82_FR_37424 82 FR 37272 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use on Bats BZX Exchange, Inc.'s Equity Options Platform

82 FR 37272 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use on Bats BZX Exchange, Inc.'s Equity Options Platform

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 82, Issue 152 (August 9, 2017)

Page Range37272-37274
FR Document2017-16738

Federal Register, Volume 82 Issue 152 (Wednesday, August 9, 2017)
[Federal Register Volume 82, Number 152 (Wednesday, August 9, 2017)]
[Notices]
[Pages 37272-37274]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-16738]



[[Page 37272]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-81304; File No. SR-BatsBZX-2017-48]


Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of 
Filing and Immediate Effectiveness of a Proposed Rule Change Related to 
Fees for Use on Bats BZX Exchange, Inc.'s Equity Options Platform

August 3, 2017.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on July 25, 2017 Bats BZX Exchange, Inc. (the ``Exchange'' or 
``BZX'') 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 
Exchange has designated the proposed rule change as one establishing or 
changing a member due, fee, or other charge imposed by the Exchange 
under Section 19(b)(3)(A)(ii) of the Act \3\ and Rule 19b-4(f)(2) 
thereunder,\4\ which renders the proposed rule change effective upon 
filing with the Commission. 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.
    \3\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange filed a proposal to amend to amend its fees and 
rebates applicable to Members \5\ and non-Members of the Exchange 
pursuant to BZX Rules 15.1(a) and (c).
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    \5\ The term ``Member'' is defined as ``any registered broker or 
dealer that has been admitted to membership in the Exchange.'' See 
Exchange Rule 1.5(n).
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    The text of the proposed rule change is available at the Exchange's 
Web site at www.bats.com, at the principal office of the Exchange, and 
at the Commission's Public Reference Room.

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

    In its filing with the Commission, the 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 parts of such 
statements.

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

1. Purpose
    The Exchange proposes to modify the fee schedule applicable to the 
Exchange's equity options platform (``BZX Options'') to increase the 
fees for both Internal and External Distribution of its Multicast PITCH 
market data feed. Multicast PITCH is a market data product that offers 
depth of book quotations and execution information based on options 
orders entered into the System.
    The Exchange currently charges both Internal Distributors \6\ and 
External Distributors \7\ of Multicast PITCH a fee of $1,500 per month. 
The Exchange now proposes to increase this fee and to charge Internal 
and External Distributors different rates. Specifically, the Exchange 
proposes to charge Internal Distributors of Multicast PITCH a fee of 
$3,000 per month and External Distributors a fee of $2,000 per 
month.\8\ The Exchange also proposes to make clear in its fee schedule 
that where a Distributor acts as both an External and Internal 
Distributor of Multicast PITCH that it will pay the greater of the two 
Distribution fees for internal or external use and not be charged both 
fees each month.
---------------------------------------------------------------------------

    \6\ See Exchange Rule 21.15(b)(1). The term ``System'' is 
defined as ``the electronic communications and trading facility 
designated by the Board through which securities orders of Users are 
consolidated for ranking, execution and, when applicable, routing 
away. A Distributor ``is any entity that receives the Exchange 
Market Data product directly from the Exchange or indirectly through 
another entity and then distributes it internally or externally to a 
third party.'' See the Exchange's fee schedule available at http://www.bats.com/us/options/membership/fee_schedule/bzx/. An Internal 
Distributor of an Exchange Market Data product is a Distributor that 
receives the Exchange Market Data product and then distributes that 
data to one or more Users within the Distributor's own entity. Id.
    \7\ An External Distributor of an Exchange Market Data product 
is a Distributor that receives the Exchange Market Data product and 
then distributes that data to a third party or one or more Users 
outside the Distributor's own entity. Id.
    \8\ The Exchange issued a notice on June 1, 2017 describing the 
proposed fee increase. See Bats BZX Options Fee Schedule Changes 
Effective July 3, 2017 and August 1, 2017, available at http://cdn.batstrading.com/resources/fee_schedule/2017/Bats-BZX-Options-Fee-Schedule-Changes-Effective-July-1-2017.pdf.
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    The Exchange proposes to implement these amendments to its fee 
schedule on August 1, 2017.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the objectives of Section 6 of the Act,\9\ in general, and 
furthers the objectives of Section 6(b)(4),\10\ in particular, as it is 
designed to provide for the equitable allocation of reasonable dues, 
fees and other charges among its members and other recipients of 
Exchange data. The Exchange believes that the proposed rates are 
equitable and non-discriminatory in that they apply uniformly to all 
recipients of Exchange data. The Exchange believes the proposed fees 
are competitive with those charged by other venues and, therefore, 
reasonable and equitably allocated to recipients. Lastly, the Exchange 
also believes that the proposed fees are reasonable and non-
discriminatory because they will apply uniformly to all recipients of 
Exchange data.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f.
    \10\ 15 U.S.C. 78f(b)(4).
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    The Exchange also believes that the proposed rule change is 
consistent with Section 11(A) of the Act \11\ in that it supports (i) 
fair competition among brokers and dealers, among exchange markets, and 
between exchange markets and markets other than exchange markets; and 
(ii) the availability to brokers, dealers, and investors of information 
with respect to quotations for and transactions in securities. 
Furthermore, the proposed rule change is consistent with Rule 603 of 
Regulation NMS,\12\ which provides that any national securities 
exchange that distributes information with respect to quotations for or 
transactions in an NMS stock do so on terms that are not unreasonably 
discriminatory. In adopting Regulation NMS, the Commission granted 
self-regulatory organizations and broker-dealers increased authority 
and flexibility to offer new and unique market data to the public. It 
was believed that this authority would expand the amount of data 
available to consumers, and also spur innovation and competition for 
the provision of market data.
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    \11\ 15 U.S.C. 78k-1.
    \12\ 17 CFR 242.603.
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    In addition, the proposed fees would not permit unfair 
discrimination because all of the Exchange's subscribers will be 
subject to the proposed fees on an equivalent basis. The Multicast 
PITCH is distributed and purchased on a voluntary basis, in that 
neither the Exchange nor the market data Distributors are required by 
any rule or regulation to make this data available. Accordingly, 
Distributors can

