do not apply to the use of the data in
Non-Display to create derived data and use the derived data for the
purposes of solely displaying the derived data, but the data may be fee
liable under the regular fee schedule.
The Non-Display Use fees apply separately for each use type and a
single organization may be liable for multiple Non-Display Uses.
The Participants recognize three types of Non-Display Uses as
follows:
(a) The Non-Display Use fee for Electronic Trading Systems applies
when a datafeed recipient makes a Non-Display Use of data in an
electronic trading system, whether the system trades on the datafeed
recipient's own behalf or on behalf of its customers. This fee
includes, but is not limited to, use of data in any trading
platform(s), such as exchanges, alternative trading systems
(``ATS's''), broker crossing networks, broker crossing systems not
filed as ATS's, dark pools, multilateral trading facilities, and
systematic internalization systems.
An organization that uses data in electronic trading systems must
count each platform that uses data on a non-display basis. For example,
an organization that uses quotation information for the purposes of
operating an ATS and also for operating a broker crossing system not
registered as an ATS would be required to pay two Electronic Trading
System fees.
(b) Non-Display Enterprise Licenses:
(i) The Non-Display Use fee for Internal Use applies when a
datafeed recipient's Non-Display Use is on its
[[Page 67568]]
own behalf (other than for purposes of an electronic trading system).
(ii) The Non-Display Use fee for Internal Use applies when a
datafeed recipient's Non-Display Use is on behalf of its customers
(other than for purposes of an electronic trading system).
The two types of Non-Display Enterprise Licenses include, but are
not limited to, use of data for automated order or quote generation
and/or order pegging, price referencing for algorithmic trading, price
referencing for smart order routing, operations control programs,
investment analysis, order verification, surveillance programs, risk
management, compliance or portfolio valuation.
(j) Annual Administrative Fees.
The annual administrative fee to be paid by distributor for access
to UTP Level 1 Service shall be as set forth below:
Delayed distributor--$250
[FR Doc. 2021-25747 Filed 11-24-21; 8:45 am]
BILLING CODE 8011-01-P
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</html>Indexed from Federal Register on November 26, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.