Notice2024-03900
Self-Regulatory Organizations; Cboe C2 Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fees Schedule Related to Physical Port Fees
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
February 27, 2024
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 89 Issue 39 (Tuesday, February 27, 2024)</title>
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[Federal Register Volume 89, Number 39 (Tuesday, February 27, 2024)]
[Notices]
[Pages 14538-14542]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-03900]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-99571; File No. SR-C2-2024-004]
Self-Regulatory Organizations; Cboe C2 Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend
Its Fees Schedule Related to Physical Port Fees
February 21, 2024.
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 February 9, 2024, Cboe C2 Exchange, Inc. (Exchange'' or ``C2'')
filed with the Securities and Exchange Commission (``Commission'') the
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
Cboe C2 Exchange, Inc. (the ``Exchange'' or ``C2 Options'')
proposes to amend its Fees Schedule. The text of the proposed rule
change is provided in Exhibit 5.
The text of the proposed rule change is also available on the
Exchange's website (<a href="http://markets.cboe.com/us/options/regulation/rule_filings/ctwo/">http://markets.cboe.com/us/options/regulation/rule_filings/ctwo/</a>), at the Exchange's Office of the Secretary, and at
the Commission's Public Reference Room.
[[Page 14539]]
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 its fee schedule relating to
physical connectivity fees.\3\
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\3\ The Exchange initially filed the proposed fee changes on
July 3, 2023 (SR-C2-2023-014). On September 1, 2023, the Exchange
withdrew that filing and submitted SR-C2-2023-020. On September 29,
2023, the Securities and Exchange Commission issued a Suspension of
and Order Instituting Proceedings to Determine whether to Approve or
Disapprove a Proposed Rule Change to Amend its Fees Schedule Related
to Physical Port Fees (the ``OIP''). On September 29, 2023, the
Exchange filed the proposed fee change (SR-C2-2023-021). On October
13, 2023, the Exchange withdrew that filing and submitted SR-C2-
2023-022. On December 12, 2023, the Exchange withdrew that filing
and submitted SR-C2-2023-025. On February 9, 2024, the Exchange
withdrew that filing and submitted this filing.
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By way of background, a physical port is utilized by a Member or
non-Member to connect to the Exchange at the data centers where the
Exchange's servers are located. The Exchange currently assesses the
following physical connectivity fees for Trading Permit Holders
(``TPHs'') and non-TPHs on a monthly basis: $2,500 per physical port
for a 1 gigabit (``Gbps'') circuit and $7,500 per physical port for a
10 Gbps circuit. The Exchange proposes to increase the monthly fee for
10 Gbps physical ports from $7,500 to $8,500 per port. The Exchange
notes the proposed fee change better enables it to continue to maintain
and improve its market technology and services and also notes that the
proposed fee amount, even as amended, continues to be in line with, or
even lower than, amounts assessed by other exchanges for similar
connections.\4\ The physical ports may also be used to access the
Systems for the following affiliate exchanges and only one monthly fee
currently (and will continue) to apply per port: Cboe BZX Exchange,
Inc. (options and equities platforms), Cboe EDGX Exchange, Inc.
(options and equities platforms), Cboe BYX Exchange, Inc., and Cboe
EDGA Exchange, Inc. (``Affiliate Exchanges'').\5\
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\4\ See e.g., The Nasdaq Stock Market LLC (``Nasdaq''), General
8, Connectivity to the Exchange. Nasdaq and its affiliated exchanges
charge a monthly fee of $15,000 for each 10 Gbps Ultra fiber
connection to the respective exchange, which is analogous to the
Exchange's 10 Gbps physical port. See also New York Stock Exchange
LLC, NYSE American LLC, NYSE Arca, Inc., NYSE Chicago Inc., NYSE
National, Inc. Connectivity Fee Schedule, which provides that 10
Gbps LX LCN Circuits (which are analogous to the Exchange's 10 Gbps
physical port) are assessed $22,000 per month, per port.
\5\ The Affiliate Exchanges are also submitting contemporaneous
identical rule filings.
