[Federal Register Volume 85, Number 223 (Wednesday, November 18, 2020)]
[Notices]
[Pages 73556-73567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25390]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90408; File No. SR-NYSEAMER-2020-79]


Self-Regulatory Organizations; NYSE American, LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change Amending the 
Fees for NYSE American BBO and NYSE American Trades by Modifying the 
Application of the Access Fee and Amending the Fees for NYSE American 
Trades by Adopting a Waiver Applicable to the Redistribution Fee

November 12, 2020.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the

[[Page 73557]]

``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on November 2, 2020, NYSE American, LLC (``NYSE American'' or the 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the Exchange. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to (1) amend the fees for NYSE American BBO 
and NYSE American Trades by modifying the application of the Access 
Fee; and (2) amend the fees for NYSE American Trades by adopting a 
waiver applicable to the Redistribution Fee. The Exchange proposes to 
implement the proposed fee changes on January 1, 2021. The proposed 
rule change is available on the Exchange's website at www.nyse.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 self-regulatory organization 
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 those 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to decrease the fees for certain NYSE 
American market data products, as set forth on the NYSE American 
Proprietary Market Data Fee Schedule (``Fee Schedule''). These fee 
decreases, taken together with similar fee decreases filed by the 
Exchange's affiliated exchanges, New York Stock Exchange LLC (``NYSE'') 
and NYSE Arca, Inc. (``NYSE Arca''),\3\ will reduce the fees associated 
with the NYSE BQT proprietary data product, which competes directly 
with similar products offered by both the Nasdaq and Cboe families of 
U.S. equity exchanges. Collectively, the proposed fee decreases are 
intended to respond to the competition posed by similar products 
offered by the other exchange groups.
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    \3\ See SR-NYSE-2020-91 and SR-NYSEArca-2020-95.
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    Specifically, the Exchange proposes to (1) reduce the Access Fees 
by more than 93% for Redistributors \4\ of NYSE American BBO and NYSE 
American Trades that subscribe to only such data feeds and do not 
subscribe to any other market data product listed on the Fee Schedule, 
and use such market data products for external distribution only; and 
(2) waive the Redistribution Fee for Redistributors that are eligible 
for the Per User Access Fee if the Redistributor provides NYSE American 
Trades externally to at least one data feed recipient and reports such 
recipient to the Exchange. All of the proposed changes would decrease 
fees for market data on the Exchange.
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    \4\ A Redistributor is a vendor or any other person that 
provides a NYSE data product to a data recipient or to any system 
that a data recipient uses, irrespective of the means of 
transmission or access.
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    The Exchange proposes to implement these proposed fee changes on 
January 1, 2021.
Background
    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.'' \5\
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    \5\ See Securities Exchange Act Release No. 51808 (June 9, 
2005), 70 FR 37495, 37499 (June 29, 2005) (S7-10-04) (Final Rule) 
(``Regulation NMS Adopting Release'').
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    While Regulation NMS has enhanced competition, it has also fostered 
a ``fragmented'' market structure where trading in a single stock can 
occur across multiple trading centers. When multiple trading centers 
compete for order flow in the same stock, the Commission has recognized 
that ``such competition can lead to the fragmentation of order flow in 
that stock.'' \6\ Indeed, equity trading is currently dispersed across 
16 exchanges,\7\ numerous alternative trading systems,\8\ and broker-
dealer internalizers and wholesalers, all competing for order flow. 
Based on publicly-available information, no single exchange currently 
has more than 18% market share (whether including or excluding auction 
volume).\9\
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    \6\ See Securities Exchange Act Release No. 61358, 75 FR 3594, 
3597 (January 21, 2010) (File No. S7-02-10) (Concept Release on 
Equity Market Structure).
    \7\ See Cboe Global Markets, U.S. Equities Market Volume 
Summary, available at http://markets.cboe.com/us/equities/market_share/. See generally https://www.sec.gov/fast-answers/divisionsmarketregmrexchangesshtml.html.
    \8\ See FINRA ATS Transparency Data, available at https://otctransparency.finra.org/otctransparency/AtsIssueData. A list of 
alternative trading systems registered with the Commission is 
available at https://www.sec.gov/foia/docs/atslist.htm.
    \9\ See Cboe Global Markets U.S. Equities Market Volume Summary, 
available at http://markets.cboe.com/us/equities/market_share/.
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    With the NYSE BQT market data product, NYSE American and its 
affiliates compete head to head with the Nasdaq Basic \10\ and Cboe One 
Feed \11\ market data products. Similar to those market data products, 
NYSE BQT, which was established in 2014,\12\ consists of certain 
elements from the NYSE American BBO and NYSE American Trades market 
data products as well as from market data products from the Exchange's 
affiliates, NYSE, NYSE Arca, NYSE Chicago, Inc. (``NYSE Chicago''),\13\ 
and NYSE National, Inc. (``NYSE National'').\14\ Similar to both Nasdaq 
Basic and the Cboe One Feed, NYSE BQT provides investors with a unified 
view of comprehensive last sale and BBO data in all Tape A, B, and C 
securities that trade on the Exchange, NYSE, NYSE Arca, NYSE Chicago, 
and

[[Page 73558]]