[[Page 37273]]

discontinue their use at any time and for any reason, including due to 
an assessment of the reasonableness of fees charged. Firms have a wide 
variety of alternative market data products from which to choose, such 
as similar proprietary data products offered by other exchanges and 
consolidated data. Moreover, the Exchange is not required to make any 
proprietary data products available or to offer any specific pricing 
alternatives to any customers.
    In addition, the fees that are the subject of this rule filing are 
constrained by competition. As explained below in the Exchange's 
Statement on Burden on Competition, the existence of alternatives to 
the Multicast PITCH further ensures that the Exchange cannot set 
unreasonable fees, or fees that are unreasonably discriminatory, when 
subscribers can elect such alternatives. That is, the Exchange competes 
with other exchanges (and their affiliates) that provide similar market 
data products. If another exchange (or its affiliate) were to charge 
less to consolidate and distribute its similar product than the 
Exchange charges to consolidate and distribute the Multicast PITCH, 
prospective users likely would not subscribe to, or would cease 
subscribing to the Multicast PITCH.
    The Exchange notes that the Commission is not required to undertake 
a cost-of-service or rate-making approach. The Exchange believes that, 
even if it were possible as a matter of economic theory, cost-based 
pricing for non-core market data would be so complicated that it could 
not be done practically.\13\
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    \13\ The Exchange believes that cost-based pricing would be 
impractical because it would create enormous administrative burdens 
for all parties, including the Commission, to cost-regulate a large 
number of participants and standardize and analyze extraordinary 
amounts of information, accounts, and reports. In addition, it is 
impossible to regulate market data prices in isolation from prices 
charged by markets for other services that are joint products. Cost-
based rate regulation would also lead to litigation and may distort 
incentives, including those to minimize costs and to innovate, 
leading to further waste. Under cost-based pricing, the Commission 
would be burdened with determining a fair rate of return, and the 
industry could experience frequent rate increases based on 
escalating expense levels. Even in industries historically subject 
to utility regulation, cost-based ratemaking has been discredited. 
As such, the Exchange believes that cost-based ratemaking would be 
inappropriate for proprietary market data and inconsistent with 
Congress's direction that the Commission use its authority to foster 
the development of the national market system, and that market 
forces will continue to provide appropriate pricing discipline. See 
Appendix C to NYSE's comments to the Commission's 2000 Concept 
Release on the Regulation of Market Information Fees and Revenues, 
which can be found on the Commission's Web site at http://www.sec.gov/rules/concept/s72899/buck1.htm. See also Securities 
Exchange Act Release No. 73816 (December 11, 2014), 79 FR 75200 
(December 17, 2014) (SR-NYSE-2014-64) (Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change to Establish an 
Access Fee for the NYSE Best Quote and Trades Data Feed, Operative 
December 1, 2014).
---------------------------------------------------------------------------

    The proposed amendment to the Internal Distributor fee for 
Multicast PITCH is also equitable and reasonable as, despite the 
increase, the proposed fees continues to be similar to fees currently 
charged by the Nasdaq Stock Market LLC (``Nasdaq'') for their options 
depth-of-book data product. Nasdaq currently charges external 
distributors of ITTO,\14\ $2,000 per month.\15\ Nasdaq's fee for 
external distribution is identical to that proposed by the Exchange 
herein. In addition, the Chicago Board Options Exchange, Incorporated 
(``CBOE'') charges a monthly fee of $7,000 to internal and external 
distributors of its depth-of-book data.\16\
---------------------------------------------------------------------------

