[Federal Register Volume 84, Number 215 (Wednesday, November 6, 2019)]
[Notices]
[Pages 59889-59900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24187]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87432; File No. SR-PEARL-2019-33]


Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing 
and Immediate Effectiveness of a Proposed Rule Change To Amend the MIAX 
PEARL Fee Schedule

October 31, 2019.
    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 October 22, 2019, MIAX PEARL, LLC (``MIAX PEARL'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``Commission'') a 
proposed rule change as described in Items I, II, and III below, which 
Items have been prepared by the Exchange. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange is filing a proposal to amend the MIAX PEARL Fee 
Schedule (the ``Fee Schedule'') to modify certain of the Exchange's 
system connectivity fees.
    The Exchange previously filed the proposal on August 23, 2019 (SR-
PEARL-2019-25). That filing has been withdrawn and replaced with the 
current filing (SR-PEARL-2019-33).
    The text of the proposed rule change is available on the Exchange's 
website at http://www.miaxoptions.com/rule-filings/pearl at MIAX 
PEARL's principal office, and at the Commission's Public Reference 
Room.

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

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

[[Page 59890]]

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

1. Purpose
    The Exchange is refiling its proposal to amend the Fee Schedule in 
order to provide additional analysis of its baseline revenues, costs, 
and profitability (before the proposed fee change) and the Exchange's 
expected revenues, costs, and profitability (following the proposed fee 
change) for its network connectivity services. This additional analysis 
includes information regarding its methodology for determining the 
baseline costs and revenues, as well as expected costs and revenues, 
for its network connectivity services. The Exchange is also refiling 
its proposal in order to address certain points raised in the only 
comment letter received by the Commission on the Exchange's prior 
proposal to increase connectivity fees.\3\
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    \3\ See Letter from John Ramsay, Chief Market Policy Officer, 
Investors Exchange LLC (``IEX''), to Vanessa Countryman, Secretary, 
Commission, dated October 9, 2019 (``Third IEX Letter,'' as further 
described below).
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    In order to determine the Exchange's baseline costs associated with 
providing network connectivity services, the Exchange conducted an 
extensive cost review in which the Exchange analyzed every expense item 
in the Exchange's general expense ledger to determine whether each such 
expense relates to the provision of network connectivity services, and, 
if such expense did so relate, what portion (or percentage) of such 
expense actually supports the provision of network connectivity 
services. The sum of all such portions of expenses represents the total 
actual baseline cost of the Exchange to provide network connectivity 
services. (For the avoidance of doubt, no expense amount was allocated 
twice.) The Exchange is presenting the results of its cost review in a 
way that corresponds directly with the Exchange's 2018 Audited 
Unconsolidated Financial Statements, the relevant sections of which are 
attached [sic] hereto as Exhibit 3, which are publicly available as 
part of the Exchange's Form 1 Amendment.\4\ The purpose of presenting 
it in this manner is to provide greater transparency into the 
Exchange's actual and expected revenues, costs, and profitability 
associated with providing network connectivity services. Based on this 
analysis, the Exchange believes that its proposed fee increases are 
fair and reasonable because they will permit recovery of less than all 
of the Exchange's costs for providing the network connectivity services 
and will not result in excessive pricing or supra-competitive profit, 
when comparing the Exchange's total annual expense associated with 
providing the network connectivity services versus the total projected 
annual revenue the Exchange projects to collect for providing the 
network connectivity services.
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    \4\ See the complete Audited Unconsolidated Financial Statements 
of MIAX PEARL, LLC, LLC as of December 31, 2018, and the Audited 
Unconsolidated Financial Statements of Miami International 
Securities Exchange, LLC as of December 31, 2018, which are listed 
under Exhibit D of MIAX Form 1 Amendment 2019-7 Annual Filing at 
https://www.sec.gov/Archives/edgar/vprr/1900/19003680.pdf.
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    Specifically, the Exchange proposes to amend Sections 5(a) and (b) 
of the Fee Schedule to increase the network connectivity fees for the 1 
Gigabit (``Gb'') fiber connection, the 10Gb fiber connection, and the 
10Gb ultra-low latency (``ULL'') fiber connection, which are charged to 
both Members \5\ and non-Members of the Exchange for connectivity to 
the Exchange's primary/secondary facility. The Exchange also proposes 
to increase the network connectivity fees for the 1Gb and 10Gb fiber 
connections for connectivity to the Exchange's disaster recovery 
facility. Each of these connections are shared connections, and thus 
can be utilized to access both the Exchange and the Exchange's 
affiliate, Miami International Securities Exchange, LLC (``MIAX''). 
These proposed fee increases are collectively referred to herein as the 
``Proposed Fee Increases.''
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    \5\ The term ``Member'' means an individual or organization that 
is registered with the Exchange pursuant to Chapter II of the 
Exchange's Rules for purposes of trading on the Exchange as an 
``Electronic Exchange Member'' or ``Market Maker.'' Members are 
deemed ``members'' under the Exchange Act. See Exchange Rule 100.
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    The Exchange initially filed the Proposed Fee Increases on July 31, 
2018, designating the Proposed Fee Increases effective August 1, 
2018.\6\ The First Proposed Rule Change was published for comment in 
the Federal Register on August 13, 2018.\7\ The Commission received one 
comment letter on the proposal.\8\ The Proposed Fee Increases remained 
in effect until they were temporarily suspended pursuant to a 
suspension order (the ``Suspension Order'') issued by the Commission on 
September 17, 2018.\9\ The Suspension Order also instituted proceedings 
to determine whether to approve or disapprove the First Proposed Rule 
Change.\10\
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    \6\ See Securities Exchange Act Release No. 83785 (August 7, 
2018), 83 FR 40101 (August 13, 2018) (SR-PEARL-2018-16) (the ``First 
Proposed Rule Change'').
    \7\ Id.
    \8\ See Letter from Tyler Gellasch, Executive Director, The 
Healthy Markets Association, to Brent J. Fields, Secretary, 
Commission, dated September 4, 2018 (``Healthy Markets Letter'').
    \9\ See Securities Exchange Act Release No. 34-84177 (September 
17, 2018).
    \10\ Id.
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    The Healthy Markets Letter argued that the Exchange did not provide 
sufficient information in its filing to support a finding that the 
proposal is consistent with the Act. Specifically, the Healthy Markets 
Letter objected to the Exchange's reliance on the fees of other 
exchanges to demonstrate that its fee increases are consistent with the 
Act. In addition, the Healthy Markets Letter argued that the Exchange 
did not offer any details to support its basis for asserting that the 
Proposed Fee Increases are consistent with the Act.
    On October 5, 2018, the Exchange withdrew the First Proposed Rule 
Change.\11\ The Exchange refiled the Proposed Fee Increases on 
September 18, 2018, designating the Proposed Fee Increases immediately 
effective.\12\ The Second Proposed Rule Change was published for 
comment in the Federal Register on October 10, 2018.\13\ The Commission 
received one comment letter on the proposal.\14\ The Proposed Fee 
Increases remained in effect until they were temporarily suspended 
pursuant to a suspension order (the ``Second Suspension Order'') issued 
by the Commission on October 3, 2018.\15\ The Second Suspension Order 
also instituted proceedings to determine whether to approve or 
disapprove the Second Proposed Rule Change.\16\
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    \11\ See Securities Exchange Act Release No. 84397 (October 10, 
2018), 83 FR 52272 (October 16, 2018) (SR-PEARL-2018-16).
    \12\ See Securities Exchange Act Release No. 84358 (October 3, 
2018), 83 FR 51022 (October 10, 2018) (SR-PEARL-2018-19) (the 
``Second Proposed Rule Change'').
    \13\ Id.
    \14\ See Letter from Theodore R. Lazo, Managing Director and 
Associate General Counsel, and Ellen Greene, Managing Director 
Financial Services Operations, The Securities Industry and Financial 
Markets Association (``SIFMA''), to Brent J. Fields, Secretary, 
Commission, dated October 15, 2018 (``SIFMA Letter'').
    \15\ See supra note 12.
    \16\ Id.
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    The SIFMA Letter argued that the Exchange did not provide 
sufficient information in its filing to support a finding that the 
proposal should be approved by the Commission after further review of 
the proposed fee increases. Specifically, the SIFMA Letter objected to 
the Exchange's reliance on the fees of other exchanges to justify its 
own fee increases. In addition, the SIFMA Letter argued that the 
Exchange did not offer any details