NYSE National. Also similar to Nasdaq Basic and the Cboe One Feed, NYSE 
BQT is not intended to be used for purposes of making order-routing or 
trading decisions, but rather provides indicative prices for Tape A, B, 
and C securities.\15\
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    \10\ As described on the Nasdaq website, available here: http://www.nasdaqtrader.com/Trader.aspx?id=nasdaqbasic, Nasdaq Basic is a 
``low cost alternative'' that provides ``Best Bid and Offer and Last 
Sale information for all U.S. exchange-listed securities based on 
liquidity within the Nasdaq market center, as well as trades 
reported to the FINRA Trade Reporting Facility (``TRF'').''
    \11\ As described on the Cboe website, available here: https://markets.cboe.com/us/equities/market_data_services/cboe_one/, the 
Cboe One Feed is a ``market data product that provides cost-
effective, high-quality reference quotes and trade data for market 
participants looking for comprehensive, real-time market data'' and 
provides a ``unified view of the market from all four Cboe equity 
exchanges: BZX Exchange, BYX Exchange, EDGX Exchange, and EDGA 
Exchange.''
    \12\ See Securities Exchange Act Release Nos. 72750 (August 4, 
2014), 79 FR 46494 (August 8, 2014) (notice--NYSE BQT); and 73553 
(November 6, 2014), 79 FR 67491 (November 13, 2014) (approval 
order--NYSE BQT) (SR-NYSE-2014-40) (``NYSE BQT Filing'').
    \13\ In 2019, NYSE BQT was amended to include NYSE Chicago BBO 
and NYSE Chicago Trades. See Securities Exchange Act Release No. 
87511 (November 12, 2019), 84 FR 63689 (November 18, 2019) (SR-NYSE-
2019-60).
    \14\ In 2018, NYSE BQT was amended to include NYSE National BBO 
and NYSE National Trades. See Securities Exchange Act Release No. 
83359 (June 1, 2018), 83 FR 26507 (June 7, 2018) (SR-NYSE-2018-22).
    \15\ See NYSE BQT Filing, supra note 13.
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    Currently, to subscribe to NYSE BQT, subscribers are charged an 
access fee of $250 per month.\16\ Additionally, subscribers must also 
subscribe to, and pay applicable fees for NYSE American BBO, NYSE 
American Trades, NYSE BBO, NYSE Trades, NYSE Arca BBO, NYSE Arca 
Trades, NYSE Chicago BBO, NYSE Chicago Trades, NYSE National BBO, and 
NYSE National Trades. Thus, an NYSE BQT subscriber currently pays the 
$250 access fee for NYSE BQT, plus a $1,500 access fee for each of NYSE 
BBO and NYSE Trades,\17\ plus a $750 access fee for each of NYSE 
American BBO and NYSE American Trades,\18\ plus a $750 access fee for 
each of NYSE Arca BBO and NYSE Arca trades,\19\ for a total of $6,250 
($250 + $3,000 + $1,500 + $1,500).\20\ In addition, an NYSE BQT 
subscriber would need to pay for the applicable Professional or Non-
Professional User Fees for the underlying market data products, as 
applicable.\21\
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    \16\ See NYSE Proprietary Market Data Fees, available here: 
https://www.nyse.com/publicdocs/nyse/data/NYSE_Market_Data_Fee_Schedule.pdf.
    \17\ See id.
    \18\ See Fee Schedule, available here: https://www.nyse.com/publicdocs/nyse/data/NYSE_American_Equities_Market_Data_Fee_Schedule.pdf.
    \19\ See NYSE Arca Equities Proprietary Market Data Fees, 
available here: https://www.nyse.com/publicdocs/nyse/data/NYSE_Arca_Equities_Fee_Schedule.pdf.
    \20\ There are currently no fees charged for the NYSE Chicago 
BBO, NYSE Chicago Trades, NYSE National BBO, or NYSE National Trades 
market data products.
    \21\ The Exchange is not proposing any changes to the User Fees. 
Currently, the Professional User Fees for each of NYSE BBO and NYSE 
Trades is $4 per month, and the Non-Professional User Fees for each 
of NYSE BBO and NYSE Trades is $0.20 per month. See NYSE Proprietary 
Market Data Fees, available here: https://www.nyse.com/publicdocs/nyse/data/NYSE_Market_Data_Fee_Schedule.pdf. The Professional User 
Fees for each of NYSE American BBO and NYSE American Trades is $4 
per month, and the Non-Professional User Fees for each of NYSE 
American BBO and NYSE American Trades is $0.25 per month. See NYSE 
American Price List, available here: https://www.nyse.com/publicdocs/nyse/data/NYSE_American_Equities_Market_Data_Fee_Schedule.pdf. The 
Professional User Fees for each of NYSE Arca BBO and NYSE Arca 
Trades is $4 per month, and the Non-Professional User Fees for each 
of NYSE Arca BBO and NYSE Arca Trades is $0.25 per month. See NYSE 
Arca Price List, available here: https://www.nyse.com/publicdocs/nyse/data/NYSE_Arca_Equities_Proprietary_Data_Fee_Schedule.pdf.
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    Because NYSE BQT is priced based on the fees associated with the 
underlying ten market data feeds, the Exchange and its affiliates 
propose to compete with the Nasdaq Basic and Cboe One Feed by reducing 
fees for the underlying market data products that comprise NYSE BQT. 
Together with NYSE and NYSE Arca, the Exchange similarly proposes to 
compete for subscribers to NYSE BQT by designing its fee decreases to 
be attractive to Redistributors that intend to subscribe to and 
externally redistribute only NYSE BQT. The Exchange understands that 
data recipients that are interested in subscribing to NYSE BQT obtain 
their data from Redistributors that do not currently subscribe to 
either the NYSE BQT data feed or any other market data product listed 
on the Fee Schedule. Because such Redistributors do not subscribe to 
NYSE BQT, the prospective data recipients that are the customers of 
such Redistributors are unable to subscribe to NYSE BQT. The proposed 
fee changes are designed to provide a financial incentive for such 
Redistributors to subscribe to NYSE BQT so that their customers, which 
have expressed an interest in subscribing to NYSE BQT, would be able to 
access the product via such Redistributors.
Access Fee--NYSE American BBO and NYSE American Trades
    NYSE American BBO is a NYSE American-only market data product that 
allows a vendor to redistribute on a real-time basis the same best-bid-
and-offer information that NYSE American reports under the Consolidated 
Quotation Plan (``CQ Plan'') for inclusion in the CQ Plan's 
consolidated quotation information data stream (``NYSE American BBO 
Information'').\22\ NYSE American BBO Information includes the best 
bids and offers for all securities that are traded on the Exchange and 
for which NYSE American reports quotes under the CQ Plan. NYSE American 
BBO is available over a single data feed, regardless of the markets on 
which the securities are listed. NYSE American BBO is made available to 
its subscribers no earlier than the information it contains is made 
available to the processor under the CQ Plan.
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    \22\ See Securities Exchange Act Release Nos. 61936 (April 16, 
2010), 75 FR 21088 (April 22, 2010) (SR-NYSEAmex-2010-35) (notice--
NYSE American BBO); and 62187 (May 27, 2010), 75 FR 31500 (June 3, 
2010) (SR-NYSEAmex-2010-35) (approval order--NYSE American BBO).
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    NYSE American Trades is a NYSE American-only market data product 
that allows a vendor to redistribute on a real-time basis the same last 
sale information that NYSE American reports to the Consolidated Tape 
Association (``CTA'') for inclusion in the CTA's consolidated data 
stream and certain other related data elements (``NYSE American Last 
Sale Information'').\23\ NYSE American Last Sale Information includes 
last sale information for all securities that are traded on the 
Exchange. NYSE American Trades is made available to its subscribers at 
the same time as the information it contains is made available to the 
processor under the CTA Plan.
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    \23\ See Securities Exchange Act Release Nos. 61936 (April 16, 
2010), 75 FR 21088 (April 22, 2010) (SR-NYSEAmex-2010-35) (notice--
NYSE American Trades); and 62187 (May 27, 2010), 75 FR 31500 (June 
3, 2010) (SR-NYSEAmex-2010-35) (approval order--NYSE American 
Trades).
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    Currently, subscribers of each of the NYSE American BBO and NYSE 
American Trades products that receive a data feed pay an Access Fee of 
$750 per month. In February 2020, the Exchange added the Per User 
Access Fee, which is a reduced Access Fee of $100 per month currently 
available only for subscribers of NYSE American BBO and NYSE American 
Trades that receive those products in a display-only format, including 
for internal use for Professional Users and external distribution to 
both Professional and Non-Professional Users.\24\
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    \24\ A Per User Access Fee currently applies for subscribers of 
NYSE American BBO and NYSE American Trades that receive a data feed 
and use those market data products in a display-only format. See Fee 
Schedule. See also Securities Exchange Act Release No. 87801 
(December 19, 2019), 84 FR 71491 (December 27, 2019) (SR-NYSEAMER-
2019-55) (Notice of Filing and Immediate Effectiveness of Proposed 
Rule Change, as Modified by Partial Amendment No. 1, To Amend the 
Fees for NYSE American BBO and NYSE American Trades) (``BQT Fee 
Reduction Filing'').
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    The Exchange now proposes that Redistributors of NYSE American BBO 
and NYSE American Trades data feeds that do not subscribe to any other 
market data product listed on the Fee Schedule, and use such market 
data products for external distribution only, would also be eligible 
for the reduced Per User Access Fee. A Redistributor that receives a 
data feed of NYSE American BBO and NYSE American Trades and uses the 
market data products for any other purpose (such as internal use) or 
that subscribes to any other products listed on the Fee Schedule would 
continue to pay the $1,500 per month General Access Fee. As currently 
set forth in footnote 3 to the Fee Schedule, a subscriber would be 
charged only one access fee for each of the NYSE American BBO and NYSE 
American Trades products, depending on the use of that product.
    To effect this change, the Exchange proposes to modify footnote 3 
to the Fee

[[Page 73559]]

Schedule as follows (proposed text is italicized, proposed deletions 
bracketed):

    The Per User Access Fee is charged to: (i) [A] a subscriber that 
receives a data feed and uses the market data product only for 
Professional Users and Non-Professional Users in a display-only 
format, including for internal use and external redistribution in a 
display-only format, [will be charged the Per User Access Fee] and 
(ii) a Redistributor that subscribes only to the NYSE American BBO 
and NYSE American Trades data feeds, and does not subscribe to any 
other Products listed on this Fee Schedule, and uses these market 
data products for external distribution only. A subscriber that 
receives a data feed and uses the market data product for any other 
purpose, including if combined with Per User use, will be charged 
the General Access Fee. A subscriber will be charged only one access 
fee for each of the NYSE American BBO and NYSE American Trades 
products, depending on the use of that product.