    \14\ ITTO stands for NASDAQ ITCH to Trade Options, and is a data 
feed that provides quotation information for individual orders on 
the NOM book, last sale information for trades executed on NOM, and 
Order Imbalance Information as set forth in NOM Rules Chapter VI, 
Section 8 [sic]. See Nasdaq Sec. 4(a), NASDAQ Options Market Data 
Distributor Fees. Available at http://www.nasdaqtrader.com/Micro.aspx?id=optionsPricing.
    \15\ See Nasdaq Sec. 4(a), NASDAQ Options Market Data 
Distributor Fees. Available at http://www.nasdaqtrader.com/Micro.aspx?id=optionsPricing.
    \16\ See CBOE Market Data Express, LLC (MDX) CBOE Streaming 
Markets Fee Schedule available at https://www.cboe.org/publish/mdxfees/mdxfeescheduleforcboedatafeeds.pdf.
---------------------------------------------------------------------------

    The increased fees for Internal and External Distributors are also 
equitable and reasonable in that they ensure that heavy users of the 
Multicast PITCH pay an equitable share of the total fees. The Exchange 
proposes to charge External Distributors lower fees than Internal 
Distributors to promote broader distribution of exchange data. The 
Exchange notes that External Distributors redistribute Multicast PITCH 
to those outside of their organization while Internal Distributors 
distribute Multicast PITCH within their own organization. Charging 
lower fees for external distribution should encourage Distributors, 
such as market data vendors who solely redistribute market data, to 
subscribe to Multicast PITCH as an External Distributor, therefore, 
expanding the distribution network of the Exchange's data.

(B) Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
result in any burden on competition that is not necessary or 
appropriate in furtherance of the purposes of the Act, as amended. The 
Exchange's ability to price Multicast PITCH are constrained by: (i) 
Competition among exchanges, other trading platforms, and Trade 
Reporting Facilities (``TRF'') that compete with each other in a 
variety of dimensions; (ii) the existence of inexpensive real-time 
consolidated data and market-specific data and free delayed data; and 
(iii) the inherent contestability of the market for proprietary data. 
This competitive pressure is evidenced by the Exchange's proposal to 
increase fees as described herein.
    The Exchange and its market data products are subject to 
significant competitive forces and the proposed fees represent 
responses to that competition. To start, the Exchange competes 
intensely for order flow. It competes with the other national 
securities exchanges that currently trade equities, with electronic 
communication networks, with quotes posted in FINRA's Alternative 
Display Facility, with alternative trading systems, and with securities 
firms that primarily trade as principal with their customer order flow.
    In addition, Multicast PITCH competes with a number of alternative 
products. For instance, Multicast PITCH do not provide a complete 
picture of all trading activity in a security. Rather, the other 
national securities exchanges, the several TRFs of FINRA, and 
Electronic Communication Networks (``ECN'') that produce proprietary 
data all produce trades and trade reports. Each is currently permitted 
to produce depth-of-book products, and many currently do, including 
Nasdaq and NYSE. In addition, market participants can gain access to 
BZX Options' last sale prices and top-of-book quotations, though 
integrated with the prices of other markets, on feeds made available 
through the SIPs.
    In sum, the availability of a variety of alternative sources of 
information imposes significant competitive pressures on the Exchange's 
data products and the Exchange's compelling need to attract order flow 
impose significant competitive pressure on the Exchange to act 
equitably, fairly, and reasonably in setting the proposed data product 
fees. The proposed data product fees are, in part, responses to that 
pressure. The Exchange believes that the proposed fees would reflect an 
equitable allocation of its overall costs to users of its facilities.
    In addition, when establishing the proposed fees, the Exchange 
considered the competitiveness of the market for proprietary data and 
all of the implications of that competition. The Exchange believes that 
it has considered all relevant factors and has not

[[Page 37274]]

considered irrelevant factors in order to establish fair, reasonable, 
and not unreasonably discriminatory fees and an equitable allocation of 
fees among all users. The existence of alternatives to Multicast PITCH, 
including existing similar feeds by other exchanges, consolidated data, 
and proprietary data from other sources, ensures that the Exchange 
cannot set unreasonable fees, or fees that are unreasonably 
discriminatory, when vendors and subscribers can elect these 
alternatives or choose not to purchase a specific proprietary data 
product if its cost to purchase is not justified by the returns any 
particular vendor or subscriber would achieve through the purchase.

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

    The Exchange has not solicited, and does not intend to solicit, 
comments on this proposed rule change. The Exchange has not received 
any written comments from members or other interested parties.