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2. Statutory Basis
The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act.\6\ Specifically, the
Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \7\ requirements that the rules of an exchange be
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest. Additionally,
the Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \8\ requirement that the rules of an exchange not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers. The Exchange also believes the proposed rule
change is consistent with Section 6(b)(4) \9\ of the Act, which
requires that Exchange rules provide for the equitable allocation of
reasonable dues, fees, and other charges among its TPHs and other
persons using its facilities.
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\6\ 15 U.S.C. 78f(b).
\7\ 15 U.S.C. 78f(b)(5).
\8\ Id.
\9\ 15 U.S.C. 78f(b)(4).
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The Exchange believes the proposed fee change is reasonable as it
reflects a moderate increase in physical connectivity fees for 10 Gbps
physical ports. Further, the current 10 Gbps physical port fee has
remained unchanged since June 2018.\10\ Since its last increase over 5
years ago however, there has been notable inflation. Particularly, the
dollar has had an average inflation rate of 3.9% per year between 2018
and today, producing a cumulative price increase of approximately 21.1%
inflation since the fee for the 10 Gbps physical port was last
modified.\11\ Moreover, the Exchange historically does not increase
fees every year, notwithstanding inflation. Accordingly, the Exchange
believes the proposed fee is reasonable as it represents only an
approximate 13% increase from the rates adopted five years ago,
notwithstanding the cumulative rate of 21.1%. The Exchange is also
unaware of any standard that suggests any fee proposal that exceeds a
certain yearly or cumulative inflation rate is unreasonable, and in any
event, in this instance the increase is well below the cumulative rate.
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\10\ See Securities and Exchange Release No. 83455 (June 15,
2018), 83 FR 28892 (June 21, 2018) (SR-C2-2018-014).
\11\ See <a href="https://www.officialdata.org/us/inflation/2010?amount=1">https://www.officialdata.org/us/inflation/2010?amount=1</a>.
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Additionally, the Exchange believes the proposed fee increase is
reasonable in light of recent and anticipated connectivity-related
upgrades and changes. For example, the Exchange recently performed
switch hardware upgrades. Particularly, the Exchange replaced existing
customer access switches with newer models, which the Exchange believes
contributes to increased determinism. Additionally, effective April 1,
2024, firms will be able to connect to a new data center (i.e.,
Secaucus NY6 Data Center (``NY6'')), in addition the current data
centers at NY4 and NY5. The Exchange is adding connectivity at NY6 in
response to Customer demand and requests for additional space and
capacity.
The Exchange also believes the proposed fee is reasonable as it is
still in line with, or even lower than, amounts assessed by other
exchanges for similar connections.\12\ Indeed, the Exchange believes
assessing fees that are a lower rate than fees assessed by other
exchanges for analogous connectivity (which were similarly adopted via
the rule filing process and filed with the
[[Page 14540]]
Commission) is reasonable. As noted above, the proposed fee is also the
same as is concurrently being proposed for its Affiliate Exchanges.
Further, TPHs are able to utilize a single port to connect to any of
the Affiliate Exchanges with no additional fee assessed for that same
physical port. Particularly, the Exchange believes the proposed monthly
per port fee is reasonable, equitable and not unfairly discriminatory
as it is assessed only once, even if it connects with another affiliate
exchange since only one port is being used and the Exchange does not
wish to charge multiple fees for the same port. Indeed, the Exchange
notes that several ports are in fact purchased and utilized across one
or more of the Exchange's affiliated Exchanges (and charged only once).
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\12\ See e.g., The Nasdaq Stock Market LLC (``Nasdaq''), General
8, Connectivity to the Exchange. Nasdaq and its affiliated exchanges
charge a monthly fee of $15,000 for each 10 Gbps Ultra fiber
connection to the respective exchange, which is analogous to the
Exchange's 10 Gbps physical port. See also New York Stock Exchange
LLC, NYSE American LLC, NYSE Arca, Inc., NYSE Chicago Inc., NYSE
National, Inc. Connectivity Fee Schedule, which provides that 10
Gbps LX LCN Circuits (which are analogous to the Exchange's 10 Gbps
physical port) are assessed $22,000 per month, per port.