    The proposed rule change would result in lower fees for 
Redistributors of each of the NYSE American BBO and NYSE American 
Trades products that receive NYSE American BBO and NYSE American Trades 
data feeds and do not subscribe to any other market data product listed 
on the Fee Schedule, and use such market data products for external 
distribution only.\25\ The Exchange believes that the proposed fee 
reduction in NYSE American BBO and NYSE American Trades would provide 
an incentive for such Redistributors to subscribe to the NYSE BQT data 
feeds so that such product would be available to their customers, which 
have expressed an interest in subscribing to NYSE BQT.
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    \25\ The Per User Access Fee is 93% lower than the General 
Access Fee. Together with the corresponding proposed rule changes by 
NYSE and NYSE Arca to similarly reduce the access fees to their BBO 
and Trades products for Redistributors, such Redistributors would be 
eligible for significantly lower access fees for NYSE BQT, from 
$6,250 per month to $850 per month ($250 + $200 + $200 +$200), a 
reduction of more than 86%.
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    The proposed rule change is intended to encourage greater use of 
NYSE BQT by making it more affordable for Redistributors that have 
customers interested in subscribing to NYSE BQT but that do not 
currently subscribe to NYSE American BBO or NYSE American Trades or any 
other products listed on the Fee Schedule. The proposed fee reduction 
would allow the Exchange to compete more effectively with Nasdaq Basic 
and Cboe One Feed by expanding the number of Redistributors that would 
subscribe to NYSE BQT, and therefore make the product available to data 
subscribers interested in NYSE BQT.
Redistribution Fee--NYSE American Trades
    The Exchange currently charges a Redistribution Fee of $750 per 
month for NYSE American Trades. A Redistributor is required to report 
to the Exchange each month the number of Professional and Non-
Professional Users and data feed recipients that receive NYSE American 
Trades.
    The Exchange proposes to waive the Redistribution Fee for a 
Redistributor that is eligible for the Per User Access Fee if the 
Redistributor provides NYSE American Trades externally to at least one 
data feed recipient and reports such data feed recipient or recipients 
to the Exchange. For example, a Redistributor that subscribes to the 
NYSE American BBO and NYSE American Trades data feeds and does not 
subscribe to any other product listed on the Fee Schedule would have 
the Redistribution Fee waived for the month if such Redistributor 
provides NYSE American BBO and NYSE American Trades externally to at 
least one data feed recipient and reports such data feed recipient to 
the Exchange.
    By targeting this proposed fee waiver to Redistributors that 
provide external distribution of NYSE American Trades, the Exchange 
believes that this would provide an incentive for Redistributors to 
make the NYSE BQT market data product available to its customers. 
Specifically, if a data recipient is interested in subscribing to NYSE 
BQT and relies on a Redistributor to obtain market data products from 
the Exchange, that data recipient would need its Redistributor to 
redistribute NYSE BQT. Currently, Redistributors that redistribute some 
NYSE American market data products do not necessarily also make NYSE 
BQT available. The Exchange believes that this proposed fee waiver for 
Redistributors of NYSE American Trades would provide an incentive for 
Redistributors to make NYSE BQT available to their customers, which 
will increase the availability of NYSE BQT to a larger potential 
population of data recipients.\26\
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    \26\ NYSE American does not charge a Redistribution Fee for NYSE 
American BBO.
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Applicability of Proposed Rule Change
    As noted above, the proposed rule change is designed to further 
reduce the overall cost of NYSE BQT by reducing specified fees 
applicable to the underlying market data products that comprise NYSE 
BQT. Prior to the BQT Fee Reduction Filing, the Exchange had only one 
subscriber to NYSE BQT. Today, the Exchange has seven subscribers, 
three of whom became customers as a direct result of the BQT Fee 
Reduction Filing and currently pay the reduced Per User Access Fee. The 
Exchange believes that the proposed rule changes would provide a 
further incentive for Redistributors to subscribe to NYSE BQT for 
purposes of providing external distribution of NYSE BQT to potential 
data recipients interested in the product.
    Because the proposed rule change is targeted to potential 
Redistributors of NYSE BQT that do not currently subscribe to any NYSE 
market data products, the proposed changes to the availability of the 
NYSE American BBO and NYSE American Trades Per User Access Fees, 
together with the proposed changes on NYSE and NYSE Arca, are narrowly 
tailored with that purpose in mind. Accordingly, these proposed fee 
changes are not designed for Redistributors that are existing customers 
of NYSE American market data products or that engage in internal use of 
NYSE BQT. This proposed rule change would not result in any changes to 
the market data fees for NYSE American BBO and NYSE American Trades for 
such data subscribers.
    The Exchange believes that there are at least three potential 
Redistributors that would meet the qualifications to be eligible for 
these proposed fee changes. The Exchange further believes that this 
proposed rule change has the potential to attract these three 
Redistributors as new Redistributors for NYSE BQT, as well as new NYSE 
BQT subscribers that would be subscribing to NYSE American BBO and NYSE 
American Trades for the first time.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with the provisions of Section 6 of the Act,\27\ in general, and 
Sections 6(b)(4) and 6(b)(5) of the Act,\28\ in particular, in that it 
provides an equitable allocation of reasonable fees among users and 
recipients of the data and is not designed to permit unfair 
discrimination among customers, issuers, and brokers.
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    \27\ 15 U.S.C. 78f(b).
    \28\ 15 U.S.C. 78f(b)(4), (5).
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The Proposed Rule Change Is Reasonable
    In adopting Regulation NMS, the Commission granted SROs and broker-
dealers increased authority and flexibility to offer new and unique 
market data to the public. The Commission has repeatedly expressed its 
preference for competition over regulatory intervention in determining

[[Page 73560]]

prices, products, and services in the securities markets. Specifically, 
in Regulation NMS, the Commission highlighted the importance of market 
forces in determining prices and SRO revenues, and also recognized that 
current regulation of the market system ``has been remarkably 
successful in promoting market competition in its broader forms that 
are most important to investors and listed companies.'' \29\
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    \29\ See Regulation NMS Adopting Release, 70 FR 37495, at 37499.
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    With respect to market data, the decision of the United States 
Court of Appeals for the District of Columbia Circuit in NetCoalition 
v. SEC upheld the Commission's reliance on the existence of competitive 
market mechanisms to evaluate the reasonableness and fairness of fees 
for proprietary market data:

    In fact, the legislative history indicates that the Congress 
intended that the market system ``evolve through the interplay of 
competitive forces as unnecessary regulatory restrictions are 
removed'' and that the SEC wield its regulatory power ``in those 
situations where competition may not be sufficient,'' such as in the 
creation of a ``consolidated transactional reporting system.'' \30\
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    \30\ NetCoalition v. SEC, 615 F.3d 525, 535 (D.C. Cir. 2010) 
(``NetCoalition I'') (quoting H.R. Rep. No. 94-229 at 92 (1975), as 
reprinted in 1975 U.S.C.C.A.N. 323).

    The court agreed with the Commission's conclusion that ``Congress 
intended that `competitive forces should dictate the services and 
practices that constitute the U.S. national market system for trading 
equity securities.' '' \31\
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    \31\ Id. at 535.
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    More recently, the Commission confirmed that it applies a ``market-
based'' test in its assessment of market data fees, and that under that 
test:

the Commission considers whether the exchange was subject to 
significant competitive forces in setting the terms of its proposal 
for [market data], including the level of any fees. If an exchange 
meets this burden, the Commission will find that its fee rule is 
consistent with the Act unless there is a substantial countervailing 
basis to find that the terms of the rule violate the Act or the 
rules thereunder.\32\
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    \32\ See Securities Exchange Act Release No. 34-90217 (October 
16, 2020), 85 FR 67392 (October 22, 2020) (SR-NYSENAT-2020-05) 
(``National IF Approval Order'') (internal quotation marks omitted), 
quoting Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74770, 74781 (December 9, 2008) (``2008 ArcaBook 
Approval Order'').
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1. The Proposed Fees Are Constrained by Significant Competitive Forces
a. Exchange Market Data Is Sold in a Competitive Market
    In 2018, Charles M. Jones, the Robert W. Lear of Professor of 
Finance and Economics of the Columbia University School of Business, 
conducted an analysis of the market for equity market data in the 
United States. He canvassed the demand for both consolidated and 
exchange proprietary market data products and the uses to which those 
products were put by market participants, and reported his conclusions 
in a paper annexed hereto.\33\ Among other things, Professor Jones 
concluded that:
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    \33\ See Exhibit 3A, Charles M. Jones, Understanding the Market 
for U.S. Equity Market Data, August 31, 2018 (hereinafter ``Jones 
Paper'').
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     ``The market [for exchange market data] is characterized 
by robust competition: Exchanges compete with each other in selling 
proprietary market data products. They also compete with consolidated 
data feeds and with data provided by alternative trading systems 
(`ATSs'). Barriers to entry are very low, so existing exchanges must 
also take into account competition from new entrants, who generally try 
to build market share by offering their proprietary market data 
products for free for some period of time.'' \34\
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    \34\ Jones Paper at 2.
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     ``Although there are regulatory requirements for some 
market participants to use consolidated data products, there is no 
requirement for market participants to purchase any proprietary market 
data product for regulatory purposes.'' \35\
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    \35\ Id.
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     ``There are a variety of data products, and consumers of 
equity market data choose among them based on their needs. Like most 
producers, exchanges offer a variety of market data products at 
different price levels. Advanced proprietary market data products 
provide greater value to those who subscribe. As in any other market, 
each potential subscriber takes the features and prices of available 
products into account in choosing what market data products to buy 
based on its business model.'' \36\
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    \36\ Id.
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     ``Exchange equity market data fees are a small cost for 
the industry overall: the data demonstrates that total exchange market 
data revenues are orders of magnitude smaller than (i) broker-dealer 
commissions, (ii) investment bank earnings from equity trading, and 
(iii) revenues earned by third-party vendors.'' \37\
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    \37\ Id.
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     ``For proprietary exchange data feeds, the main question 
is whether there is a competitive market for proprietary market data. 
More than 40 active exchanges and alternative trading systems compete 
vigorously in both the market for order flow and in the market for 
market data. The two are closely linked: an exchange needs to consider 
the negative impact on its order flow if it raises the price of its 
market data. Furthermore, new entrants have been frequent over the past 
10 years or so, and these venues often give market data away for free, 
serving as a check on pricing by more established exchanges. These are 
all the standard hallmarks of a competitive market.'' \38\
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    \38\ Id. at 39-40.
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    Professor Jones' conclusions are consistent with the demonstration 
of the competitive constraints on the pricing of market data 
demonstrated by analysis of exchanges as platforms for market data and 
trading services, as shown below.\39\
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    \39\ More recently, Professors Jonathan Brogaard and James 
Brugler also looked at the market for proprietary market data 
products and confirmed that it is competitive. The authors document 
that introducing fees for market data leads to lower market share, 
and identify informed traders as the most affected trader categories 
after fees are introduced. See Jonathan Brogaard and James Brugler, 
Competition and Exchange Data Fees, October 2, 2020 (Exhibit 3B).
---------------------------------------------------------------------------

b. Exchanges That Offer Market Data and Trading Services Function as 
Two-Sided Platforms
    An exchange may demonstrate that its fees are constrained by 
competitive forces by showing that platform competition applies.
    As the United States Supreme Court recognized in Ohio v. American 
Express, platforms are firms that act as intermediaries between two or 
more sets of agents, and typically the choices made on one side of the 
platform affect the results on the other side of the platform via 
externalities, or ``indirect network effects.'' \40\ Externalities are 
linkages between the different ``sides'' of a platform such that one 
cannot understand pricing and competition for goods or services on one 
side of the platform in isolation; one must also account for the 
influence of the other side. As the Supreme Court explained:
---------------------------------------------------------------------------

    \40\ Ohio v. American Express, 138 S. Ct. 2274, 2280-81 (2018).