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 \17\ and paragraph (f) of Rule 19b-4 
thereunder.\18\ 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.
---------------------------------------------------------------------------

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

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 No. SR-BatsBZX-2017-48 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-BatsBZX-2017-48. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of such filing will also be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-BatsBZX-2017-48 and should 
be submitted on or before August 30, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-16738 Filed 8-8-17; 8:45 am]
 BILLING CODE 8011-01-P



                                                37272                       Federal Register / Vol. 82, No. 152 / Wednesday, August 9, 2017 / Notices

                                                SECURITIES AND EXCHANGE                                 places specified in Item IV below. The                 2. Statutory Basis
                                                COMMISSION                                              Exchange has prepared summaries, set                      The Exchange believes that the
                                                                                                        forth in Sections A, B, and C below, of                proposed rule change is consistent with
                                                [Release No. 34–81304; File No. SR–
                                                BatsBZX–2017–48]
                                                                                                        the most significant parts of such                     the objectives of Section 6 of the Act,9
                                                                                                        statements.                                            in general, and furthers the objectives of
                                                Self-Regulatory Organizations; Bats                     (A) Self-Regulatory Organization’s                     Section 6(b)(4),10 in particular, as it is
                                                BZX Exchange, Inc.; Notice of Filing                    Statement of the Purpose of, and                       designed to provide for the equitable
                                                and Immediate Effectiveness of a                        Statutory Basis for, the Proposed Rule                 allocation of reasonable dues, fees and
                                                Proposed Rule Change Related to Fees                    Change                                                 other charges among its members and
                                                for Use on Bats BZX Exchange, Inc.’s                                                                           other recipients of Exchange data. The
                                                Equity Options Platform                                 1. Purpose                                             Exchange believes that the proposed
                                                                                                           The Exchange proposes to modify the                 rates are equitable and non-
                                                August 3, 2017.
                                                                                                        fee schedule applicable to the                         discriminatory in that they apply
                                                   Pursuant to Section 19(b)(1) of the                  Exchange’s equity options platform                     uniformly to all recipients of Exchange
                                                Securities Exchange Act of 1934 (the                    (‘‘BZX Options’’) to increase the fees for             data. The Exchange believes the
                                                ‘‘Act’’),1 and Rule 19b–4 thereunder,2                  both Internal and External Distribution                proposed fees are competitive with
                                                notice is hereby given that on July 25,                 of its Multicast PITCH market data feed.               those charged by other venues and,
                                                2017 Bats BZX Exchange, Inc. (the                       Multicast PITCH is a market data                       therefore, reasonable and equitably
                                                ‘‘Exchange’’ or ‘‘BZX’’) filed with the                 product that offers depth of book                      allocated to recipients. Lastly, the
                                                Securities and Exchange Commission                      quotations and execution information                   Exchange also believes that the
                                                (‘‘Commission’’) the proposed rule                      based on options orders entered into the               proposed fees are reasonable and non-
                                                change as described in Items I, II and III              System.                                                discriminatory because they will apply
                                                below, which Items have been prepared                      The Exchange currently charges both                 uniformly to all recipients of Exchange
                                                by the Exchange. The Exchange has                       Internal Distributors 6 and External                   data.
                                                designated the proposed rule change as                  Distributors 7 of Multicast PITCH a fee                   The Exchange also believes that the
                                                one establishing or changing a member                   of $1,500 per month. The Exchange now                  proposed rule change is consistent with
                                                due, fee, or other charge imposed by the                proposes to increase this fee and to                   Section 11(A) of the Act 11 in that it
                                                Exchange under Section 19(b)(3)(A)(ii)                  charge Internal and External                           supports (i) fair competition among
                                                of the Act 3 and Rule 19b–4(f)(2)                       Distributors different rates. Specifically,            brokers and dealers, among exchange
                                                thereunder,4 which renders the                          the Exchange proposes to charge                        markets, and between exchange markets
                                                proposed rule change effective upon                     Internal Distributors of Multicast PITCH               and markets other than exchange
                                                filing with the Commission. The                         a fee of $3,000 per month and External                 markets; and (ii) the availability to
                                                Commission is publishing this notice to                 Distributors a fee of $2,000 per month.8               brokers, dealers, and investors of
                                                solicit comments on the proposed rule                   The Exchange also proposes to make                     information with respect to quotations
                                                change from interested persons.                         clear in its fee schedule that where a                 for and transactions in securities.
                                                I. Self-Regulatory Organization’s                       Distributor acts as both an External and               Furthermore, the proposed rule change
                                                Statement of the Terms of Substance of                  Internal Distributor of Multicast PITCH                is consistent with Rule 603 of
                                                the Proposed Rule Change                                that it will pay the greater of the two                Regulation NMS,12 which provides that
                                                                                                        Distribution fees for internal or external             any national securities exchange that
                                                   The Exchange filed a proposal to                     use and not be charged both fees each                  distributes information with respect to
                                                amend to amend its fees and rebates                     month.                                                 quotations for or transactions in an NMS
                                                applicable to Members 5 and non-                           The Exchange proposes to implement                  stock do so on terms that are not
                                                Members of the Exchange pursuant to                     these amendments to its fee schedule on                unreasonably discriminatory. In
                                                BZX Rules 15.1(a) and (c).                              August 1, 2017.                                        adopting Regulation NMS, the
                                                   The text of the proposed rule change                                                                        Commission granted self-regulatory
                                                is available at the Exchange’s Web site                    6 See Exchange Rule 21.15(b)(1). The term
                                                                                                                                                               organizations and broker-dealers
                                                at www.bats.com, at the principal office                ‘‘System’’ is defined as ‘‘the electronic              increased authority and flexibility to
                                                of the Exchange, and at the                             communications and trading facility designated by
                                                                                                        the Board through which securities orders of Users     offer new and unique market data to the
                                                Commission’s Public Reference Room.                     are consolidated for ranking, execution and, when      public. It was believed that this
                                                II. Self-Regulatory Organization’s                      applicable, routing away. A Distributor ‘‘is any       authority would expand the amount of
                                                                                                        entity that receives the Exchange Market Data          data available to consumers, and also
                                                Statement of the Purpose of, and                        product directly from the Exchange or indirectly
                                                Statutory Basis for, the Proposed Rule                  through another entity and then distributes it         spur innovation and competition for the
                                                Change                                                  internally or externally to a third party.’’ See the   provision of market data.
                                                                                                        Exchange’s fee schedule available at http://              In addition, the proposed fees would
                                                   In its filing with the Commission, the               www.bats.com/us/options/membership/fee_                not permit unfair discrimination
                                                Exchange included statements                            schedule/bzx/. An Internal Distributor of an
                                                                                                                                                               because all of the Exchange’s
                                                concerning the purpose of and basis for                 Exchange Market Data product is a Distributor that
                                                                                                        receives the Exchange Market Data product and          subscribers will be subject to the
                                                the proposed rule change and discussed                  then distributes that data to one or more Users        proposed fees on an equivalent basis.
                                                any comments it received on the                         within the Distributor’s own entity. Id.               The Multicast PITCH is distributed and
                                                proposed rule change. The text of these                    7 An External Distributor of an Exchange Market
                                                                                                                                                               purchased on a voluntary basis, in that
                                                statements may be examined at the                       Data product is a Distributor that receives the
                                                                                                        Exchange Market Data product and then distributes      neither the Exchange nor the market
sradovich on DSK3GMQ082PROD with NOTICES