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The Exchange also believes that the proposed fee change is not
unfairly discriminatory because it would be assessed uniformly across
all market participants that purchase the physical ports. The Exchange
believes increasing the fee for 10 Gbps physical ports and charging a
higher fee as compared to the 1 Gbps physical port is equitable as the
1 Gbps physical port is 1/10th the size of the 10 Gbps physical port
and therefore does not offer access to many of the products and
services offered by the Exchange (e.g., ability to receive certain
market data products). Thus, the value of the 1 Gbps alternative is
lower than the value of the 10 Gbps alternative, when measured based on
the type of Exchange access it offers. Moreover, market participants
that purchase 10 Gbps physical ports utilize the most bandwidth and
therefore consume the most resources from the network. As such, the
Exchange believes the proposed fee change for 10 Gbps physical ports is
reasonably and appropriately allocated.
The Exchange also notes TPHs and non-TPHs will continue to choose
the method of connectivity based on their specific needs and no broker-
dealer is required to become a TPH of, let alone connect directly to,
the Exchange. There is also no regulatory requirement that any market
participant connect to any one particular exchange. Moreover, direct
connectivity is not a requirement to participate on the Exchange. The
Exchange also believes substitutable products and services are
available to market participants, including, among other things, other
options exchanges that a market participant may connect to in lieu of
the Exchange, indirect connectivity to the Exchange via a third-party
reseller of connectivity, and/or trading of any options product, such
as within the Over-the-Counter (OTC) markets which do not require
connectivity to the Exchange. Indeed, there are currently 17 registered
options exchanges that trade options (13 of which are not affiliated
with Cboe), some of which have similar or lower connectivity fees.\13\
Based on publicly available information, no single options exchange has
more than approximately 20% of the market share.\14\ Further, low
barriers to entry mean that new exchanges may rapidly enter the market
and offer additional substitute platforms to further compete with the
Exchange and the products it offers. For example, there are 4 exchanges
that have been added in the U.S. options markets in the last 5 years
(i.e., Nasdaq MRX, LLC, MIAX Pearl, LLC, MIAX Emerald LLC, and most
recently, MEMX LLC).
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\13\ Id.
\14\ See Cboe Global Markets U.S. Options Market Volume Summary
(October 13, 2023), available at <a href="https://markets.cboe.com/us/options/market_statistics/">https://markets.cboe.com/us/options/market_statistics/</a>.
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As noted above, there is no regulatory requirement that any market
participant connect to any one options exchange, nor that any market
participant connect at a particular connection speed or act in a
particular capacity on the Exchange, or trade any particular product
offered on an exchange. Moreover, membership is not a requirement to
participate on the Exchange. Indeed, the Exchange is unaware of any one
options exchange whose membership includes every registered broker-
dealer. By way of example, while the Exchange has 52 TPHs, Cboe BZX has
61 members that trade options, and Cboe EDGX has 51 members that trade
options. There is also no firm that is a Member of C2 Options only.
Further, based on publicly available information regarding a sample of
the Exchange's competitors, NYSE American Options has 71 members,\15\
and NYSE Arca Options has 69 members,\16\ MIAX Options has 46 members
\17\ and MIAX Pearl Options has 40 members.\18\
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\15\ See <a href="https://www.nyse.com/markets/american-options/membership#directory">https://www.nyse.com/markets/american-options/membership#directory</a>.
\16\ See <a href="https://www.nyse.com/markets/arca-options/membership#directory">https://www.nyse.com/markets/arca-options/membership#directory</a>.
\17\ See <a href="https://www.miaxglobal.com/sites/default/files/page-files/MIAX_Options_Exchange_Members_April_2023_04282023.pdf">https://www.miaxglobal.com/sites/default/files/page-files/MIAX_Options_Exchange_Members_April_2023_04282023.pdf</a>.
\18\ See <a href="https://www.miaxglobal.com/sites/default/files/page-files/MIAX_Pearl_Exchange_Members_01172023_0.pdf">https://www.miaxglobal.com/sites/default/files/page-files/MIAX_Pearl_Exchange_Members_01172023_0.pdf</a>.