    To ensure sufficient participation, two-sided platforms must be 
sensitive to the prices that they charge each side. . . . Raising 
the price on side A risks losing participation on that side, which 
decreases the value of the platform to side B. If the

[[Page 73561]]

participants on side B leave due to this loss in value, then the 
platform has even less value to side A--risking a feedback loop of 
declining demand. . . . Two-sided platforms therefore must take 
these indirect network effects into account before making a change 
in price on either side.\41\
---------------------------------------------------------------------------

    \41\ Id. at 2281.

    The Exchange and its affiliated exchanges have long maintained that 
they function as platforms between consumers of market data and 
consumers of trading services. Proving the existence of linkages 
between the two sides of this platform requires an in-depth economic 
analysis of both public data and confidential Exchange data about 
particular customers' trading activities and market data purchases. 
Exchanges, however, are prohibited from sharing details about these 
specific customer activities and purchases. For example, pursuant to 
Exchange Rule 7.41E, transactions executed on the Exchange are 
processed anonymously.
    The Exchange and its affiliated exchanges retained a third party 
expert, Marc Rysman, Professor of Economics Boston University, to 
analyze how platform economics applies to stock exchanges' sale of 
market data products and trading services, and to explain how this 
affects the assessment of competitive forces affecting the exchanges' 
data fees.\42\ Professor Rysman was able to analyze exchange data that 
is not otherwise publicly available in a manner that is consistent with 
the exchanges' confidentiality obligations to customers. As shown in 
his paper, Professor Rysman surveyed the existing economic literature 
analyzing stock exchanges as platforms between market data and trading 
activities, and explained the types of linkages between market data 
access and trading activities that must be present for an exchange to 
function as a platform. In addition, Professor Rysman undertook an 
empirical analysis of customers' trading activities within the NYSE 
group of exchanges in reaction to NYSE's introduction in 2015 of the 
NYSE Integrated Feed, a full order-by-order depth of book data 
product.\43\
---------------------------------------------------------------------------

    \42\ See Exhibit 3C, Marc Rysman, Stock Exchanges as Platforms 
for Data and Trading, December 2, 2019 (hereinafter ``Rysman 
Paper''), ] 7.
    \43\ See Securities Exchange Act Release Nos. 74128 (January 23, 
2015), 80 FR 4951 (January 29, 2015) (SR-NYSE-2015-03) (Notice of 
filing and immediate effectiveness of proposed rule change to 
establish NYSE Integrated Feed) and 76485 (November 20, 2015), 80 FR 
74158 (November 27, 2015) (SR-NYSE-2015-57) (Notice of filing and 
immediate effectiveness of proposed rule change to establish fees 
for the NYSE Integrated Feed).
---------------------------------------------------------------------------

    Professor Rysman's analysis of this confidential firm-level data 
shows that firms that purchased the NYSE Integrated Feed market data 
product after its introduction were more likely to route orders to NYSE 
as opposed to one of the other NYSE-affiliated exchanges, such as NYSE 
Arca or NYSE American.\44\ Moreover, Professor Rysman shows that the 
same is true for firms that did not subscribe to the NYSE Integrated 
Feed: The introduction of the NYSE Integrated Feed led to more trading 
on NYSE (as opposed to other NYSE-affiliated exchanges) by firms that 
did not subscribe to the NYSE Integrated Feed.\45\ This is the sort of 
externality that is a key characteristic of a platform market.\46\
---------------------------------------------------------------------------

    \44\ Rysman Paper ]] 79-89.
    \45\ Id. ]] 90-91.
    \46\ Id. ] 90.
---------------------------------------------------------------------------

    From this empirical evidence, Professor Rysman concludes:
     ``[D]ata is more valuable when it reflects more trading 
activity and more liquidity-providing orders. These linkages alone are 
enough to make platform economics necessary for understanding the 
pricing of market data.'' \47\
---------------------------------------------------------------------------

    \47\ Id. ] 95.
---------------------------------------------------------------------------

     ``[L]inkages running in the opposite direction, from data 
to trading, are also very likely to exist. This is because market data 
from an exchange reduces uncertainty about the likelihood, price, or 
timing of execution for an order on that exchange. This reduction in 
uncertainty makes trading on that exchange more attractive for traders 
that subscribe to that exchange's market data. Increased trading by 
data subscribers, in turn, makes trading on the exchange in question 
more attractive for traders that do not subscribe to the exchange's 
market data.'' \48\
---------------------------------------------------------------------------

    \48\ Id. ] 96.
---------------------------------------------------------------------------

     The ``mechanisms by which market data makes trading on an 
exchange more attractive for subscribers to market data . . . apply to 
a wide assortment of market data products, including BBO, order book, 
and full order-by-order depth of book data products at all exchanges.'' 
\49\
---------------------------------------------------------------------------

    \49\ Id.
---------------------------------------------------------------------------

     ``[E]mpirical evidence confirms that stock exchanges are 
platforms for data and trading.'' \50\
---------------------------------------------------------------------------

    \50\ Id. ] 97.
---------------------------------------------------------------------------

     ``The platform nature of stock exchanges means that data 
fees cannot be analyzed in isolation, without accounting for the 
competitive dynamics in trading services.'' \51\
---------------------------------------------------------------------------

    \51\ Id. ] 98.
---------------------------------------------------------------------------

     ``Competition is properly understood as being between 
platforms (i.e., stock exchanges) that balance the needs of consumers 
of data and traders.'' \52\
---------------------------------------------------------------------------

    \52\ Id.
---------------------------------------------------------------------------

     ``Data fees, data use, trading fees, and order flow are 
all interrelated.'' \53\
---------------------------------------------------------------------------

    \53\ Id.
---------------------------------------------------------------------------

     ``Competition for order flow can discipline the pricing of 
market data, and vice-versa.'' \54\
---------------------------------------------------------------------------

    \54\ Id.
---------------------------------------------------------------------------

     ``As with platforms generally, overall competition between 
exchanges will limit their overall profitability, not margins on any 
particular side of the platform.'' \55\
---------------------------------------------------------------------------

    \55\ Id. ] 100.
---------------------------------------------------------------------------

c. Exchange Market Data Fees Are Constrained by the Availability of 
Substitute Platforms
    Professor Rysman's conclusions that exchanges function as platforms 
for market data and transaction services mean that exchanges do not set 
fees for market data products without considering, and being 
constrained by, the effect the fees will have on the order-flow side of 
the platform. And as the D.C. Circuit recognized in NetCoalition I, 
``[n]o one disputes that competition for order flow is fierce.'' \56\ 
The court further noted that ``no exchange possesses a monopoly, 
regulatory or otherwise, in the execution of order flow from broker 
dealers,'' and that an exchange ``must compete vigorously for order 
flow to maintain its share of trading volume.'' \57\
---------------------------------------------------------------------------

    \56\ NetCoalition I, 615 F.3d at 544 (internal quotation 
omitted).
    \57\ Id.
---------------------------------------------------------------------------

    As noted above, while Regulation NMS has enhanced competition, it 
has also fostered a ``fragmented'' market structure where trading in a 
single stock can occur across multiple trading centers. When multiple 
trading centers compete for order flow in the same stock, the 
Commission has recognized that ``such competition can lead to the 
fragmentation of order flow in that stock.'' \58\ The Commission's 
Division of Trading and Markets has also recognized that with so many 
``operating equities exchanges and dozens of ATSs, there is vigorous 
price competition among the U.S. equity markets and, as a result, 
[transaction] fees are tailored and frequently modified to attract 
particular types of order flow, some of which is highly fluid and price 
sensitive.'' \59\ Indeed,