[[Page 59891]]

to support its basis for asserting that the Proposed Fee Increases are 
reasonable. On November 23, 2018, the Exchange withdrew the Second 
Proposed Rule Change.\17\
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    \17\ See Securities Exchange Act Release No. 84651 (November 26, 
2018), 83 FR 61687 (November 30, 2018) (SR-PEARL-2018-19).
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    The Exchange refiled the Proposed Fee Increases on March 1, 2019, 
designating the Proposed Fee Increases immediately effective.\18\ The 
Third Proposed Rule Change was published for comment in the Federal 
Register on March 20, 2019.\19\ The Third Proposed Rule Change provided 
new information, including additional detail about the market 
participants impacted by the Proposed Fee Increases, as well as the 
additional costs incurred by the Exchange associated with providing the 
connectivity alternatives, in order to provide more transparency and 
support relating to the Exchange's belief that the Proposed Fee 
Increases are reasonable, equitable, and non-discriminatory, and to 
provide sufficient information for the Commission to determine that the 
Proposed Fee Increases are consistent with the Act.
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    \18\ See Securities Exchange Act Release No. 85317 (March 14, 
2019), 84 FR 10380 (March 20, 2019) (SR-PEARL-2019-08) (the ``Third 
Proposed Rule Change'') (Notice of Filing and Immediate 
Effectiveness of a Proposed Rule Change To Amend the MIAX PEARL Fee 
Schedule).
    \19\ Id.
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    On March 29, 2019, the Commission issued its Order Disapproving 
Proposed Rule Changes to Amend the Fee Schedule on the BOX Market LLC 
Options Facility to Establish BOX Connectivity Fees for Participants 
and Non-Participants Who Connect to the BOX Network (the ``BOX 
Order'').\20\ In the BOX Order, the Commission highlighted a number of 
deficiencies it found in three separate rule filings by BOX Exchange 
LLC (``BOX'') to increase BOX's connectivity fees that prevented the 
Commission from finding that BOX's proposed connectivity fees were 
consistent with the Act. These deficiencies relate to topics that the 
Commission believes should be discussed in a connectivity fee filing.
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    \20\ See Securities Exchange Act Release No. 85459 (March 29, 
2019), 84 FR 13363 (April 4, 2019) (SR-BOX-2018-24, SR-BOX-2018-37, 
and SR-BOX-2019-04).
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    After the BOX Order was issued, the Commission received four 
comment letters on the Third Proposed Rule Change.\21\
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    \21\ See Letter from Joseph W. Ferraro III, SVP & Deputy General 
Counsel, MIAX, to Vanessa Countryman, Acting Secretary, Commission, 
dated April 5, 2019 (``MIAX Letter''); Letter from Theodore R. Lazo, 
Managing Director and Associate General Counsel, SIFMA, to Vanessa 
Countryman, Acting Secretary, Commission, dated April 10, 2019 
(``Second SIFMA Letter''); Letter from John Ramsay, Chief Market 
Policy Officer, IEX, to Vanessa Countryman, Acting Secretary, 
Commission, dated April 10, 2019 (``IEX Letter''); and Letter from 
Tyler Gellasch, Executive Director, Healthy Markets, to Brent J. 
Fields, Secretary, Commission, dated April 18, 2019 (``Second 
Healthy Markets Letter'').
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    The Second SIFMA Letter argued that the Exchange did not provide 
sufficient information in its Third Proposed Rule Change to support a 
finding that the proposal should be approved by the Commission after 
further review of the proposed fee increases. Specifically, the Second 
SIFMA Letter argued that the Exchange's market data fees and 
connectivity fees were not constrained by competitive forces, the 
Exchange's filing lacked sufficient information regarding cost and 
competition, and that the Commission should establish a framework for 
determining whether fees for exchange products and services are 
reasonable when those products and services are not constrained by 
significant competitive forces.
    The IEX Letter argued that the Exchange did not provide sufficient 
information in its Third Proposed Rule Change to support a finding that 
the proposal should be approved by the Commission and that the 
Commission should extend the time for public comment on the Third 
Proposed Rule Change. Despite the objection to the Proposed Fee 
Increases, the IEX Letter did find that ``MIAX has provided more 
transparency and analysis in these filings than other exchanges have 
sought to do for their own fee increases.'' \22\ The IEX Letter 
specifically argued that the Proposed Fee Increases were not 
constrained by competition, the Exchange should provide data on the 
Exchange's actual costs and how those costs relate to the product or 
service in question, and whether and how MIAX considered changes to 
transaction fees as an alternative to offsetting exchange costs.
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    \22\ See IEX Letter, pg. 1.
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    The Second Healthy Markets Letter did not object to the Third 
Proposed Rule Change and the information provided by the Exchange in 
support of the Proposed Fee Increases. Specifically, the Second Healthy 
Markets Letter stated that the Third Proposed Rule Change was 
``remarkably different,'' and went on to further state as follows:

    The instant MIAX filings--along with their April 5th 
supplement--provide much greater detail regarding users of 
connectivity, the market for connectivity, and costs than the 
Initial MIAX Filings. They also appear to address many of the issues 
raised by the Commission staff's BOX disapproval order. This third 
round of MIAX filings suggests that MIAX is operating in good faith 
to provide what the Commission and staff seek.\23\

    \23\ See Second Healthy Markets Letter, pg. 2.
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    On April 29, 2019, the Exchange withdrew the Third Proposed Rule 
Change.\24\
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    \24\ See SR-PEARL-2019-08.
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    The Exchange refiled the Proposed Fee Increases on April 30, 2019, 
designating the Proposed Fee Increases immediately effective.\25\ The 
Fourth Proposed Rule Change was published for comment in the Federal 
Register on May 16, 2019.\26\ The Fourth Proposed Rule Change provided 
further cost analysis information to squarely and comprehensively 
address each and every topic raised for discussion in the BOX Order, 
the IEX Letter and the Second SIFMA Letter to ensure that the Proposed 
Fee Increases are reasonable, equitable, and non-discriminatory, and 
that the Commission should find that the Proposed Fee Increases are 
consistent with the Act.
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    \25\ See Securities Exchange Act Release No. 85837 (May 10, 
2019), 84 FR 22214 (May 16, 2019) (SR-PEARL-2019-17) (the ``Fourth 
Proposed Rule Change'') (Notice of Filing and Immediate 
Effectiveness of a Proposed Rule Change To Amend the MIAX PEARL Fee 
Schedule).
    \26\ Id.
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    On May 21, 2019, the Commission issued the Staff Guidance on SRO 
Rule Filings Relating to Fees.\27\
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    \27\ See Staff Guidance on SRO Rule Filings Relating to Fees 
(May 21, 2019), at https://www.sec.gov/tm/staff-guidance-sro-rule-filings-fees (the ``Guidance'').
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    The Commission received two comment letters on the Fourth Proposed 
Rule Change, after the Guidance was released.\28\ The Second IEX Letter 
and the Third SIFMA Letter argued that the Exchange did not provide 
sufficient information in its Fourth Proposed Rule Change to justify 
the Proposed Fee Increases based on the Guidance and the BOX Order. Of 
note, however, is that unlike their previous comment letter, the Third 
SIFMA Letter did not call for the Commission to suspend the Fourth 
Proposed Rule Change. Also, Healthy Markets did not comment on the 
Fourth Proposed Rule Change.
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    \28\ See Letter from John Ramsay, Chief Market Policy Officer, 
Investors Exchange LLC, to Vanessa Countryman, Acting Secretary, 
Commission, dated June 5, 2019 (the ``Second IEX Letter'') and 
Letter from Theodore R. Lazo, Managing Director and Associate 
General Counsel, and Ellen Greene, Managing Director, SIFMA, to 
Vanessa Countryman, Acting Secretary, Commission, dated June 6, 2019 
(the ``Third SIFMA Letter'').
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    On June 26, 2019, the Exchange withdrew the Fourth Proposed Rule 
Change.\29\
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    \29\ See SR-PEARL-2019-17.
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    The Exchange refiled the Proposed Fee Increases on June 26, 2019, 
designating the Proposed Fee Increases