                                                  1 15
                                                                                                        that data to a third party or one or more Users        data Distributors are required by any
                                                       U.S.C. 78s(b)(1).
                                                  2 17
                                                                                                        outside the Distributor’s own entity. Id.              rule or regulation to make this data
                                                       CFR 240.19b–4.                                      8 The Exchange issued a notice on June 1, 2017
                                                  3 15 U.S.C. 78s(b)(3)(A)(ii).
                                                                                                                                                               available. Accordingly, Distributors can
                                                                                                        describing the proposed fee increase. See Bats BZX
                                                  4 17 CFR 240.19b–4(f)(2).
                                                                                                        Options Fee Schedule Changes Effective July 3,          9 15
                                                  5 The term ‘‘Member’’ is defined as ‘‘any             2017 and August 1, 2017, available at http://                U.S.C. 78f.
                                                                                                                                                                10 15 U.S.C. 78f(b)(4).
                                                registered broker or dealer that has been admitted      cdn.batstrading.com/resources/fee_schedule/2017/
                                                                                                                                                                11 15 U.S.C. 78k–1.
                                                to membership in the Exchange.’’ See Exchange           Bats-BZX-Options-Fee-Schedule-Changes-Effective-
                                                Rule 1.5(n).                                            July-1-2017.pdf.                                        12 17 CFR 242.603.




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                                                                            Federal Register / Vol. 82, No. 152 / Wednesday, August 9, 2017 / Notices                                             37273