[[Page 73562]]

today, equity trading is currently dispersed across 16 exchanges,\60\ 
numerous alternative trading systems,\61\ broker-dealer internalizers 
and wholesalers, all competing for order flow. Based on publicly-
available information, no single exchange currently has more than 18% 
market share.\62\
---------------------------------------------------------------------------

    \58\ See Securities Exchange Act Release No. 61358, 75 3594, 
3597 (January 21, 2010) (File No. S7-02-10) (Concept Release on 
Equity Market Structure).
    \59\ Commission Division of Trading and Markets, Memorandum to 
EMSAC, dated October 20, 2015, available here: https://www.sec.gov/spotlight/emsac/memo-maker-taker-fees-on-equities-exchanges.pdf.
    \60\ See Cboe Global Markets, U.S. Equities Market Volume 
Summary, available at http://markets.cboe.com/us/equities/market_share/. See generally https://www.sec.gov/fast-answers/divisionsmarketregmrexchangesshtml.html.
    \61\ See FINRA ATS Transparency Data, available at https://otctransparency.finra.org/otctransparency/AtsIssueData. A list of 
alternative trading systems registered with the Commission is 
available at https://www.sec.gov/foia/docs/atslist.htm.
    \62\ See Cboe Global Markets U.S. Equities Market Volume 
Summary, available at http://markets.cboe.com/us/equities/market_share/.
---------------------------------------------------------------------------

    Further, low barriers to entry mean that new exchanges may, and do, 
rapidly and inexpensively enter the market and offer additional 
substitute platforms to compete with the Exchange.\63\ For example, in 
2020 alone, three new exchanges have entered the market: Long Term 
Stock Exchange (LTSE), which began operations as an exchange on August 
28, 2020; \64\ Members Exchange (MEMX), which began operations as an 
exchange on September 29, 2020; \65\ and Miami International Holdings 
(MIAX), which began operations of its first equities exchange on 
September 29, 2020.\66\
---------------------------------------------------------------------------

    \63\ See Jones Paper at 10-11.
    \64\ See LTSE Market Announcement: MA-2020-020, dated August 14, 
2020, announcing LTSE production securities phase-in planned for 
August 28, available here: https://assets.ctfassets.net/cchj2z2dcfyd/rnGvgggJUplaIk6N1xNA7/41926d3925a177d6455868090c46aeda/MA-2020-020__Production_Securities_Launching_August_28_-_Google_Docs.pdf and LTSE Market Announcement: MA-2020-025, 
available here: https://assets.ctfassets.net/cchj2z2dcfyd/52nIKwAuOraU1agaNY5j80/0d27ab0eb9b540c67a5e9f831f23f0ac/MA-2020-025.pdf.
    \65\ As of October 29, 2020, MEMX is trading all NMS symbols but 
has not yet enabled NMS routing. See https://info.memxtrading.com/trader-alert-20-10-memx-trading-symbols-update/.
    \66\ See MIAX Pearl Press release, dated September 29, 2020, 
available here: https://www.miaxoptions.com/sites/default/files/alert-files/MIAX_Press_Release_09292020.pdf.
---------------------------------------------------------------------------

    These low barriers enable existing exchange customers to 
disintermediate and start their own exchanges if they think the prices 
charged for exchange proprietary market data products are too high. 
This is precisely the rationale behind the creation of MEMX, which was 
formed by some of the largest and most well capitalized financial firms 
that are also Exchange customers (including Bank of America, BlackRock, 
Charles Schwab, Citadel, Citi, E*Trade, Fidelity, Goldman Sachs, J.P. 
Morgan, Jane Street, Morgan Stanley, TD Ameritrade, and others).\67\
---------------------------------------------------------------------------

    \67\ MEMX Home Page (``Founded by members and investors, MEMX 
aims to drive simplicity, efficiency, and competition in equity 
markets.''), available at https://memx.com/.
---------------------------------------------------------------------------

    For example, one of MEMX's founding principles is that exchange 
proprietary market data prices are too high, and that MEMX will benefit 
its members by offering ``[l]ower pricing on market data.'' \68\ Nor is 
this a new phenomenon: Exchange customers formed BATS to compete with 
incumbent exchanges and once registered as an exchange in 2008, BATS 
did not initially charge for market data. The BATS venture was a 
financial success for its founders, first through recouping their 
investment in its initial public offering and then in the subsequent 
sale of BATS to Cboe, which now charges for market data from those 
exchanges. Notably, MEMX has some of the same founding broker-dealer 
customers, leading some to dub MEMX ``BATS 2.0.'' \69\
---------------------------------------------------------------------------

    \68\ MEMX home page, available at https://memx.com/.
    \69\ See ``MEMX turns up the heat on US stock exchanges,'' 
Financial Times, January 9, 2019, available at https://www.ft.com/content/4908c8b0-1418-11e9-a581-4ff78404524e; see also ``US equities 
exchanges: If you can't beat them, join them,'' Euromoney, February 
13, 2019, available at  https://www.euromoney.com/article/b1d3tfby4p3y4v/us-equities-exchanges-if-you-cant-beat-them-join-them.
---------------------------------------------------------------------------

    The fact that this cycle is viable and repeatable by entities that 
both trade on and compete with existing exchanges confirms that 
barriers to entry are low and that these markets are competitive and 
contestable.\70\ And low barriers to entry act as a market check on 
high prices.\71\
---------------------------------------------------------------------------

    \70\ United States v. SunGard Data Sys., 172 F. Supp. 2d 172, 
186 (D.D.C. 2001) (recognizing that ``[a]s a matter of law, courts 
have generally recognized that when a customer can replace the 
services of an external product with an internally-created system, 
this captive output (i.e., the self-production of all or part of the 
relevant product) should be included in the same market.''). In 
SunGard, the court rejected the Antitrust Division's attempt to 
block SunGuard's acquisition of the disaster recovery assets of 
Comdisco on the basis that the acquisition would ``substantially 
lessen competition in the market for shared hotsite disaster 
recovery services,'' when the evidence showed that ``internal 
hotsites'' created by customers competed with the ``external shared 
hotsite business'' engaged in by the merging parties. Id. at 173-74, 
187.
    \71\ United States v. Baker Hughes, 908 F.2d 981, 987 (1990) 
(``In the absence of significant barriers [to entry], a company 
probably cannot maintain supracompetitive pricing for any length of 
time.''); see also David S. Evans and Richard Schmalensee, Markets 
with Two-Sided Platforms, in 1 Issues In Competition Law And Policy 
667, 685 (ABA Section of Antitrust Law 2008) (noting that exchange 
mergers in 2005 and 2006 were approved by competition authorities in 
part in reliance on planned and likely entry of other firms).
---------------------------------------------------------------------------

    Given Professor Rysman's conclusion that exchanges are platforms 
for market data and trading, this fierce competition for order flow on 
the trading side of the platform acts to constrain, or ``discipline,'' 
the pricing of market data on the other side of the platform.\72\ And 
due to the ready availability of substitutes and the low cost to move 
order flow to those substitute trading venues, an exchange setting 
market data fees that are not at competitive levels would expect to 
quickly lose business to alternative platforms with more attractive 
pricing.\73\ Although the various exchanges may differ in their 
strategies for pricing their market data products and their transaction 
fees for trades--with some offering market data for free along with 
higher trading costs, and others charging more for market data and 
comparatively less for trading--the fact that exchanges are platforms 
ensures that no exchange makes pricing decisions for one side of its 
platform without considering, and being constrained by, the effects 
that price will have on the other side of the platform.\74\
---------------------------------------------------------------------------

    \72\ Rysman Paper ] 98.
    \73\ See Jones Paper at 11.
    \74\ In the context of the fee proposal that led to the National 
IF Approval Order, supra note 33, one commenter contended that 
trading was not a platform with exchange proprietary market data, 
and that the exchanges' proprietary market data products were 
instead ``complements'' for which exchanges could charge 
supracompetitive prices. Professor Rysman debunked these contentions 
in an additional paper. See Marc Rysman, Complements, Competition, 
and Exchange Proprietary Data Products, August 13, 2020 (Exhibit 
3D).
---------------------------------------------------------------------------

    In sum, the fierce competition for order flow thus constrains any 
exchange from pricing its market data at a supracompetitive price, and 
constrains the Exchange in setting its fees at issue here.
    The proposed fees are therefore reasonable because in setting them, 
the Exchange is constrained by the availability of numerous substitute 
platforms offering market data products and trading. Such substitutes 
need not be identical, but only substantially similar to the product at 
hand.
    More specifically, in reducing specified fees for the NYSE American 
BBO and NYSE American Trades market data products, the Exchange is 
constrained by the fact that, if its pricing across the platform is 
unattractive to customers, customers have their pick of an increasing 
number of alternative platforms to use instead of the Exchange. The 
Exchange believes that it has considered all relevant factors and has 
not considered irrelevant factors in