[[Page 59892]]

immediately effective.\30\ The Fifth Proposed Rule Change was published 
for comment in the Federal Register on July 16, 2019.\31\ The Fifth 
Proposed Rule Change bolstered the Exchange's previous cost-based 
discussion to support its claim that the Proposed Fee Increases are 
fair and reasonable because they will permit recovery of the Exchange's 
costs and will not result in excessive pricing or supra-competitive 
profit, in light of the Guidance issued by Commission staff subsequent 
to the Fourth Proposed Rule Change, and primarily through the inclusion 
of anticipated revenue figures associated with the provision of network 
connectivity services.
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    \30\ See Securities Exchange Act Release No. 86343 (July 10, 
2019), 84 FR 34003 (July 16, 2019) (SR-PEARL-2019-21) (the ``Fifth 
Proposed Rule Change'').
    \31\ Id.
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    The Commission received three comment letters on the Fifth Proposed 
Rule Change.\32\
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    \32\ See Letter from John Ramsay, Chief Market Policy Officer, 
IEX, to Vanessa Countryman, Acting Secretary, Commission, dated 
August 8, 2019 (``Third IEX Letter''); Letter from Tyler Gellasch, 
Executive Director, Healthy Markets, to Vanessa Countryman, Acting 
Secretary, Commission, dated August 5, 2019 (``Third Healthy Markets 
Letter''); and Letter from Theodore R. Lazo, Managing Director and 
Associate General Counsel and Ellen Greene, Managing Director 
Financial Services Operations, SIFMA, to Vanessa Countryman, Acting 
Secretary, Commission, dated August 5, 2019 (``Fourth SIFMA 
Letter'').
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    Neither the Third Healthy Markets Letter nor the Fourth SIFMA 
Letter called for the Commission to suspend or disapprove the Proposed 
Fee Increases. In fact, the Third Healthy Markets Letter acknowledged 
that ``it appears as though MIAX [PEARL] is operating in good faith to 
provide what the Commission, its staff, and market participants the 
information needed to appropriately assess the filings.'' The Third IEX 
Letter only reiterated points from the Second IEX Letter and failed to 
address any of the new information in the Fifth Proposed Rule Change 
concerning the Exchange's revenue figures, cost allocation or that the 
Proposed Fee Increases did not result in excessive pricing or a supra-
competitive profit for the Exchange.
    On August 23, 2019, the Exchange withdrew the Fifth Proposed Rule 
Change.\33\
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    \33\ See SR-PEARL-2019-21.
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    The Exchange refiled the Proposed Fee Increases on August 23, 2019, 
designating the Proposed Fee Increases immediately effective.\34\ The 
Sixth Proposed Rule Change was published for comment in the Federal 
Register on July 16, 2019.\35\ The Sixth Proposed Rule Change provided 
greater detail and clarity concerning the Exchange's cost methodology 
as it pertains to the Exchange's expenses for network connectivity 
services, using a line-by-line analysis of the Exchange's general 
expense ledger to determine what, if any, portion of those expenses 
supports the provision of network connectivity services.
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    \34\ See Securities Exchange Act Release No. 86837 (August 30, 
2019), 84 FR 46988 (September 6, 2019) (SR-PEARL-2019-25) (the 
``Sixth Proposed Rule Change'').
    \35\ Id.
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    The Commission received only one comment letter on the Sixth 
Proposed Rule Change, twelve days after the comment period deadline 
ended.\36\ Of note, no member of the Exchange commented on the Sixth 
Proposed Rule Change. Also, no issuer or other person using the 
facilities of the Exchange commented on the Sixth Proposed Rule Change. 
Also, no industry group that represents members, issuers, or other 
persons using the facilities of the Exchange commented on the Sixth 
Proposed Rule Change. Also, no operator of an options market commented 
on the Sixth Proposed Rule Change. Also, no operator of a high 
performance, ultra-low latency network, which network can support 
access to three distinct exchanges and provides premium network 
monitoring and reporting services to customers, commented on the Sixth 
Proposed Rule Change. Rather, the only comment letter came from an 
operator of a single equities market (equities market structure and 
resulting network demands are fundamentally different from those in the 
options markets),\37\ which operator also has a fundamentally different 
business model (and agenda) than does the Exchange. That letter--the 
Third IEX Letter--called for, among other things, the Exchange to 
explain its basis for concluding that it incurred substantially higher 
costs to provide lower-latency connections and further describe the 
nature and closeness of the relationship between the identified costs 
and connectivity products and services as stated in the Exchange's cost 
allocation analysis.
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    \36\ See supra note 3.
    \37\ See infra pages 17 to 19 (describing the differences in 
equity market structure and options market structure).
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    On October 22, 2019, the Exchange withdrew the Sixth Proposed Rule 
Change.\38\
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    \38\ See SR-PEARL-2019-25.
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    The Exchange is now refiling the Proposed Fee Increases to provide 
additional analysis of its baseline revenues, costs, and profitability 
(before the proposed fee change) and the Exchange's expected revenues, 
costs, and profitability (following the proposed fee change) for its 
network connectivity services. This additional analysis includes 
information regarding its methodology for determining the baseline 
costs and revenues, as well as expected costs and revenues, for its 
network connectivity services. The Exchange is also refiling its 
proposal in order to address certain points raised in the Third IEX 
Letter. The Exchange believes that the Proposed Fee Increases are 
consistent with the Act because they (i) are reasonable, equitably 
allocated, not unfairly discriminatory, and not an undue burden on 
competition; (ii) comply with the BOX Order and the Guidance; (iii) are 
supported by evidence (including data and analysis), constrained by 
significant competitive forces; and (iv) are supported by specific 
information (including quantitative information), fair and reasonable 
because they will permit recovery of the Exchange's costs (less than 
all) and will not result in excessive pricing or supra-competitive 
profit. Accordingly, the Exchange believes that the Commission should 
find that the Proposed Fee Increases are consistent with the Act. The 
proposed rule change is immediately effective upon filing with the 
Commission pursuant to Section 19(b)(3)(A) of the Act.
    The Exchange currently offers various bandwidth alternatives for 
connectivity to the Exchange to its primary and secondary facilities, 
consisting of a 1Gb fiber connection, a 10Gb fiber connection, and a 
10Gb ULL fiber connection. The 10Gb ULL offering uses an ultra-low 
latency switch, which provides faster processing of messages sent to it 
in comparison to the switch used for the other types of connectivity. 
The Exchange currently assesses the following monthly network 
connectivity fees to both Members and non-Members for connectivity to 
the Exchange's primary/secondary facility: (a) $1,100 for the 1Gb 
connection; (b) $5,500 for the 10Gb connection; and (c) $8,500 for the 
10Gb ULL connection. The Exchange also assesses to both Members and 
non-Members a monthly per connection network connectivity fee of $500 
for each 1Gb connection to the disaster recovery facility and a monthly 
per connection network connectivity fee of $2,500 for each 10Gb 
connection to the disaster recovery facility.
    The Exchange's MIAX Express Network Interconnect (``MENI'') can be 
configured to provide Members and non-Members of the Exchange network 
connectivity to the trading platforms, market data systems, test 
systems, and

[[Page 59893]]