                                                discontinue their use at any time and for                   The proposed amendment to the                      Multicast PITCH are constrained by: (i)
                                                any reason, including due to an                          Internal Distributor fee for Multicast                Competition among exchanges, other
                                                assessment of the reasonableness of fees                 PITCH is also equitable and reasonable                trading platforms, and Trade Reporting
                                                charged. Firms have a wide variety of                    as, despite the increase, the proposed                Facilities (‘‘TRF’’) that compete with
                                                alternative market data products from                    fees continues to be similar to fees                  each other in a variety of dimensions;
                                                which to choose, such as similar                         currently charged by the Nasdaq Stock                 (ii) the existence of inexpensive real-
                                                proprietary data products offered by                     Market LLC (‘‘Nasdaq’’) for their options             time consolidated data and market-
                                                other exchanges and consolidated data.                   depth-of-book data product. Nasdaq                    specific data and free delayed data; and
                                                Moreover, the Exchange is not required                   currently charges external distributors               (iii) the inherent contestability of the
                                                to make any proprietary data products                    of ITTO,14 $2,000 per month.15 Nasdaq’s               market for proprietary data. This
                                                available or to offer any specific pricing               fee for external distribution is identical            competitive pressure is evidenced by
                                                alternatives to any customers.                           to that proposed by the Exchange                      the Exchange’s proposal to increase fees
                                                   In addition, the fees that are the                    herein. In addition, the Chicago Board                as described herein.
                                                subject of this rule filing are constrained              Options Exchange, Incorporated                           The Exchange and its market data
                                                by competition. As explained below in                    (‘‘CBOE’’) charges a monthly fee of                   products are subject to significant
                                                the Exchange’s Statement on Burden on                    $7,000 to internal and external                       competitive forces and the proposed
                                                Competition, the existence of                            distributors of its depth-of-book data.16             fees represent responses to that
                                                alternatives to the Multicast PITCH                         The increased fees for Internal and                competition. To start, the Exchange
                                                further ensures that the Exchange                        External Distributors are also equitable              competes intensely for order flow. It
                                                cannot set unreasonable fees, or fees                    and reasonable in that they ensure that               competes with the other national
                                                that are unreasonably discriminatory,                    heavy users of the Multicast PITCH pay                securities exchanges that currently trade
                                                when subscribers can elect such                          an equitable share of the total fees. The             equities, with electronic communication
                                                alternatives. That is, the Exchange                      Exchange proposes to charge External                  networks, with quotes posted in
                                                competes with other exchanges (and                       Distributors lower fees than Internal                 FINRA’s Alternative Display Facility,
                                                their affiliates) that provide similar                   Distributors to promote broader                       with alternative trading systems, and
                                                market data products. If another                         distribution of exchange data. The                    with securities firms that primarily
                                                exchange (or its affiliate) were to charge               Exchange notes that External                          trade as principal with their customer
                                                less to consolidate and distribute its                   Distributors redistribute Multicast                   order flow.
                                                similar product than the Exchange                        PITCH to those outside of their                          In addition, Multicast PITCH
                                                charges to consolidate and distribute the                organization while Internal Distributors              competes with a number of alternative
                                                Multicast PITCH, prospective users                       distribute Multicast PITCH within their               products. For instance, Multicast PITCH
                                                likely would not subscribe to, or would                  own organization. Charging lower fees                 do not provide a complete picture of all
                                                cease subscribing to the Multicast                       for external distribution should                      trading activity in a security. Rather, the
                                                PITCH.                                                   encourage Distributors, such as market                other national securities exchanges, the
                                                   The Exchange notes that the                           data vendors who solely redistribute                  several TRFs of FINRA, and Electronic
                                                Commission is not required to                            market data, to subscribe to Multicast                Communication Networks (‘‘ECN’’) that
                                                undertake a cost-of-service or rate-                     PITCH as an External Distributor,                     produce proprietary data all produce
                                                making approach. The Exchange                            therefore, expanding the distribution                 trades and trade reports. Each is
                                                believes that, even if it were possible as               network of the Exchange’s data.                       currently permitted to produce depth-
                                                a matter of economic theory, cost-based                                                                        of-book products, and many currently
                                                pricing for non-core market data would                   (B) Self-Regulatory Organization’s                    do, including Nasdaq and NYSE. In
                                                be so complicated that it could not be                   Statement on Burden on Competition                    addition, market participants can gain
                                                done practically.13                                        The Exchange does not believe that                  access to BZX Options’ last sale prices
                                                                                                         the proposed rule change will result in               and top-of-book quotations, though
                                                   13 The Exchange believes that cost-based pricing
                                                                                                         any burden on competition that is not                 integrated with the prices of other
                                                would be impractical because it would create                                                                   markets, on feeds made available
                                                enormous administrative burdens for all parties,
                                                                                                         necessary or appropriate in furtherance
                                                including the Commission, to cost-regulate a large       of the purposes of the Act, as amended.               through the SIPs.
                                                number of participants and standardize and analyze       The Exchange’s ability to price                          In sum, the availability of a variety of
                                                extraordinary amounts of information, accounts,                                                                alternative sources of information
                                                and reports. In addition, it is impossible to regulate                                                         imposes significant competitive
                                                                                                         also Securities Exchange Act Release No. 73816
                                                market data prices in isolation from prices charged
                                                by markets for other services that are joint products.
                                                                                                         (December 11, 2014), 79 FR 75200 (December 17,        pressures on the Exchange’s data
                                                                                                         2014) (SR–NYSE–2014–64) (Notice of Filing and         products and the Exchange’s compelling
                                                Cost-based rate regulation would also lead to
                                                                                                         Immediate Effectiveness of Proposed Rule Change
                                                litigation and may distort incentives, including
                                                                                                         to Establish an Access Fee for the NYSE Best Quote
                                                                                                                                                               need to attract order flow impose
                                                those to minimize costs and to innovate, leading to                                                            significant competitive pressure on the
                                                                                                         and Trades Data Feed, Operative December 1,
                                                further waste. Under cost-based pricing, the
                                                Commission would be burdened with determining
                                                                                                         2014).                                                Exchange to act equitably, fairly, and
                                                a fair rate of return, and the industry could
                                                                                                           14 ITTO stands for NASDAQ ITCH to Trade
                                                                                                                                                               reasonably in setting the proposed data
                                                experience frequent rate increases based on              Options, and is a data feed that provides quotation   product fees. The proposed data product
                                                escalating expense levels. Even in industries            information for individual orders on the NOM book,
                                                                                                         last sale information for trades executed on NOM,     fees are, in part, responses to that
                                                historically subject to utility regulation, cost-based
                                                ratemaking has been discredited. As such, the            and Order Imbalance Information as set forth in       pressure. The Exchange believes that the
                                                Exchange believes that cost-based ratemaking             NOM Rules Chapter VI, Section 8 [sic]. See Nasdaq     proposed fees would reflect an equitable
                                                would be inappropriate for proprietary market data       Sec. 4(a), NASDAQ Options Market Data Distributor     allocation of its overall costs to users of
                                                and inconsistent with Congress’s direction that the      Fees. Available at http://www.nasdaqtrader.com/
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                         Micro.aspx?id=optionsPricing.                         its facilities.
                                                Commission use its authority to foster the
                                                development of the national market system, and             15 See Nasdaq Sec. 4(a), NASDAQ Options Market         In addition, when establishing the
                                                that market forces will continue to provide              Data Distributor Fees. Available at http://           proposed fees, the Exchange considered
                                                appropriate pricing discipline. See Appendix C to        www.nasdaqtrader.com/Micro.aspx?id=options            the competitiveness of the market for
                                                NYSE’s comments to the Commission’s 2000                 Pricing.                                              proprietary data and all of the
                                                Concept Release on the Regulation of Market                16 See CBOE Market Data Express, LLC (MDX)