[[Page 73563]]

order to establish reasonable fees. The existence of numerous 
alternative platforms to the Exchange's platform ensures that the 
Exchange cannot set unreasonable market data fees without suffering the 
negative effects of that decision in the fiercely competitive market 
for trading order flow.
d. The Availability of Substitute Market Data Products Constrains Fees 
for NYSE American BBO, NYSE American Trades, and NYSE BQT
    Even putting aside the facts that exchanges are platforms and that 
pricing decisions on the two sides of the platform are intertwined, the 
Exchange is constrained in setting the proposed market data fees by the 
availability of numerous substitute market data products. The 
Commission has been clear that substitute products need not be 
identical, but only substantially similar to the product at hand.\75\
---------------------------------------------------------------------------

    \75\ For example, in the National IF Approval Order, the 
Commission recognized that for some customers, the best bid and 
offer information from consolidated data feeds may function as a 
substitute for the NYSE National Integrated Feed product, which 
contains order by order information. See National IF Approval Order, 
supra note 33, at 67397 [release p. 21] (``[I]nformation provided by 
NYSE National demonstrates that a number of executing broker-dealers 
do not subscribe to the NYSE National Integrated Feed and executing 
broker-dealers can otherwise obtain NYSE National best bid and offer 
information from the consolidated data feeds.'' (internal quotations 
omitted)).
---------------------------------------------------------------------------

    The NYSE BQT market data product is subject to significant 
competitive forces that constrain its pricing. Specifically, as 
described above, NYSE BQT competes head-to-head with the Nasdaq Basic 
product and the Cboe One Feed. These products each serve as reasonable 
substitutes for one another as they are each designed to provide 
investors with a unified view of real-time quotes and last-sale prices 
in all Tape A, B, and C securities. Each product provides subscribers 
with consolidated top-of-book quotes and trades from multiple U.S. 
equities markets. In the case of NYSE BQT, this product provides top-
of-book quotes and trades data from five NYSE-affiliated U.S. equities 
exchanges, which together account for approximately 22% of consolidated 
U.S. equities trading volume as of September 2020.\76\ Cboe One Feed 
similarly provides top-of-book quotes and trades data from Cboe's four 
U.S. equities exchanges. NYSE BQT, Nasdaq Basic, and Cboe One Feed are 
all intended to provide indicative pricing and are not intended to be 
used for order routing or trading decisions.
---------------------------------------------------------------------------

    \76\ See Cboe Global Markets U.S. Equities Market Volume 
Summary, available at https://markets.cboe.com/us/equities/market_share/market/2019-10-31/.
---------------------------------------------------------------------------

    In addition to competing with proprietary data products from Nasdaq 
and Cboe, NYSE BQT also competes with the consolidated data feed. 
However, the Exchange does not claim that NYSE BQT is a substitute for 
consolidated data with respect to requirements under the Vendor Display 
Rule, which is Regulation NMS Rule 603(c).
    The fact that this filing is proposing reductions in certain fees 
and fee waivers is itself confirmation of the inherently competitive 
nature of the market for the sale of proprietary market data. For 
example, in August 2019, Cboe filed proposed rule changes to reduce 
certain of its Cboe One Feed fees and noted that it attracted two 
additional customers because of the reduced fees.\77\ More recently, 
Nasdaq filed a proposed rule change to lower the enterprise license fee 
for broker-dealers distributing Nasdaq Basic to internal Professional 
subscribers and the enterprise license fee for broker-dealers 
distributing Nasdaq Last Sale to Professional subscribers.\78\
---------------------------------------------------------------------------

    \77\ See Securities Exchange Act Release Nos. 86667 (August 14, 
2019) (SR-CboeBZX-2019-069); 86670 (August 14, 2019) (SR-CboeBYX-
2019-012); 86676 (August 14, 2019) (SR-CboeEDGA-2019-013); and 86678 
(August 14, 2019) (SR-CboeEDGX-2019-048) (Notices of filing and 
Immediate effectiveness of proposed rule change to reduce fees for 
the Cboe One Feed) (collectively ``Cboe One Fee Filings''). The Cboe 
One Fee Filings were in effect from August 1, 2019 until September 
30, 2019, when the Commission suspended them and instituted 
proceedings to determine whether to approve or disapprove those 
proposals. See, e.g., Securities Exchange Act Release No. 87164 
(September 30, 2019), 84 FR 53208 (October 4, 2019) (SR-CboeBZX-
2019-069). On October 1, 2019, the Cboe equities exchanges refiled 
the Cboe One Fee Filings on the basis that they had new customers 
subscribe as a result of the Cboe One Fee Filings, and therefore its 
fee proposal had increased competition for top-of-book market data. 
See Securities Exchange Act Release Nos. 87312 (October 15, 2019), 
84 FR 56235 (October 21, 2019) (SR-CboeBZX-2019-086); 87305 (October 
14, 2019), 84 FR 56210 (October 21, 2019) (SR-CboeBYX-2019-015); 
87295 (October 11, 2019), 84 FR 55624 (October 17, 2019) (SR-
CboeEDGX-2019-059); and 87294 (October 11, 2019), 84 FR 55638 
(October 17, 2019) (SR-CboeEDGA-2019-015) (Notices of filing and 
immediate effectiveness of proposed rule changes to re-file the 
Small Retail Broker Distribution Program) (``Cboe One Fee Re-
Filings''). On November 26, 2019, the Commission suspended the Cboe 
One Fee Re-Filings and instituted proceedings to determine whether 
to approve or disapprove those proposals. See, e.g., Securities 
Exchange Act Release No. 87629 (November 26, 2019), 84 FR 66245 
(December 3, 2019) (SR-CboeBZX-2019-086). On November 27, 2019, the 
Cboe equities exchanges refiled the Cboe One Fee Filings with one 
revision to the requirements for participating in the Small Retail 
Broker Distribution Program and additional information about the 
basis for the proposed fee changes. See Securities Exchange Act 
Release Nos. 87712 (December 10, 2019), 84 FR 68508 (December 16, 
2019) (SR-CboeBZX-2019-101); 88713 (December 10, 2019), 84 FR 68530 
(December 16, 2019) (SR-CboeBYX-2019-023); 87709 (December 10, 
2019), 84 FR 68523 (December 16, 2019) (SR-CboeEDGA-2019-021); and 
87711 (December 10, 2019), 84 FR 68501 (December 16, 2019) (SR-Cboe-
EDGX-2019-071) (Notices of filing and immediate effectiveness of 
proposed rule changes to introduce a Small Retail Broker 
Distribution Program) (``Cboe One Third Fee Re-Filings''). On 
February 4, 2020, the Cboe equities exchanges withdrew the Cboe One 
Third Fee Re-Filings and, on the same date, refiled the Cboe One Fee 
Filings. See Securities Exchange Act Release Nos. 88221 (February 
14, 2020), 85 FR 9904 (February 20, 2020) (SR-CboeBYX-2020-007); 
88218 (February 14, 2020), 85 FR 9827 (February 20, 2020) (SR-
CboeBZX-2020-014); 88220 (February 14, 2020), 85 FR 9912 (February 
20, 2020) (SR-CboeEDGA-2020-004); and 88219 (February 14, 2020), 85 
FR 9872 (February 20, 2020) (SR-CboeEDGX-2020-008) (Notices of 
filing and immediate effectiveness of proposed rule changes to 
introduce a Small Retail Broker Distribution Program) (``Cboe One 
Fourth Fee Re-Filings''). On April 15, 2020, the Cboe equities 
exchanges withdrew the Cboe One Fee Filings and the Cboe One Fee Re-
Filings. Pursuant to the Cboe One Fourth Fee Re-Filings, the Small 
Retail Broker Distribution Program is currently in effect at the 
Cboe equities exchanges.
    \78\ See Securities Exchange Act Release No. 90177 (October 14, 
2020), 85 FR 66620 (October 20, 2020) (SR-NASDAQ-2020-065) (Notice 
of Filing and Immediate Effectiveness of Proposed Rule Change To 
Lower the Enterprise License Fee for Broker-Dealers Distributing 
Nasdaq Basic to Internal Professional Subscribers as Set Forth in 
the Equity 7 Pricing Schedule, Section 147, and the Enterprise 
License Fee for Broker-Dealers Distributing Nasdaq Last Sale to 
Professional Subscribers at Equity 7, Section 139).
---------------------------------------------------------------------------

    The Exchange notes that NYSE American BBO, NYSE American Trades, 
and NYSE BQT are entirely optional. The Exchange is not required to 
make the proprietary data products that are the subject of this 
proposed rule change available or to offer any specific pricing 
alternatives to any customers, nor is any firm or investor required to 
purchase the Exchange's data products. Unlike some other data products 
(e.g., the consolidated quotation and last-sale information feeds) that 
firms are required to purchase in order to fulfil regulatory 
obligations,\79\ a customer's decision whether to purchase any of the 
Exchange's proprietary market data feeds is entirely discretionary. 
Most firms that choose to subscribe to proprietary market data feeds 
from the Exchange and its affiliates do so for the primary goals of 
using them to increase their revenues, reduce their expenses, and in 
some instances compete directly with the Exchange's trading services. 
Such firms are able to determine for