disaster recovery facilities of both the Exchange and its affiliate, 
MIAX, via a single, shared connection. Members and non-Members 
utilizing the MENI to connect to the trading platforms, market data 
systems, test systems and disaster recovery facilities of the Exchange 
and MIAX via a single, shared connection are assessed only one monthly 
network connectivity fee per connection, regardless of the trading 
platforms, market data systems, test systems, and disaster recovery 
facilities accessed via such connection.
    The Exchange proposes to increase the monthly network connectivity 
fees for such connections for both Members and non-Members. The network 
connectivity fees for connectivity to the Exchange's primary/secondary 
facility will be increased as follows: (a) From $1,100 to $1,400 for 
the 1Gb connection; (b) from $5,500 to $6,100 for the 10Gb connection; 
and (c) from $8,500 to $9,300 for the 10Gb ULL connection. The network 
connectivity fees for connectivity to the Exchange's disaster recovery 
facility will be increased as follows: (a) from $500 to $550 for the 
1Gb connection; and (b) from $2,500 to $2,750 for the 10Gb connection.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule 
is consistent with Section 6(b) of the Act \39\ in general, and 
furthers the objectives of Section 6(b)(4) of the Act \40\ in 
particular, in that it provides for the equitable allocation of 
reasonable dues, fees and other charges among Exchange Members and 
issuers and other persons using any facility or system which the 
Exchange operates or controls. The Exchange also believes the proposal 
furthers the objectives of Section 6(b)(5) of the Act \41\ in that it 
is designed to promote just and equitable principles of trade, 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 and is not designed to permit unfair 
discrimination between customer, issuers, brokers and dealers.
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    \39\ 15 U.S.C. 78f(b).
    \40\ 15 U.S.C. 78f(b)(4).
    \41\ 15 U.S.C. 78f(b)(5).
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    The Commission has repeatedly expressed its preference for 
competition over regulatory intervention in determining prices, 
products, and services in the securities markets. 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.'' \42\
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    \42\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37496 (June 29, 2005).
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    The Exchange believes that its proposal is consistent with Section 
6(b)(4) of the Act, in that the Proposed Fee Increases are fair, 
equitable and not unreasonably discriminatory, because the fees for the 
connectivity alternatives available on the Exchange, as proposed to be 
increased, are constrained by significant competitive forces. The U.S. 
options markets are highly competitive (there are currently 16 options 
markets) and a reliance on competitive markets is an appropriate means 
to ensure equitable and reasonable prices.
    The Exchange acknowledges that there is no regulatory requirement 
that any market participant connect to the Exchange, or that any 
participant connect at any specific connection speed. The rule 
structure for options exchanges are, in fact, fundamentally different 
from those of equities exchanges. In particular, options market 
participants are not forced to connect to (and purchase market data 
from) all options exchanges, as shown by the number of Members of MIAX 
PEARL as compared to the much greater number of members at other 
options exchanges (as further detailed below). Not only does MIAX PEARL 
have less than half the number of members as certain other options 
exchanges, but there are also a number of the Exchange's Members that 
do not connect directly to MIAX PEARL. Further, of the number of 
Members that connect directly to MIAX PEARL, many such Members do not 
purchase market data from MIAX PEARL. There are a number of large 
market makers and broker-dealers that are members of other options 
exchange but not Members of MIAX PEARL. For example, the following are 
not Members of MIAX PEARL: The D.E. Shaw Group, CTC, XR Trading LLC, 
Hardcastle Trading AG, Ronin Capital LLC, Belvedere Trading, LLC, 
Bluefin Trading, and HAP Capital LLC. In addition, of the market makers 
that are connected to MIAX PEARL, it is the individual needs of the 
market maker that require whether they need one connection or multiple 
connections to the Exchange. The Exchange has market maker Members that 
only purchase one connection (10Gb or 10Gb ULL) and the Exchange has 
market maker Members that purchase multiple connections. It is all 
driven by the business needs of the market maker. Market makers that 
are consolidators that target resting order flow tend to purchase more 
connectivity than Market Makers that simply quote all symbols on the 
Exchange. Even though non-Members purchase and resell 10Gb and 10Gb ULL 
connections to both Members and non-Members, no market makers currently 
connect to the Exchange indirectly through such resellers.
    The argument that all broker-dealers are required to connect to all 
exchanges is not true in the options markets. The options markets have 
evolved differently than the equities markets both in terms of market 
structure and functionality. For example, there are many order types 
that are available in the equities markets that are not utilized in the 
options markets, which relate to mid-point pricing and pegged pricing 
which require connection to the SIPs and each of the equities exchanges 
in order to properly execute those orders in compliance with best 
execution obligations. In addition, in the options markets there is a 
single SIP (OPRA) versus two SIPs in the equities markets, resulting in 
fewer hops and thus alleviating the need to connect directly to all the 
options exchanges. Additionally, in the options markets, the linkage 
routing and trade through protection are handled by the exchanges, not 
by the individual members. Thus not connecting to an options exchange 
or disconnecting from an options exchange does not potentially subject 
a broker-dealer to violate order protection requirements. Gone are the 
days when the retail brokerage firms (the Fidelity's, the Schwab's, the 
eTrade's) were members of the options exchanges--they are not members 
of MIAX PEARL or its affiliates, MIAX and MIAX Emerald, they do not 
purchase connectivity to MIAX PEARL, and they do not purchase market 
data from MIAX PEARL. The Exchange further recognizes that the decision 
of whether to connect to the Exchange is separate and distinct from the 
decision of whether and how to trade on the Exchange. The Exchange 
acknowledges that many firms may choose to connect to the Exchange, but 
ultimately not trade on it, based on their particular business needs.
    To assist prospective Members or firms considering connecting to 
MIAX PEARL, the Exchange provides information about the Exchange's 
available connectivity alternatives in a Connectivity Guide, which 
contains detailed specifications regarding, among other things, 
throughput and latency for

[[Page 59894]]

each available connection.\43\ The decision of which type of 
connectivity to purchase, or whether to purchase connectivity at all 
for a particular exchange, is based on the business needs of the firm. 
For example, if the firm wants to receive the top-of-market data feed 
product or depth data feed product, due to the amount/size of data 
contained in those feeds, such firm would need to purchase either the 
10Gb or 10Gb ULL connection. The 1Gb connection is too small to support 
those data feed products. MIAX PEARL notes that there are twelve (12) 
Members that only purchase the 1Gb connectivity alternative. Thus, 
while there is a meaningful percentage of purchasers of only 1Gb 
connections (12 of 33), by definition, those twelve (12) members 
purchase connectivity that cannot support the top-of-market data feed 
product or depth data feed product and thus they do not purchase such 
data feed products. Accordingly, purchasing market data is a business 
decision/choice, and thus the pricing for it is constrained by 
competition.
---------------------------------------------------------------------------

    \43\ See the MIAX Connectivity Guide at https://www.miaxoptions.com/sites/default/files/page-files/MIAX_Connectivity_Guide_v3.6_01142019.pdf.
---------------------------------------------------------------------------

    There is competition for connectivity to MIAX PEARL and its 
affiliates. MIAX PEARL competes with nine (9) non-Members who resell 
MIAX PEARL connectivity. These are resellers of MIAX PEARL 
connectivity--they are not arrangements between broker-dealers to share 
connectivity costs. Those non-Members resell that connectivity to 
multiple market participants over that same connection, including both 
Members and non-Members of MIAX PEARL (typically extranets and service 
bureaus). When connectivity is re-sold by a third-party, MIAX PEARL 
does not receive any connectivity revenue from that sale. It is 
entirely between the third-party and the purchaser, thus constraining 
the ability of MIAX PEARL to set its connectivity pricing as indirect 
connectivity is a substitute for direct connectivity. There are 
currently nine (9) non-Members that purchase connectivity to MIAX PEARL 
and/or MIAX. Those non-Members resell that connectivity to eleven (11) 
customers, some of whom are agency broker-dealers that have tens of 
customers of their own. Some of those eleven (11) customers also 
purchase connectivity directly from MIAX PEARL and/or MIAX. 
Accordingly, indirect connectivity is a viable alternative that is 
already being used by non-Members of MIAX PEARL, constraining the price 
that MIAX PEARL is able to charge for connectivity to its Exchange.
    The Exchange \44\ and MIAX \45\ are comprised of 41 distinct 
Members between the two exchanges, excluding any additional affiliates 
of such Members that are also Members of MIAX PEARL, MIAX, or both. Of 
those 41 distinct Members, 33 Members have purchased the 1Gb, 10Gb, 
10Gb ULL connections or some combination of multiple various 
connections. Furthermore, every Member who has purchased at least one 
connection also trades on the Exchange, MIAX, or both. The 8 remaining 
Members who have not purchased any connectivity to the Exchange are 
still able to trade on the Exchange indirectly through other Members or 
non-Member service bureaus that are connected. These 8 Members who have 
not purchased connectivity are not forced or compelled to purchase 
connectivity, and they retain all of the other benefits of Membership 
with the Exchange. Accordingly, Members have the choice to purchase 
connectivity and are not compelled to do so in any way.
---------------------------------------------------------------------------

    \44\ MIAX PEARL has 36 distinct Members, excluding affiliated 
entities. See MIAX PEARL Exchange Member Directory, available at 
https://www.miaxoptions.com/exchange-members/pearl.
    \45\ MIAX has 38 distinct Members, excluding affiliated 
entities. See MIAX Exchange Member Directory, available at https://www.miaxoptions.com/exchange-members.
---------------------------------------------------------------------------