                                                Information Fees and Revenues, which can be              CBOE Streaming Markets Fee Schedule available at
                                                                                                                                                               implications of that competition. The
                                                found on the Commission’s Web site at http://            https://www.cboe.org/publish/mdxfees/mdxfee           Exchange believes that it has considered
                                                www.sec.gov/rules/concept/s72899/buck1.htm. See          scheduleforcboedatafeeds.pdf.                         all relevant factors and has not


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                                                37274                            Federal Register / Vol. 82, No. 152 / Wednesday, August 9, 2017 / Notices

                                                considered irrelevant factors in order to                  Commission, 100 F Street NE.,                          (‘‘Act’’) 1 and Rule 19b–4 thereunder,2
                                                establish fair, reasonable, and not                        Washington, DC 20549–1090.                             notice is hereby given that on July 31,
                                                unreasonably discriminatory fees and an                    All submissions should refer to File                   2017, The Depository Trust Company
                                                equitable allocation of fees among all                     Number SR–BatsBZX–2017–48. This file                   (‘‘DTC’’) filed with the Securities and
                                                users. The existence of alternatives to                    number should be included on the                       Exchange Commission (‘‘Commission’’)
                                                Multicast PITCH, including existing                        subject line if email is used. To help the             the proposed rule change as described
                                                similar feeds by other exchanges,                          Commission process and review your                     in Items I, II and III below, which Items
                                                consolidated data, and proprietary data                    comments more efficiently, please use                  have been prepared by the clearing
                                                from other sources, ensures that the                       only one method. The Commission will                   agency. DTC filed the proposed rule
                                                Exchange cannot set unreasonable fees,                     post all comments on the Commission’s                  change pursuant to Section 19(b)(3)(A)
                                                or fees that are unreasonably                              Internet Web site (http://www.sec.gov/                 of the Act 3 and Rule 19b–4(f)(4)
                                                discriminatory, when vendors and                           rules/sro.shtml). Copies of the                        thereunder.4 The Commission is
                                                subscribers can elect these alternatives                   submission, all subsequent                             publishing this notice to solicit
                                                or choose not to purchase a specific                       amendments, all written statements                     comments on the proposed rule change
                                                proprietary data product if its cost to                    with respect to the proposed rule                      from interested persons.
                                                purchase is not justified by the returns                   change that are filed with the                         I. Clearing Agency’s Statement of the
                                                any particular vendor or subscriber                        Commission, and all written                            Terms of Substance of the Proposed
                                                would achieve through the purchase.                        communications relating to the                         Rule Change
                                                (C) Self-Regulatory Organization’s                         proposed rule change between the                          DTC is filing this proposed rule
                                                Statement on Comments on the                               Commission and any person, other than                  change to (i) establish September 5,
                                                Proposed Rule Change Received From                         those that may be withheld from the                    2017 as the effective date (‘‘Effective
                                                Members, Participants or Others                            public in accordance with the                          Date’’) of the settlement cycle rule
                                                                                                           provisions of 5 U.S.C. 552, will be                    changes (‘‘T2 Changes’’) submitted
                                                  The Exchange has not solicited, and                      available for Web site viewing and
                                                does not intend to solicit, comments on                                                                           pursuant to rule filing SR–DTC–2016–
                                                                                                           printing in the Commission’s Public                    013 (‘‘Prior Rule Filing’’),5 (ii)
                                                this proposed rule change. The                             Reference Room, 100 F Street NE.,
                                                Exchange has not received any written                                                                             incorporate the T2 Changes into the
                                                                                                           Washington, DC 20549, on official                      DTC Settlement Service Guide
                                                comments from members or other                             business days between the hours of
                                                interested parties.                                                                                               (‘‘Settlement Guide’’) 6 and DTC
                                                                                                           10:00 a.m. and 3:00 p.m. Copies of such                Distributions Service Guide
                                                III. Date of Effectiveness of the                          filing will also be available for                      (‘‘Distributions Guide’’) 7 (collectively,
                                                Proposed Rule Change and Timing for                        inspection and copying at the principal                ‘‘Guides’’) as of the Effective Date, and
                                                Commission Action                                          office of the Exchange. All comments                   (iii) amend the legends (‘‘Legends’’) on
                                                                                                           received will be posted without change;                the respective cover pages of the Guides
                                                   The foregoing rule change has become
                                                                                                           the Commission does not edit personal                  in order to include the Effective Date
                                                effective pursuant to Section 19(b)(3)(A)
                                                                                                           identifying information from                           and self-eliminating language for the
                                                of the Act 17 and paragraph (f) of Rule
                                                                                                           submissions. You should submit only                    Legends, and remove the Legends’
                                                19b–4 thereunder.18 At any time within
                                                                                                           information that you wish to make                      current reference to DTC making a
                                                60 days of the filing of the proposed rule
                                                                                                           available publicly. All submissions                    subsequent rule filing with the
                                                change, the Commission summarily may
                                                                                                           should refer to File Number SR-                        Commission, as this proposal is that
                                                temporarily suspend such rule change if
                                                                                                           BatsBZX–2017–48 and should be                          subsequent rule filing.8
                                                it appears to the Commission that such
                                                                                                           submitted on or before August 30, 2017.
                                                action is necessary or appropriate in the                                                                         II. Clearing Agency’s Statement of the
                                                public interest, for the protection of                       For the Commission, by the Division of               Purpose of, and Statutory Basis for, the
                                                investors, or otherwise in furtherance of                  Trading and Markets, pursuant to delegated
                                                                                                           authority.19
                                                                                                                                                                  Proposed Rule Change
                                                the purposes of the Act.
                                                                                                           Eduardo A. Aleman,                                        In its filing with the Commission, the
                                                IV. Solicitation of Comments                               Assistant Secretary.                                   clearing agency included statements
                                                  Interested persons are invited to                        [FR Doc. 2017–16738 Filed 8–8–17; 8:45 am]
                                                                                                                                                                  concerning the purpose of and basis for
                                                submit written data, views, and                                                                                   the proposed rule change and discussed
                                                                                                           BILLING CODE 8011–01–P
                                                arguments concerning the foregoing,                                                                               any comments it received on the
                                                including whether the proposed rule                                                                               proposed rule change. The text of these
                                                                                                           SECURITIES AND EXCHANGE                                statements may be examined at the
                                                change is consistent with the Act.
                                                                                                           COMMISSION                                             places specified in Item IV below. The
                                                Comments may be submitted by any of
                                                the following methods:                                                                                              1 15 U.S.C. 78s(b)(1).
                                                                                                           [Release No. 34–81305; File No. SR–DTC–
                                                Electronic Comments                                                                                                 2 17 CFR 240.19b–4.
                                                                                                           2017–015]                                                3 15 U.S.C. 78s(b)(3)(A).
                                                  • Use the Commission’s Internet                                                                                   4 17 CFR 240.19b–4(f)(4).