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A market participant may also submit orders to the Exchange via a
Member broker or a third-party reseller of connectivity. The Exchange
notes that third-party non-TPHs also resell exchange connectivity. This
indirect connectivity is another viable alternative for market
participants to trade on the Exchange without connecting directly to
the Exchange (and thus not pay the Exchange connectivity fees), which
alternative is already being used by non-TPHs and further constrains
the price that the Exchange is able to charge for connectivity to its
Exchange.\19\ The Exchange notes that it could, but chooses not to,
preclude market participants from reselling its connectivity. Unlike
other exchanges, the Exchange also chooses not to adopt fees that would
be assessed to third-party resellers on a per customer basis (i.e., fee
based on number of TPHs that connect to the Exchange indirectly via the
third-party).\20\ Particularly, these third-party resellers may
purchase the Exchange's physical ports and resell access to such ports
either alone or as part of a package of services. The Exchange notes
that multiple TPHs are able to share a single physical port (and
corresponding bandwidth) with other non-affiliated TPHs if purchased
through a third-party reseller.\21\ This allows resellers to mutualize
the costs of the ports for market participants and provide such ports
at a price that may be lower than the Exchange charges due to this
mutualized connectivity. These third-party sellers may also provide an
additional value to market participants in addition to the physical
port itself as they may also manage and monitor these connections, and
clients of these third-parties may also be able to connect from the
same colocation facility either from their own racks or using the
third-party's managed racks and infrastructure which may provide
[[Page 14541]]
further cost-savings. The Exchange believes such third-party resellers
may also use the Exchange's connectivity as an incentive for market
participants to purchase further services such as hosting services.
That is, even firms that wish to utilize a single, dedicated 10 Gb port
(i.e., use one single 10 Gb port themselves instead of sharing a port
with other firms), may still realize cost savings via a third-party
reseller as it relates to a physical port because such reseller may be
providing a discount on the physical port to incentivize the purchase
of additional services and infrastructure support alongside the
physical port offering (e.g., providing space, hosting, power, and
other long-haul connectivity options). This is similar to cell phone
carriers offering a new iPhone at a discount (or even at no cost) if
purchased in connection with a new monthly phone plan. These services
may reevaluate reselling or offering Cboe's direct connectivity if they
deem the fees to be excessive. Further, as noted above, the Exchange
does not receive any connectivity revenue when connectivity is resold
by a third-party, which often is resold to multiple customers, some of
whom are agency broker-dealers that have numerous customers of their
own. For example, there are approximately 12 third parties who resell
Exchange connectivity across the 7 Affiliated Exchanges, which are all
accessible on the same network. These third-party resellers
collectively maintain approximately 48 physical ports from the
Exchange, but have collectively almost 200 unique customers downstream,
connected through these multi-Exchange ports. Therefore, given the
availability of third-party providers that also offer connectivity
solutions, the Exchange believes participation on the Exchange remains
affordable (notwithstanding the proposed fee change) for all market
participants, including trading firms that may be able to take
advantage of lower costs that result from mutualized connectivity and/
or from other services provided alongside the physical port offerings.
Because third-party resellers also act as a viable alternative to
direct connectivity to the Exchange, the price that the Exchange is
able to charge for direct connectivity to its Exchange is constrained.
Moreover, if the Exchange were to assess supracompetitve rates, members
and non-members (such as third-party resellers) alike, may decide not
to purchase, or to reduce its use of, the Exchange's direct
connectivity. Disincentivizing market participants from purchasing
Exchange connectivity would only serve to discourage participation on
the Exchange which ultimately does not benefit the Exchange. Further,
the Exchange believes its offerings are more affordable as compared to
similar offerings at competitor exchanges.\22\
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\19\ Third-party resellers of connectivity play an important
role in the capital markets infrastructure ecosystem. For example,
third-party resellers can help unify access for customers who want
exposure to multiple financial markets that are geographically
dispersed by establishing connectivity to all of the different
exchanges, so the customers themselves do not have to. Many of the
third-party connectivity resellers also act as distribution agents
for all of the market data generated by the exchanges as they can
use their established connectivity to subscribe to, and
redistribute, data over their networks. This may remove barriers
that infrastructure requirements may otherwise pose for customers
looking to access multiple markets and real-time data feeds. This
facilitation of overall access to the marketplace is ultimately
beneficial for the entire capital markets ecosystem, including the
Exchange, on which such firms transact business.