    The Exchange believes that the Proposed Fee Increases are fair, 
equitable and not unreasonably discriminatory because the connectivity 
pricing is directly related to the relative costs to the Exchange to 
provide those respective services, and does not impose a barrier to 
entry to smaller participants. Accordingly, the Exchange offers three 
direct connectivity alternatives and various indirect connectivity (via 
third-party) alternatives, as described above. MIAX PEARL recognizes 
that there are various business models and varying sizes of market 
participants conducting business on the Exchange. The 1Gb direct 
connectivity alternative is 1/10th the size of the 10Gb direct 
connectivity alternative. Because it is 1/10th of the size, it does not 
offer access to many of the products and services offered by the 
Exchange, such as the ability to quote or receive certain market data 
products. Approximately just less than half of MIAX PEARL and MIAX 
Members that connect (14 out of 33) purchase 1Gb connections. The 1Gb 
direct connection can support the sending of orders and the consumption 
of all market data feed products, other than the top-of-market data 
feed product or depth data feed product (which require a 10Gb 
connection). The 1Gb direct connection is generally purchased by market 
participants that utilize less bandwidth and also generally do not 
require the high touch network support services provided by the 
Exchange. Accordingly, these connections consume the least resources of 
the Exchange and are the least costly to the Exchange to provide. The 
market participants that purchase 10Gb ULL direct connections utilize 
the most bandwidth and also generally do require the high touch network 
support services provided by the Exchange. Accordingly, these 
connections consume the most resources of the Exchange and are the most 
costly to the Exchange to provide. Accordingly, the Exchange believes 
the allocation of the Proposed Fee Increases ($9,300 for a 10Gb ULL 
connection versus $1,400 for a 1Gb connection) are reasonable based on 
the resources consumed by the respective type of connection--lowest 
resource consuming members pay the least, and highest resource 
consuming members pays the most, particularly since higher resource 
consumption translates directly to higher costs to the Exchange. The 
10Gb ULL connection offers optimized connectivity for latency sensitive 
participants and is approximately single digit microseconds faster in 
round trip time for connection oriented traffic to the Exchange than 
the 10Gb connection. This lower latency is achieved through more 
advanced network equipment, such as advanced hardware and switching 
components, which translates to increased costs to the Exchange. Market 
participants that are less latency sensitive can purchase 10Gb direct 
connections and quote in all products on the Exchange and consume all 
market data feeds, and such 10Gb direct connections are priced lower 
than the 10Gb ULL direct connections, offering smaller sized market 
makers a lower cost alternative. 10Gb connections are less costly to 
provide than 10Gb ULL connections, which require greater network 
support services.
    With respect to options trading, the Exchange had only 5.30% market 
share of the U.S. options industry in Equity/Exchange Traded Fund 
(``ETF'') classes according to the OCC in September 2019.\46\ For 
September 2019, the Exchange's affiliate, MIAX, had only 3.87% market 
share of the U.S. options industry in Equity/ETF classes according to 
the OCC.\47\ For September 2019, the Exchange's affiliate, MIAX

[[Page 59895]]

Emerald, had only 0.81% market share of the U.S. options industry in 
Equity/ETF classes according to the OCC.\48\ The Exchange is not aware 
of any evidence that a combined market share of less than 10% provides 
the Exchange with anti-competitive pricing power. This, in addition to 
the fact that not all broker-dealers are required to connect to all 
options exchanges, supports the Exchange's conclusion that its pricing 
is constrained by competition.
---------------------------------------------------------------------------

    \46\ See Exchange Market Share of Equity Products--2019, The 
Options Clearing Corporation, available at https://www.theocc.com/webapps/exchange-volume.
    \47\ Id.
    \48\ Id.
---------------------------------------------------------------------------

    Separately, the Exchange is not aware of any reason why market 
participants could not simply drop their connections and cease being 
Members of the Exchange if the Exchange were to establish unreasonable 
and uncompetitive price increases for its connectivity alternatives. 
Market participants choose to connect to a particular exchange and 
because it is a choice, MIAX PEARL must set reasonable connectivity 
pricing, otherwise prospective members would not connect and existing 
members would disconnect or connect through a third-party reseller of 
connectivity. No options market participant is required by rule, 
regulation, or competitive forces to be a Member of the Exchange. As 
evidence of the fact that market participants can and do disconnect 
from exchanges based on connectivity pricing, see the R2G Services LLC 
(``R2G'') letter based on BOX's proposed rule changes to increase its 
connectivity fees (SR-BOX-2018-24, SR-BOX-2018-37, and SR-BOX-2019-
04).\49\ The R2G Letter stated, ``[w]hen BOX instituted a $10,000/month 
price increase for connectivity; we had no choice but to terminate 
connectivity into them as well as terminate our market data 
relationship. The cost benefit analysis just didn't make any sense for 
us at those new levels.'' Accordingly, this example shows that if an 
exchange sets too high of a fee for connectivity and/or market data 
services for its relevant marketplace, market participants can choose 
to disconnect from the exchange.
---------------------------------------------------------------------------

    \49\ See Letter from Stefano Durdic, R2G, to Vanessa Countryman, 
Acting Secretary, Commission, dated March 27, 2019 (the ``R2G 
Letter'').
---------------------------------------------------------------------------

    Several market participants choose not to be Members of the 
Exchange and choose not to access the Exchange, and several market 
participants also access the Exchange indirectly through another market 
participant. To illustrate, the Exchange has only 41 Members (including 
all such Members' affiliate Members). However, Cboe Exchange, Inc. 
(``Cboe'') has over 200 members,\50\ Nasdaq ISE, LLC has approximately 
100 members,\51\ and NYSE American LLC has over 80 members.\52\ If all 
market participants were required to be Members of the Exchange and 
connect directly to the Exchange, the Exchange would have over 200 
Members, in line with Cboe's total membership. But it does not. The 
Exchange only has 41 Members (inclusive of Members' affiliates).
---------------------------------------------------------------------------

    \50\ See Form 1/A, filed August 30, 2018 (https://www.sec.gov/Archives/edgar/vprr/1800/18002831.pdf); Form 1/A, filed August 30, 
2018 (https://www.sec.gov/Archives/edgar/vprr/1800/18002833.pdf); 
Form 1/A, filed July 24, 2018 (https://www.sec.gov/Archives/edgar/vprr/1800/18002781.pdf); Form 1/A, filed August 30, 2018 (https://www.sec.gov/Archives/edgar/data/1473845/999999999718007832/9999999997-18-007832-index.htm).
    \51\ See Form 1/A, filed July 1, 2016 (https://www.sec.gov/Archives/edgar/vprr/1601/16019243.pdf).
    \52\ See https://www.nyse.com/markets/american-options/membership#directory.
---------------------------------------------------------------------------

    The Exchange finds it compelling that all of the Exchange's 
existing Members continued to purchase the Exchange's connectivity 
services during the period for which the Proposed Fee Increases took 
effect in August 2018, particularly in light of the R2G disconnection 
example cited above.\53\ In particular, the Exchange believes that the 
Proposed Fee Increases are reasonable because the Exchange did not lose 
any Members (or the number of connections each Member purchased) or 
non-Member connections due to the Exchange increasing its connectivity 
fees through the First Proposed Rule Change, which fee increase became 
effective August 1, 2018. For example, in July 2018, fourteen (14) 
Members purchased 1Gb connections, ten (10) Members purchased 10Gb 
connections, and fifteen (15) Members purchased 10Gb ULL connections. 
(The Exchange notes that 1Gb connections are purchased primarily by EEM 
Members; 10Gb ULL connections are purchased primarily by higher volume 
Market Makers quoting all products across both MIAX PEARL and MIAX; and 
10Gb connections are purchased by higher volume EEMs and lower volume 
Market Makers.) The vast majority of those Members purchased multiple 
such connections with the actual number of connections depending on the 
Member's throughput requirements based on the volume of their quote/
order traffic and market data needs associated with their business 
model. After the fee increase, beginning August 1, 2018, the same 
number of Members purchased the same number of connections.\54\ 
Furthermore, the total number of connections did not decrease from July 
to August 2018, and in fact one Member even purchased two (2) 
additional 10Gb ULL connections in August 2018, after the fee increase.
---------------------------------------------------------------------------

    \53\ See supra note 49.
    \54\ The Exchange notes that one Member downgraded one 
connection in July of 2018, however such downgrade was done well 
ahead of notice of the Proposed Fee Increase and was the result of a 
change to the Member's business operation that was completely 
independent of, and unrelated to, the Proposed Fee Increases.
---------------------------------------------------------------------------

    Also, in July 2018, four (4) non-Members purchased 1Gb connections, 
two (2) non-Members purchased 10Gb connections, and one (1) non-Member 
purchased 10Gb ULL connections. After the fee increase, beginning 
August 1, 2018, the same non-Members purchased the same number of 
connections across all available alternatives and two (2) additional 
non-Members purchased three (3) more connections after the fee 
increase. These non-Members freely purchased their connectivity with 
the Exchange in order to offer trading services to other firms and 
customers, as well as access to the market data services that their 
connections to the Exchange provide them, but they are not required or 
compelled to purchase any of the Exchange's connectivity options. MIAX 
PEARL did not experience any noticeable change (increase or decrease) 
in order flow sent by its market participants as a result of the fee 
increase.
    Of those Members and non-Members that bought multiple connections, 
no firm dropped any connections beginning August 1, 2018, when the 
Exchange increased its fees. Nor did the Exchange lose any Members. 
Furthermore, the Exchange did not receive any comment letters or 
official complaints from any Member or non-Member purchaser of 
connectivity regarding the increased fees regarding how the fee 
increase was unreasonable, unduly burdensome, or would negatively 
impact their competitiveness amongst other market participants. These 
facts, coupled with the discussion above, showing that it is not 
necessary to join and/or connect to all options exchanges and market 
participants can disconnect if pricing is set too high (the R2G 
example),\55\ demonstrate that the Exchange's fees are constrained by 
competition and are reasonable and not contrary to the Law of Demand. 
Therefore, the Exchange believes that the Proposed Fee Increases are 
fair, equitable, and non-discriminatory, as the fees are competitive.
---------------------------------------------------------------------------