[[Page 73564]]

themselves whether or not the products in question or any other similar 
products are attractively priced. If market data feeds from the 
Exchange and its affiliates do not provide sufficient value to firms 
based on the uses those firms may have for it, such firms may simply 
choose to conduct their business operations in ways that do not use the 
products.\80\
---------------------------------------------------------------------------

    \79\ The Exchange notes that broker-dealers are not required to 
purchase proprietary market data to comply with their best execution 
obligations. See In the Matter of the Application of Securities 
Industry and Financial Markets Association for Review of Actions 
Taken by Self-Regulatory Organizations, Release Nos. 34-72182; AP-3-
15350; AP-3-15351 (May 16, 2014). Similarly, there is no requirement 
in Regulation NMS or any other rule that proprietary data be 
utilized for order routing decisions, and some broker-dealers and 
ATSs have chosen not to do so.
    \80\ See generally Jones Paper at 8, 10-11.
---------------------------------------------------------------------------

    In addition, in the case of products that are also redistributed 
through market data vendors, such as Bloomberg and Refinitiv, the 
vendors themselves provide additional price discipline for proprietary 
data products because they control the primary means of access to 
certain end users. These vendors impose price discipline based upon 
their business models. For example, vendors that assess a surcharge on 
data they sell are able to refuse to offer proprietary products that 
their end users do not or will not purchase in sufficient numbers. This 
competitive constraint is precisely what is driving the proposed fee 
changes here, which are designed to attract new market data vendors, 
and through them new subscribers, to the NYSE BQT product. Currently, 
only four vendors subscribe to NYSE BQT, and each vendor has limited 
redistribution of NYSE BQT. No other vendors currently subscribe to 
NYSE BQT and likely will not unless their customers request it, and 
customers will not elect to pay the proposed fees unless such product 
can provide value by sufficiently increasing revenues or reducing costs 
in the customer's business in a manner that will offset the fees. All 
of these factors operate as constraints on pricing proprietary data 
products.
    Because of the availability of substitutes, an exchange that 
overprices its market data products stands a high risk that users may 
substitute another source of market data information for its own. Those 
competitive pressures imposed by available alternatives are evident in 
the Exchange's proposed pricing.
    In setting 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 considered irrelevant 
factors in order to establish reasonable fees. The existence of 
numerous alternatives to the Exchange's platform and, more 
specifically, alternatives to the market data products, including 
proprietary data from other sources, ensures that the Exchange cannot 
set unreasonable fees when vendors and subscribers can elect these 
alternatives or choose not to purchase a specific proprietary data 
product if the attendant fees are not justified by the returns that any 
particular vendor or data recipient would achieve through the purchase.
2. The Proposed Fees Are Reasonable
    The specific fees that the Exchange proposes for NYSE American BBO 
and NYSE American Trades are reasonable, for the following additional 
reasons.
    Overall. This proposed fee change is a result of the competitive 
environment, as the Exchange seeks to decrease certain of its fees to 
attract Redistributors that do not currently subscribe to the NYSE BQT 
market data product. The Exchange is proposing the fee reductions at 
issue to make the Exchange's fees more competitive for a specific 
segment of market participants, thereby increasing the availability of 
the Exchange's data products, and expanding the options available to 
firms making data purchasing decisions based on their business needs. 
The Exchange believes that this is consistent with the principles 
contained in Regulation NMS to ``promote the wide availability of 
market data and to allocate revenues to SROs that produce the most 
useful data for investors.'' \81\
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    \81\ See Regulation NMS Adopting Release, 70 FR 37495, at 37503.
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    Access Fee. By making the reduced Per User Access Fee available to 
Redistributors that subscribe only to the NYSE American BBO and NYSE 
American Trades data feeds and NYSE BQT and do not have any internal 
use of such products, and do not subscribe to any other products listed 
on the Fee Schedule, the Exchange believes that more Redistributors may 
choose to subscribe to these products, thereby expanding the 
distribution of this market data for the benefit of investors that 
participate in the national market system and increasing competition 
generally. The Exchange also believes that offering the Per User Access 
Fee to these Redistributors would expand the availability of NYSE BQT 
to potential data recipients that are interested in subscribing to NYSE 
BQT but do not have access to a Redistributor who subscribes to the 
data feeds.
    The Exchange determined to make the reduced Per User Access Fee 
available to these Redistributors because it constitutes a substantial 
reduction of the current fee, with the intended purpose of increasing 
use of NYSE BQT by Redistributors that do not currently subscribe to 
any NYSE American market data products. NYSE BQT has been in place 
since 2014 but has a very small number of subscribers. The Exchange 
believes that in order to compete with other indicative pricing 
products such as Nasdaq Basic and Cboe One Feed, it needs to provide a 
meaningful financial incentive for more Redistributors to choose to 
subscribe to NYSE BQT so that they can make it available to their 
customers. Accordingly, the proposed reduction to the access fees for 
NYSE American BBO and NYSE American Trades, together with the proposed 
reduction to the access fees for NYSE BBO, NYSE Trades, NYSE Arca BBO, 
and NYSE Arca Trades, is reasonable because the reductions will make 
NYSE BQT a more attractive offering for Redistributors that do not 
currently subscribe to any NYSE American market data products and make 
it more competitive with Nasdaq Basic and Cboe One Feed. For example, 
the External Distribution Fee for Cboe One Feed is currently $5,000 
(which is the sum of the External Distribution fees for the four 
exchange data products that are included in Cboe One Feed) plus a Data 
Consolidation Fee of $1,000, for a total of $6,000. Evidence of the 
competition among exchange groups for these products has previously 
been demonstrated via fee changes. For example, following the 
introduction of the Cboe One Feed, Nasdaq responded by reducing its 
fees for the Nasdaq Basic product.\82\ With the proposed changes by the 
Exchange, NYSE, and NYSE Arca, the Exchange is similarly seeking to 
compete by decreasing the total access fees for NYSE BQT from $6,250 to 
$850 for Redistributors that do not currently subscribe to any NYSE 
American market data products and have customers that are interested in 
subscribing to NYSE BQT but cannot do so until their Redistributor also 
subscribes. This proposed rule change therefore demonstrates the 
existence of an effective, competitive market because this proposal 
resulted from a need to generate innovative approaches in response to 
competition from other exchanges that offer market data for a specific 
segment of market participants.
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    \82\ See e.g., Securities Exchange Act Release No. 83751 (July 
31, 2018), 83 FR 38428 (August 6, 2018) (SR-NASDAQ-2018-058) (Notice 
of Filing and Immediate Effectiveness of Proposed Rule Change To 
Lower Fees and Administrative Costs for Distributors of Nasdaq 
Basic, Nasdaq Last Sale, NLS Plus and the Nasdaq Depth-of-Book 
Products Through a Consolidated Enterprise License). Nasdaq filed 
the proposed fee change to lower the Enterprise Fee for Nasdaq Basic 
and other market data products in response to the Enterprise Fee for 
the Cboe One Feed adopted by Cboe family of exchanges.

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[[Page 73565]]

    Redistribution Fees. Similarly, the proposed waiver of the NYSE 
American Trades Redistribution Fee is reasonable because it is designed 
to provide an incentive for Redistributors to make NYSE BQT available 
so that data recipients can subscribe to NYSE BQT. The Exchange further 
believes that the proposed waiver of the NYSE American Trades 
Redistribution Fee is reasonable because it is designed to compete with 
market data products offered by the Cboe family of equity 
exchanges.\83\
---------------------------------------------------------------------------