\20\ See, e.g., Nasdaq Price List--U.S. Direct Connection and
Extranet Fees, available at, US Direct-Extranet Connection
(<a href="http://nasdaqtrader.com">nasdaqtrader.com</a>); and Securities Exchange Act Release Nos. 74077
(January 16, 2022), 80 FR 3683 (January 23, 2022) (SR-NASDAQ-2015-
002); and 82037 (November 8, 2022), 82 FR 52953 (November 15, 2022)
(SR-NASDAQ-2017-114).
\21\ For example, a third-party reseller may purchase one 10
Gbps physical port from the Exchange and resell that connectivity to
three different market participants who may only need 3 Gbps each
and leverage the same single port.
\22\ See e.g., The Nasdaq Stock Market LLC (``Nasdaq''), General
8, Connectivity to the Exchange. Nasdaq and its affiliated exchanges
charge a monthly fee of $15,000 for each 10 Gbps Ultra fiber
connection to the respective exchange, which is analogous to the
Exchange's 10 Gbps physical port. See also New York Stock Exchange
LLC, NYSE American LLC, NYSE Arca, Inc., NYSE Chicago Inc., NYSE
National, Inc. Connectivity Fee Schedule, which provides that 10
Gbps LX LCN Circuits (which are analogous to the Exchange's 10 Gbps
physical port) are assessed $22,000 per month, per port.
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Accordingly, the vigorous competition among national securities
exchanges provides many alternatives for firms to voluntarily decide
whether direct connectivity to the Exchange is appropriate and
worthwhile, and as noted above, no broker-dealer is required to become
a Member of the Exchange, let alone connect directly to it. In the
event that a market participant views the Exchange's proposed fee
change as more or less attractive than the competition, that market
participant can choose to connect to the Exchange indirectly or may
choose not to connect to that exchange and connect instead to one or
more of the other 13 non-Cboe affiliated options markets. Indeed,
market participants are free to choose which exchange or reseller to
use to satisfy their business needs. Moreover, if the Exchange charges
excessive fees, it may stand to lose not only connectivity revenues but
also revenues associated with the execution of orders routed to it,
and, to the extent applicable, market data revenues. The Exchange
believes that this competitive dynamic imposes powerful restraints on
the ability of any exchange to charge unreasonable fees for
connectivity. Notwithstanding the foregoing, the Exchange still
believes that the proposed fee increase is reasonable, equitably
allocated and not unfairly discriminatory, even for market participants
that determine to connect directly to the Exchange for business
purposes, as those business reasons should presumably result in revenue
capable of covering the proposed fee.
The Exchange lastly notes that it is not required by the Exchange
Act, nor any other rule or regulation, to undertake a cost-of-service
or rate-making approach with respect to fee proposals. Moreover,
Congress's intent in enacting the 1975 Amendments to the Act was to
enable competition--rather than government order--to determine prices.
The principal purpose of the amendments was to facilitate the creation
of a national market system for the trading of securities. Congress
intended that this ``national market system evolve through the
interplay of competitive forces as unnecessary regulatory restrictions
are removed.'' \23\ Other provisions of the Act confirm that intent.
For example, the Act provides that an exchange must design its rules
``to remove impediments to and perfect the mechanism of a free and open
market and a national market system, and, in general, to protect
investors and the public interest.'' \24\ Likewise, the Act grants the
Commission authority to amend or repeal ``[t]he rules of [an] exchange
[that] impose any burden on competition not necessary or appropriate in
furtherance of the purposes of this chapter.'' \25\ In short, the
promotion of free and open competition was a core congressional
objective in creating the national market system.\26\ Indeed, the
Commission has historically interpreted that mandate to promote
competitive forces to determine prices whenever compatible with a
national market system. Accordingly, the Exchange believes it has met
its burden to demonstrate that its proposed fee change is reasonable
and consistent with the immediate filing process chosen by Congress,
which created a system whereby market forces determine access fees in
the vast majority of cases, subject to oversight only in particular
cases of abuse or market failure. Lastly, and importantly, the Exchange
believes that, even if it were possible as a matter of economic theory,
cost-based pricing for the proposed fee would be so complicated that it
could not be done practically.
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\23\ See H.R. Rep. No. 94-229, at 92 (1975) (Conf. Rep.)
(emphasis added).