    \55\ See supra note 49.
---------------------------------------------------------------------------

    The Exchange believes that the Proposed Fee Increases are equitably

[[Page 59896]]

allocated among Members and non-Members, as evidenced by the fact that 
the fee increases are allocated across all connectivity alternatives 
according to the Exchange's costs to provide such alternatives, and 
there is not a disproportionate number of Members purchasing any 
alternative--fourteen (14) Members purchased 1Gb connections, ten (10) 
Members purchased 10Gb connections, fifteen (15) Members purchased 10Gb 
ULL connections, four (4) non-Members purchased 1Gb connections, two 
(2) non-Members purchased 10Gb connections, and one (1) non-Member 
purchased 10Gb ULL connections. The Exchange recognizes that the 
relative fee increases are 27% for the 1Gb connection, 10.9% for the 
10Gb connection, and 9.4% for the 10Gb ULL connection, but the Exchange 
believes that percentage increase differentiation is appropriate, given 
the actual costs to the Exchange to provide network connectivity and 
the respective connection options, including the costs associated with 
providing the different levels of service associated with the 
respective connections.
    Further, the Exchange believes that the fees are equitably 
allocated as the users of the higher bandwidth connections consume the 
most resources of the Exchange. Also, these firms account for the vast 
majority of the Exchange's trading volume. The purchasers of the 10Gb 
ULL connectivity account for approximately 81% of the volume on the 
Exchange. For example, for all of September 2019, approximately 15.5 
million contracts of the approximately 19.1 million contracts executed 
were done by the top market making firms of the Exchange's total 
volume. The Exchange further believes that the fees are equitably 
allocated, as the amount of the fees for the various connectivity 
alternatives are directly related to the actual costs associated with 
providing the respective connectivity alternatives. That is, the cost 
to the Exchange of providing a 1Gb network connection is significantly 
lower than the cost to the Exchange of providing a 10Gb or 10Gb ULL 
network connection. Pursuant to its extensive cost review described 
above, the Exchange believes that the average cost to provide a 10Gb/
10Gb ULL network connection is approximately 4 to 6 times more than the 
average cost to provide a 1Gb connection. The simple hardware and 
software component costs alone of a 10Gb/10Gb ULL connection are not 4 
to 6 times more than the 1Gb connection. Rather, it is the associated 
premium-product level network monitoring, reporting, and support 
services costs that accompany a 10Gb/10Gb ULL connection which cause it 
to be 4 to 6 times more costly to provide than the 1Gb connection. As 
discussed above, the Exchange differentiates itself by offering a 
``premium-product'' network experience, as an operator of a high 
performance, ultra-low latency network with unparalleled system 
throughput, which network can support access to three distinct options 
markets and multiple competing market-makers having affirmative 
obligations to continuously quote over 750,000 distinct trading 
products (per exchange), and the capacity to handle approximately 10.7 
million quote messages per second. The ``premium-product'' network 
experience enables users of 10Gb and 10Gb ULL connections to receive 
the network monitoring and reporting services for those approximately 
750,000 distinct trading products. There is a significant, quantifiable 
amount of research and development (``R&D'') effort, employee 
compensation and benefits expense, and other expense associated with 
providing the high touch network monitoring and reporting services that 
are utilized by the 10Gb and 10Gb ULL connections offered by the 
Exchange. These value add services are fully-discussed herein, and the 
actual costs associated with providing these services are the basis for 
the differentiated amount of the fees for the various connectivity 
alternatives.
    The Exchange believes that its proposal is consistent with Section 
6(b)(4) of the Act because the Proposed Fee Increases will permit 
recovery of the Exchange's costs and will not result in excessive 
pricing or supra-competitive profit. The Proposed Fee Increases will 
allow the Exchange to recover a portion (less than all) of the 
increased costs incurred by the Exchange associated with providing and 
maintaining the necessary hardware and other network infrastructure as 
well as network monitoring and support services in order to provide the 
network connectivity services, since Exchange launched operations in 
February 2017. Put simply, the costs of the Exchange to provide these 
services have increased considerably over this time, as more fully-
detailed and quantified below. The Exchange believes that it is 
reasonable and appropriate to increase its fees charged for use of its 
connectivity to partially offset the increased costs the Exchange 
incurred during this time associated with maintaining and enhancing a 
state-of-the-art exchange network infrastructure in the U.S. options 
industry.
    In particular, the Exchange's increased costs associated with 
supporting its network are due to several factors, including increased 
costs associated with maintaining and expanding a team of highly-
skilled network engineers (the Exchange also hired additional network 
engineering staff in 2017 and 2018), increasing fees charged by the 
Exchange's third-party data center operator, and costs associated with 
projects and initiatives designed to improve overall network 
performance and stability, through the Exchange's R&D efforts.
    In order to provide more detail and to quantify the Exchange's 
increased costs, the Exchange notes that increased costs are associated 
with the infrastructure and increased headcount to fully-support the 
advances in infrastructure and expansion of network level services, 
including customer monitoring, alerting and reporting. Additional 
technology expenses were incurred related to expanding its Information 
Security services, network monitoring and customer reporting, as well 
as Regulation SCI mandated processes associated with network 
technology. All of these additional expenses have been incurred by the 
Exchange since became operational in February 2017.
    Additionally, while some of the expense is fixed, much of the 
expense is not fixed, and thus increases as the number of connections 
increase. For example, new 1Gb, 10Gb, and 10Gb ULL connections require 
the purchase of additional hardware to support those connections as 
well as enhanced monitoring and reporting of customer performance that 
MIAX PEARL and its affiliates provide. And 10Gb ULL connections require 
the purchase of specialized, more costly hardware. Further, as the 
total number of all connections increase, MIAX PEARL and its affiliates 
need to increase their data center footprint and consume more power, 
resulting in increased costs charged by their third-party data center 
provider. Accordingly, the cost to MIAX PEARL and its affiliates is not 
entirely fixed. Just the initial fixed cost buildout of the network 
infrastructure of MIAX PEARL and its affiliates, including both 
primary/secondary sites and disaster recovery, was over $30 million. 
These costs have increased over 10% since the Exchange became 
operational in February 2017. As these network connectivity-related 
expenses increase, MIAX PEARL and its affiliates look to offset those 
costs through increased connectivity fees.
    A more detailed breakdown of the expense increases since February 
2017 include an approximate 70% increase in

[[Page 59897]]