                                                comment form (http://www.sec.gov/                          Self-Regulatory Organizations; The                       5 See Securities Exchange Act Release No. 79304

                                                rules/sro.shtml); or                                       Depository Trust Company; Notice of                    (November 14, 2016), 81 FR 81825 (November 18,
                                                  • Send an email to rule-comments@                        Filing and Immediate Effectiveness of                  2016) (SR–DTC–2016–013).
                                                                                                                                                                    6 Available at http://www.dtcc.com/∼/media/
                                                sec.gov. Please include File No. SR–                       Proposed Rule Change To Establish
                                                                                                                                                                  Files/Downloads/legal/service-guides/
sradovich on DSK3GMQ082PROD with NOTICES




                                                BatsBZX–2017–48 on the subject line.                       the Effective Date of the Settlement                   Settlement.pdf.
                                                                                                           Cycle Rule Changes                                       7 Available at http://www.dtcc.com/∼/media/
                                                Paper Comments                                                                                                    Files/Downloads/legal/service-guides/Distributions-
                                                  • Send paper comments in triplicate                      August 3, 2017.                                        Service-Guide-FINAL-January-2017.pdf.
                                                to Secretary, Securities and Exchange                        Pursuant to Section 19(b)(1) of the                    8 Capitalized terms not otherwise defined herein

                                                                                                           Securities Exchange Act of 1934                        have the respective meanings set forth in the DTC
                                                                                                                                                                  Rules, By-laws and Organization Certificate,
                                                  17 15   U.S.C. 78s(b)(3)(A).                                                                                    available at http://www.dtcc.com/∼/media/Files/
                                                  18 17   CFR 240.19b–4(f).                                  19 17   CFR 200.30–3(a)(12).                         Downloads/legal/rules/dtc_rules.pdf.



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Document Created: 2017-08-09 02:17:53
Document Modified: 2017-08-09 02:17:53
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation82 FR 37272 

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