\24\ 15 U.S.C. 78f(b)(5).
\25\ 15 U.S.C. 78f(8).
\26\ See also 15 U.S.C. 78k-l(a)(1)(C)(ii) (purposes of Exchange
Act include to promote ``fair competition among brokers and dealers,
among exchange markets, and between exchange markets and markets
other than exchange markets''); Order, 73 FR at 74781 (``The
Exchange Act and its legislative history strongly support the
Commission's reliance on competition, whenever possible, in meeting
its regulatory responsibilities for overseeing the SROs and the
national market system.'').
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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. The proposed fee change will
not impact intramarket competition because it will
[[Page 14542]]
apply to all similarly situated TPHs equally (i.e., all market
participants that choose to purchase the 10 Gbps physical port).
Additionally, the Exchange does not believe its proposed pricing will
impose a barrier to entry to smaller participants and notes that its
proposed connectivity pricing is associated with relative usage of the
various market participants. For example, market participants with
modest capacity needs can continue to buy the less expensive 1 Gbps
physical port (which cost is not changing) or may choose to obtain
access via a third-party reseller. While pricing may be increased for
the larger capacity physical ports, such options provide far more
capacity and are purchased by those that consume more resources from
the network. Accordingly, the proposed connectivity fees do not favor
certain categories of market participants in a manner that would impose
a burden on competition; rather, the allocation reflects the network
resources consumed by the various size of market participants--lowest
bandwidth consuming members pay the least, and highest bandwidth
consuming members pays the most.
The Exchange's proposed fee is also still lower than some fees for
similar connectivity on other exchanges and therefore may stimulate
intermarket competition by attracting additional firms to connect to
the Exchange or at least should not deter interested participants from
connecting directly to the Exchange. Further, if the changes proposed
herein are unattractive to market participants, the Exchange can, and
likely will, see a decline in connectivity via 10 Gbps physical ports
as a result. The Exchange operates in a highly competitive market in
which market participants can determine whether or not to connect
directly to the Exchange based on the value received compared to the
cost of doing so. Indeed, market participants have numerous alternative
venues that they may participate on and direct their order flow,
including 13 non-Cboe affiliated options markets, as well as off-
exchange venues, where competitive products are available for trading.
Moreover, the Commission has repeatedly expressed its preference for
competition over regulatory intervention in determining prices,
products, and services in the securities markets. Specifically, in
Regulation NMS, the Commission highlighted the importance of market
forces in determining prices and SRO revenues and, also, recognized
that current regulation of the market system ``has been remarkably
successful in promoting market competition in its broader forms that
are most important to investors and listed companies.'' \27\ The fact
that this market is competitive has also long been recognized by the
courts. In NetCoalition v. Securities and Exchange Commission, the D.C.
Circuit stated as follows: ``[n]o one disputes that competition for
order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S.
national market system, buyers and sellers of securities, and the
broker-dealers that act as their order-routing agents, have a wide
range of choices of where to route orders for execution'; [and] `no
exchange can afford to take its market share percentages for granted'
because `no exchange possesses a monopoly, regulatory or otherwise, in
the execution of order flow from broker dealers'. . .''.\28\
Accordingly, the Exchange does not believe its proposed change imposes
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.
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\27\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
\28\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010)
(quoting Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
The Exchange neither solicited nor received comments on the
proposed rule change.
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) of the Act \29\ and paragraph (f) of Rule 19b-4 \30\
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 will institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.
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\29\ 15 U.S.C. 78s(b)(3)(A).
\30\ 17 CFR 240.19b-4(f).
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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
<bullet> Use the Commission's internet comment form (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#82f0f7eee7afe1edefefe7ecf6f1c2f1e7e1ace5edf4"><span class="__cf_email__" data-cfemail="b5c7c0d9d098d6dad8d8d0dbc1c6f5c6d0d69bd2dac3">[email protected]</span></a>. Please include
file number SR-C2-2024-004 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 SR-C2-2024-004. 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 (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>). 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
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-C2-2024-004 and should be
submitted on or before March 19, 2024.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\31\
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\31\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-03900 Filed 2-26-24; 8:45 am]
BILLING CODE 8011-01-P
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</html>Indexed from Federal Register on February 27, 2024.
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.