technology-related personnel costs in infrastructure, due to expansion 
of services/support (increase of approximately $800,000); an 
approximate 10% increase in datacenter costs due to price increases and 
footprint expansion (increase of approximately $500,000); an 
approximate 5% increase in vendor-supplied dark fiber due to price 
increases and expanded capabilities (increase of approximately 
$25,000); and a 30% increase in market data connectivity fees (increase 
of approximately $200,000). Of note, regarding market data connectivity 
fee increased cost, this is the cost associated with MIAX PEARL 
consuming connectivity/content from the equities markets in order to 
operate the Exchange, causing MIAX PEARL to effectively pay its 
competitors for this connectivity. While the Exchange and MIAX have 
incurred a total increase in connectivity expenses since January 2017 
(the last time connectivity fees were raised) of approximately $1.5 
million per year (as described above), the total increase in 
connectivity revenue amount as a result of the Proposed Fee Increases 
is projected to be approximately $1.2 million per year for MIAX PEARL 
and MIAX. Accordingly, the total projected MIAX PEARL and MIAX 
connectivity revenue as a result of the proposed increase, on an 
annualized basis, is less than the total annual actual MIAX PEARL and 
MIAX connectivity expense. Accordingly, the Proposed Fee Increases are 
fair and reasonable because they will not result in excessive pricing 
or supra-competitive profit, when comparing the increase in actual 
costs to the Exchange (since February 2017) versus the projected 
increase in annual revenue. The Exchange also incurred additional 
significant capital expenditures over this same period to upgrade and 
enhance the underlying technology components, as more fully-detailed 
below.
    Further, because the costs of operating a data center are 
significant and not economically feasible for the Exchange, the 
Exchange does not operate its own data centers, and instead contracts 
with a third-party data center provider. The Exchange notes that 
larger, dominant exchange operators own and operate their data centers, 
which offers them greater control over their data center costs. Because 
those exchanges own and operate their data centers as profit centers, 
the Exchange is subject to additional costs. As a result, the Exchange 
is subject to fee increases from its data center provider, which the 
Exchange experienced in 2017 and 2018 of approximately 10%, as cited 
above. Connectivity fees, which are charged for accessing the 
Exchange's data center network infrastructure, are directly related to 
the network and offset such costs.
    Further, the Exchange invests significant resources in network R&D, 
which are not included in direct expenses to improve the overall 
performance and stability of its network. For example, the Exchange has 
a number of network monitoring tools (some of which were developed in-
house, and some of which are licensed from third-parties), that 
continually monitor, detect, and report network performance, many of 
which serve as significant value-adds to the Exchange's Members and 
enable the Exchange to provide a high level of customer service. These 
tools detect and report performance issues, and thus enable the 
Exchange to proactively notify a Member (and the SIPs) when the 
Exchange detects a problem with a Member's connectivity. In fact, the 
Exchange often receives calls from other industry participants 
regarding the status of networking issues outside of the Exchange's own 
network environment that are impacting the industry as a whole via the 
SIPs, including calls from regulators, because the Exchange has a 
superior, state-of the-art network that, through its enhanced 
monitoring and reporting solutions, often detects and identifies 
industry-wide networking issues ahead of the SIPs. The costs associated 
with the maintenance and improvement of existing tools and the 
development of new tools resulted in significant increased cost to the 
Exchange since February 2017 and are loss leaders for the Exchange to 
provide these added benefits for Members and non-Members.
    Certain recently developed network aggregation and monitoring tools 
provide the Exchange with the ability to measure network traffic with a 
much more granular level of variability. This is important as Exchange 
Members demand a higher level of network determinism and the ability to 
measure variability in terms of single digit nanoseconds. Also, the 
Exchange routinely conducts R&D projects to improve the performance of 
the network's hardware infrastructure. As an example, in the last year, 
the Exchange's R&D efforts resulted in a performance improvement, 
requiring the purchase of new equipment to support that improvement, 
and thus resulting in increased costs in the hundreds of thousands of 
dollars range. In sum, the costs associated with maintaining and 
enhancing a state-of-the-art exchange network in the U.S. options 
industry is a significant expense for the Exchange that continues to 
increase, and thus the Exchange believes that it is reasonable to 
offset a portion of those increased costs by increasing its network 
connectivity fees, which are designed to recover those costs, as 
proposed herein. The Exchange invests in and offers a superior network 
infrastructure as part of its overall options exchange services 
offering, resulting in significant costs associated with maintaining 
this network infrastructure, which are directly tied to the amount of 
the connectivity fees that must be charged to access it, in order to 
recover those costs. As detailed in the Exchange's 2018 Audited 
Unconsolidated Financial Statements, the Exchange only has four primary 
sources of revenue: Transaction fees, access fees (of which network 
connectivity constitutes the majority), regulatory fees, and market 
data fees. Accordingly, the Exchange must cover all of its expenses 
from these four primary sources of revenue.
    The Proposed Fee Increases are fair and reasonable because they 
will not result in excessive pricing or supra-competitive profit, when 
comparing the total annual expense of MIAX PEARL and MIAX collected for 
providing network connectivity services versus the total projected 
annual revenue of both exchanges associated with providing network 
connectivity services. For 2018, the total annual expense associated 
with providing network connectivity services (that is, the shared 
network connectivity of MIAX PEARL and MIAX, but excluding MIAX 
Emerald) was approximately $19.3 million. The $19.3 million in total 
annual expense is comprised of the following, all of which is directly 
related to the provision of network connectivity services by MIAX PEARL 
and MIAX to their respective Members and non-Members: (1) Third-party 
expense, relating to fees paid by MIAX PEARL and MIAX to third-parties 
for certain products and services; and (2) internal expense, relating 
to the internal costs of MIAX PEARL and MIAX to provide the network 
connectivity services. All such expenses are more fully-described 
below, and are mapped to the MIAX PEARL and MIAX 2018 Statements of 
Operations and Member's Deficit (the ``2018 Financial Statements''). 
The $19.3 million in total annual expense is directly related to the 
provision of network connectivity services and not any other product or 
service offered by the Exchange. It does not, as the Third IEX Letter 
baselessly

[[Page 59898]]

claims, include general costs of operating matching systems and other 
trading technology. (And as stated previously, no expense amount was 
allocated twice.) As discussed, the Exchange conducted an extensive 
cost review in which the Exchange analyzed every expense item in the 
Exchange's general expense ledger (this includes over 150 separate and 
distinct expense items) to determine whether each such expense relates 
to the provision of network connectivity services, and, if such expense 
did so relate, what portion (or percentage) of such expense actually 
supports the provision of network connectivity services, and thus bears 
a relationship that is, ``in nature and closeness,'' directly related 
to network connectivity services. The sum of all such portions of 
expenses represents the total actual baseline cost of the Exchange to 
provide network connectivity services.
    As discussed above, the Exchange differentiates itself by offering 
a ``premium-product'' network experience, as an operator of a high 
performance, ultra-low latency network with unparalleled system 
throughput, which network can support access to three distinct options 
markets and multiple competing market-makers having affirmative 
obligations to continuously quote over 750,000 distinct trading 
products (per exchange), and the capacity to handle approximately 38 
million quote messages per second. The ``premium-product'' network 
experience enables users of 10Gb and 10Gb ULL connections to receive 
the network monitoring and reporting services for those approximately 
750,000 distinct trading products. Thus, the Exchange is acutely aware 
of and can isolate the actual costs associated with providing such a 
service to its customers, a significant portion of which relates to the 
premium, value-add customer network monitoring and support services 
that accompany the service, as fully-described above. IEX, on the other 
hand, does not offer such a network, and thus has no legal basis to 
offer a qualified opinion on the Exchange's costs associated with 
operating such a network. In fact, IEX differentiates itself as a 
provider of low cost connectivity solutions to an intentionally delayed 
trading platform--quite the opposite from the Exchange. Thus, there is 
no relevant comparison between IEX network connectivity costs and the 
Exchange's network connectivity costs, and IEX's attempt to do so in 
the Third IEX Letter is ill-informed and self-serving.\56\
---------------------------------------------------------------------------

    \56\ See Third IEX Letter, pg. 5.
---------------------------------------------------------------------------

    For 2018, total third-party expense, relating to fees paid by MIAX 
PEARL and MIAX to third-parties for certain products and services for 
the Exchange to be able to provide network connectivity services, was 
$5,052,346. This includes, but is not limited to, a portion of the fees 
paid to: (1) Equinix, for data center services, for the primary, 
secondary, and disaster recovery locations of the MIAX PEARL and MIAX 
trading system infrastructure; (2) Zayo Group Holdings, Inc. (``Zayo'') 
for connectivity services (fiber and bandwidth connectivity) linking 
MIAX PEARL and MIAX office locations in Princeton, NJ and Miami, FL to 
all data center locations; (3) Secure Financial Transaction 
Infrastructure (``SFTI''),\57\ which supports connectivity and feeds 
for the entire U.S. options industry; (4) various other services 
providers (including Thompson Reuters, NYSE, Nasdaq, and Internap), 
which provide content, connectivity services, and infrastructure 
services for critical components of options connectivity; and (5) 
various other hardware and software providers (including Dell and 
Cisco, which support the production environment in which Members and 
non-Members connect to the network to trade, receive market data, 
etc.).
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    \57\ In fact, on October 22, 2019, the Exchange was notified by 
SFTI that it is again raising its fees charged to the Exchange by 
approximately 11%, without having to show that such fee change 
complies with the Act by being reasonable, equitably allocated, and 
not unfairly discriminatory. It is unfathomable to the Exchange 
that, given the critical nature of the infrastructure services 
provided by SFTI, that its fees are not required to be rule-filed 
with the Commission pursuant to Section 19(b)(1) of the Act and Rule 
19b-4 thereunder. See 15 U.S.C. 78s(b)(1) and 17 CFR 240.19b-4, 
respectively.
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    All of the third-party expense described above is contained in the 
information technology and communication costs line item under the 
section titled ``Operating Expenses Incurred Directly or Allocated From 
Parent'' of the 2018 Financial Statements. For clarity, only a portion 
of all fees paid to such third-parties is included in the third-party 
expense herein (only the portion that actually supports the provision 
of network connectivity services and no expense amount is allocated 
twice). Accordingly, MIAX PEARL and MIAX do not allocate their entire 
information technology and communication costs to the provision of 
network connectivity services.
    For 2018, total internal expense, relating to the internal costs of 
MIAX PEARL and MIAX to provide the network connectivity services, was 
$14,271,870. This includes, but is not limited to, costs associated 
with: (1) Employee compensation and benefits for full-time employees 
that support network connectivity services, including staff in network 
operations, trading operations, development, system operations, 
business, etc., as well as staff in general corporate departments (such 
as legal, regulatory, and finance) that support those employees and 
functions; (2) depreciation and amortization of hardware and software 
used to provide network connectivity services, including equipment, 
servers, cabling, purchased software and internally developed software 
used in the production environment to support the provision of network 
connectivity for trading; and (3) occupancy costs for leased office 
space for staff that support the provision of network connectivity 
services. The breakdown of these costs is more fully-described below.
    All of the internal expenses described above are contained in the 
following line items under the section titled ``Operating Expenses 
Incurred Directly or Allocated From Parent'' in the 2018 Financial 
Statements: (1) Employee compensation and benefits; (2) Depreciation 
and amortization; and (3) Occupancy costs. For clarity, only a portion 
of all such internal expenses are included in the internal expense 
herein (only the portion that supports the provision of network 
connectivity services), and no expense amount is allocated twice). 
Accordingly, MIAX PEARL and MIAX do not allocate their entire costs 
contained in those line items to the provision of network connectivity 
services.
    MIAX's and MIAX PEARL's combined employee compensation and benefits 
expense relating to providing network connectivity services was 
$5,264,151, which is only a portion of the $11,997,098 (for MIAX) and 
$8,545,540 (for MIAX PEARL) total expense for employee compensation and 
benefits that is stated in the 2018 Financial Statements. MIAX's and 
MIAX PEARL's combined depreciation and amortization expense relating to 
providing network connectivity services was $8,269,048, which is only a 
portion of the $6,179,506 (for MIAX) and $4,783,245 (for MIAX PEARL) 
total expense for depreciation and amortization that is stated in the 
2018 Financial Statements. MIAX's and MIAX PEARL's combined occupancy 
expense relating to providing network connectivity services was 
$738,669, which is only a portion of the $945,431 (for MIAX) and 
$581,783 (for MIAX PEARL) total expense for occupancy

[[Page 59899]]

that is stated in the 2018 Financial Statements.
    Accordingly, the total projected MIAX and MIAX PEARL combined 
revenue for providing network connectivity services, reflective of the 
proposed increase, on an annualized basis, of $14.5 million, is less 
than total annual actual MIAX PEARL and MIAX combined expense for 
providing network connectivity services during 2018 of approximately 
$19.3 million. MIAX PEARL and MIAX project comparable combined expenses 
for providing network connectivity services for 2019, as compared to 
2018.
    For the avoidance of doubt, none of the expenses included herein 
relating to the provision of network connectivity services relate to 
the provision of any other services offered by MIAX PEARL and MIAX. 
Stated differently, no expense amount of the Exchange is allocated 
twice.
    Accordingly, the Proposed Fee Increases are fair and reasonable 
because they do not result in excessive pricing or supra-competitive 
profit, when comparing the actual network connectivity costs to the 
Exchange versus the projected network connectivity annual revenue, 
including the increased amount. Additional information on overall 
revenue and expense of the Exchange can be found in the Exchange's 2018 
Financial Statements.
    The Exchange notes that other exchanges have similar connectivity 
alternatives for their participants, including similar low-latency 
connectivity. For example, Nasdaq PHLX LLC (``Phlx''), NYSE Arca, Inc. 
(``Arca''), NYSE American LLC (``NYSE American'') and Nasdaq ISE, LLC 
(``ISE'') all offer a 1Gb, 10Gb and 10Gb low latency ethernet 
connectivity alternatives to each of their participants.\58\ The 
Exchange further notes that Phlx, ISE, Arca and NYSE American each 
charge higher rates for such similar connectivity to primary and 
secondary facilities.\59\ While MIAX PEARL's proposed connectivity fees 
are substantially lower than the fees charged by Phlx, ISE, Arca and 
NYSE American, MIAX PEARL believes that it offers significant value to 
Members over other exchanges in terms of network monitoring and 
reporting, which MIAX PEARL believes is a competitive advantage, and 
differentiates its connectivity versus connectivity to other exchanges. 
Additionally, the Exchange's proposed connectivity fees to its disaster 
recovery facility are within the range of the fees charged by other 
exchanges for similar connectivity alternatives.\60\
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    \58\ See Phlx and ISE Rules, General Equity and Options Rules, 
General 8, Section 1(b). Phlx and ISE each charge a monthly fee of 
$2,500 for each 1Gb connection, $10,000 for each 10Gb connection and 
$15,000 for each 10Gb Ultra connection, which the equivalent of the 
Exchange's 10Gb ULL connection. See also NYSE American Fee Schedule, 
Section V.B, and Arca Fees and Charges, Co-Location Fees. NYSE 
American and Arca each charge a monthly fee of $5,000 for each 1Gb 
circuit, $14,000 for each 10Gb circuit and $22,000 for each 10Gb LX 
circuit, which the equivalent of the Exchange's 10Gb ULL connection.
    \59\ Id.
    \60\ See Nasdaq ISE, Options Rules, Options 7, Pricing Schedule, 
Section 11.D. (charging $3,000 for disaster recovery testing & 
relocation services); see also Cboe Exchange, Inc. (``Cboe'') Fees 
Schedule, p. 14, Cboe Command Connectivity Charges (charging a 
monthly fee of $2,000 for a 1Gb disaster recovery network access 
port and a monthly fee of $6,000 for a 10Gb disaster recovery 
network access port).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    MIAX PEARL does not believe that the proposed rule changes will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act.
Intra-Market Competition
    The Exchange does not believe that the proposed rule change would 
place certain market participants at the Exchange at a relative 
disadvantage compared to other market participants or affect the 
ability of such market participants to compete. In particular, the 
Exchange has received no official complaints from Members, non-Members 
(extranets and service bureaus), third-parties that purchase the 
Exchange's connectivity and resell it, and customers of those 
resellers, that the Exchange's fees or the Proposed Fee Increases are 
negatively impacting or would negatively impact their abilities to 
compete with other market participants or that they are placed at a 
disadvantage. The Exchange believes that the Proposed Fee Increases do 
not place certain market participants at a relative disadvantage to 
other market participants because the connectivity pricing is 
associated with relative usage of the various market participants and 
does not impose a barrier to entry to smaller participants. As 
described above, the less expensive 1Gb direct connection is generally 
purchased by market participants that utilize less bandwidth. The 
market participants that purchase 10Gb ULL direct connections utilize 
the most bandwidth, and those are the participants that consume the 
most resources from the network. Accordingly, the Proposed Fee 
Increases do not favor certain categories of market participants in a 
manner that would impose a burden on competition; rather, the 
allocation of the Proposed Fee Increases 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, particularly since higher bandwidth consumption 
translates to higher costs to the Exchange.
Inter-Market Competition
    The Exchange believes the Proposed Fee Increases do not place an 
undue burden on competition on other SROs that is not necessary or 
appropriate. In particular, options market participants are not forced 
to connect to (and purchase market data from) all options exchanges, as 
shown by the number of Members of MIAX PEARL as compared to the much 
greater number of members at other options exchanges (as described 
above). Not only does MIAX PEARL have less than half the number of 
members as certain other options exchanges, but there are also a number 
of the Exchange's Members that do not connect directly to MIAX PEARL. 
There are a number of large market makers and broker-dealers that are 
members of other options exchange but not Members of MIAX PEARL. 
Additionally, other exchanges have similar connectivity alternatives 
for their participants, including similar low-latency connectivity, but 
with much higher rates to connect.\61\ The Exchange is also unaware of 
any assertion that its existing fee levels or the Proposed Fee 
Increases would somehow unduly impair its competition with other 
options exchanges. To the contrary, if the fees charged are deemed too 
high by market participants, they can simply disconnect. While the 
Exchange recognizes the distinction between connecting to an exchange 
and trading at the exchange, the Exchange notes that it operates in a 
highly competitive options market in which market participants can 
readily connect and trade with venues they desire. In such an 
environment, the Exchange must continually adjust its fees to remain 
competitive with other exchanges. The Exchange believes that the 
proposed changes reflect this competitive environment.
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    \61\ See supra note 58.
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C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

[[Page 59900]]

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act,\62\ and Rule 19b-4(f)(2) \63\ thereunder. 
At any time within 60 days of the filing of the proposed rule change, 
the Commission summarily may temporarily suspend such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Act. If the Commission takes such 
action, the Commission shall institute proceedings to determine whether 
the proposed rule should be approved or disapproved.
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    \62\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \63\ 17 CFR 240.19b-4(f)(2).
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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

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-PEARL-2019-33 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-PEARL-2019-33. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-PEARL-2019-33 and should be submitted on 
or before November 27, 2019.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\64\
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    \64\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-24187 Filed 11-5-19; 8:45 am]
BILLING CODE 8011-01-P