    \83\ See, e.g., BZX Price List--U.S. Equities available at 
http://www.nasdaqtrader.com/Trader.aspx?id=DPUSdata#db. BZX charges 
$500 per month for internal distribution, and $2,500 per month for 
external distribution, of BZX Last Sale. BZX also charges $500 per 
month for internal distribution, and $2,500 per month for external 
distribution, of BZX Top. See Cboe BZX U.S. Equities Exchange Fee 
Schedule at http://markets.cboe.com/us/equities/membership/fee_schedule/bzx/.
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    For all of the foregoing reasons, the Exchange believes that the 
proposed fees are reasonable.
The Proposed Fees Are Equitably Allocated
    The Exchange believes the proposed fees for NYSE American BBO and 
NYSE American Trades are allocated fairly and equitably among the 
various categories of users of the feed, and any differences among 
categories of users are justified.
    Overall. As noted above, this proposed fee change is a result of 
the competitive environment for market data products that provide 
indicative pricing information across a family of exchanges. To respond 
to this competitive environment, the Exchange seeks to amend its fees 
to access NYSE American BBO and NYSE American Trades for Redistributors 
that would be subscribing only to the NYSE American BBO and NYSE 
American Trades data feeds and would use these market data products for 
external distribution only, which the Exchange hopes will attract new 
Redistributor subscribers for the NYSE BQT market data product so that 
the product can be made available to prospective market data 
recipients. The Exchange is proposing the fee reductions to make the 
Exchange's fees more competitive for a specific segment of market 
participants, thereby increasing the availability of the Exchange's 
data products, expanding the options available to firms making data 
purchasing decisions based on their business needs, and generally 
increasing competition.
    Access Fee. The Exchange believes that making the Per User Access 
Fee available to Redistributors that would be subscribing only to the 
NYSE American BBO and NYSE American Trades data feeds and would use 
these market data products for external distribution only is equitable 
as it would apply equally to all data recipients that choose to 
subscribe to NYSE American BBO or NYSE American Trades for external 
distribution only and who do not subscribe to any other products listed 
on the Fee Schedule. Because NYSE American BBO and NYSE American Trades 
are optional products, any data recipient could choose to subscribe 
only to NYSE American BBO or NYSE American Trades to distribute 
externally and be eligible for the proposed reduced fee. The Exchange 
does not believe that it is inequitable that this proposed fee 
reduction would be available only to data recipients that subscribe 
only to NYSE American BBO or NYSE American Trades and only for external 
distribution. Internal use of data represents a different set of use 
cases than a Redistributor that is engaged only in external 
distribution of data. For example, non-display data can be used by data 
recipients for a wide variety of profit-generating purposes, including 
proprietary and agency trading and smart order routing, as well as by 
data recipients that operate order matching and execution platforms 
that compete directly with the Exchange for order flow. The data also 
can be used for a variety of non-trading purposes that indirectly 
support trading, such as risk management and compliance. Although some 
of these non-trading uses do not directly generate revenues, they can 
nonetheless substantially reduce the recipient's costs by automating 
such functions so that they can be carried out in a more efficient and 
accurate manner and reduce errors and labor costs, thereby benefiting 
end users. The Exchange believes that charging a different access fee 
for a Redistributor that is engaged solely in external distribution of 
only the NYSE American BBO and NYSE American Trades products is 
equitable because it would make NYSE BQT available to more data 
recipients that are customers of such Redistributors and who would not 
otherwise be able to access NYSE BQT if their Redistributor did not 
subscribe to and redistribute NYSE BQT.
    Redistribution Fees. The Exchange believes the proposed change to 
provide a waiver of the Redistribution Fee to a Redistributor that 
would be eligible for the Per User Access Fee because it only 
externally redistributes NYSE American Trades to at least one data feed 
recipient is equitably allocated. The proposed change would apply 
equally to all Redistributors that are eligible for the Per User Access 
Fee and choose to externally redistribute the NYSE American Trades 
product, and would serve as an incentive for Redistributors to make 
NYSE American Trades more broadly available for use by both 
Professional and Non-Professional Users. This, in turn, could provide 
an incentive for Redistributors that do not currently subscribe to any 
NYSE American market data products to subscribe to NYSE BQT and make it 
available to their customers.
    For all of the foregoing reasons, the Exchange believes that the 
proposed fees for the NYSE American market data products are equitably 
allocated.
The Proposed Fees Are Not Unfairly Discriminatory
    The Exchange believes the proposed fees are not unfairly 
discriminatory because any differences in the application of the fees 
are based on meaningful distinctions between customers, and those 
meaningful distinctions are not unfairly discriminatory between 
customers.
    Overall. As noted above, this proposed fee change is a result of 
the competitive environment for market data products that provide 
indicative pricing information across a family of exchanges. To respond 
to this competitive environment, the Exchange seeks to amend its fees 
to provide a financial incentive for Redistributors that do not 
currently subscribe to any NYSE American market data products that 
decide to subscribe to NYSE BQT, which the Exchange hopes will attract 
more subscribers for the NYSE BQT market data product. The Exchange is 
proposing the fee reductions to make the Exchange's fees more 
competitive for a specific segment of market participants, thereby 
increasing the availability of the Exchange's data products, expanding 
the options available to firms making data purchasing decisions based 
on their business needs, and generally increasing competition.
    Access Fee. The Exchange believes that making the Per User Access 
Fee available to Redistributors that would be subscribing only to the 
NYSE American BBO and NYSE American Trades data feeds and would use 
these market data products for external distribution only is not 
unfairly discriminatory as it would apply equally to all Redistributors 
that choose to subscribe to NYSE American BBO or NYSE American Trades 
for external distribution only and who do not subscribe to any other 
products listed on the Fee Schedule. Because NYSE American BBO and NYSE 
American

[[Page 73566]]

Trades are optional products, any data recipient could choose to 
subscribe only to NYSE American BBO or NYSE American Trades to 
distribute externally and be eligible for the proposed reduced fee. The 
Exchange does not believe that it is unfairly discriminatory that this 
proposed fee reduction would be available only to data recipients that 
subscribe only to NYSE American BBO or NYSE American Trades and only 
for external distribution. Internal use of data represents a different 
set of use cases than a Redistributor that is engaged only in external 
distribution of data. For example, non-display data can be used by data 
recipients for a wide variety of profit-generating purposes, including 
proprietary and agency trading and smart order routing, as well as by 
data recipients that operate order matching and execution platforms 
that compete directly with the Exchange for order flow. The data also 
can be used for a variety of non-trading purposes that indirectly 
support trading, such as risk management and compliance. While some of 
these non-trading uses do not directly generate revenues, they can 
nonetheless substantially reduce the recipient's costs by automating 
such functions so that they can be carried out in a more efficient and 
accurate manner and reduce errors and labor costs, thereby benefiting 
end users. The Exchange therefore believes that there is a meaningful 
distinction between internal use and redistribution of market data and 
that charging a different access fee to a Redistributor that is engaged 
solely in external distribution of only the NYSE American BBO and NYSE 
American Trades products is not unfairly discriminatory because it 
would make NYSE BQT available to more data recipients that are 
customers of such Redistributors and who would not otherwise be able to 
access NYSE BQT if their Redistributor did not subscribe to and 
redistribute NYSE BQT.
    Moreover, the Exchange does not believe that it is unfairly 
discriminatory to offer the Per User Access Fee only to those 
Redistributors that would subscribe only to the NYSE American BBO and 
NYSE American Trades data feeds and no other products on the Fee 
Schedule, and only for external distribution. The Exchange does not 
currently have any Redistributors that fit this description. This 
proposed rule change is designed to provide an incentive for 
Redistributors that do not currently subscribe to NYSE BQT or any other 
products listed on the Fee Schedule, but have customers that are 
interested in subscribing to NYSE BQT, to subscribe to the NYSE 
American BBO and NYSE American Trades data feeds so that they can make 
NYSE BQT available to their customers. This fee incentive is not 
necessary for Redistributors that currently subscribe to the NYSE 
American BBO and NYSE American Trades data feeds because such 
Redistributors could already subscribe to NYSE BQT, but have chosen not 
to, and a reduction in their existing access fees would likely not 
result in such Redistributors choosing to subscribe to NYSE BQT.
    Redistribution Fees. The Exchange believes the proposed change to 
provide a waiver of the Redistribution Fee to a Redistributor that 
would be eligible for the Per User Access Fee because it only 
externally redistributes NYSE American Trades to at least one data 
recipient is not unfairly discriminatory. The proposed waiver would 
apply equally to all Redistributors that are eligible for the Per User 
Access Fee and choose to externally redistribute the NYSE American 
Trades product, and would serve as an incentive for Redistributors that 
do not currently subscribe to any NYSE American market data products to 
subscribe to NYSE American Trades and then make NYSE BQT available to 
their customers.
    For all of the foregoing reasons, the Exchange believes that the 
proposed fees are not unfairly discriminatory.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act. Indeed, as demonstrated 
above, the Exchange believes the proposed rule changes are pro-
competitive.
    Intramarket Competition. The Exchange believes that the proposed 
fees do not put any market participants at a relative disadvantage 
compared to other market participants. As noted above, the proposed fee 
schedule would apply to all subscribers of NYSE American market data 
products, and customers may not only choose whether to subscribe to the 
products at all, but also may tailor their subscriptions to include 
only the products and uses that they deem suitable for their business 
needs. The Exchange also believes that the proposed fees neither favor 
nor penalize one or more categories of market participants in a manner 
that would impose an undue market on competition. As shown above, to 
the extent that particular proposed fees apply to only a subset of 
subscribers, those distinctions are not unfairly discriminatory and do 
unfairly burden one set of customers over another.
    Intermarket Competition. The Exchange believes that the proposed 
fees do not impose a burden on competition on other exchanges that is 
not necessary or appropriate; indeed, the Exchange believes the 
proposed fee changes would have the effect of increasing competition. 
As demonstrated above and in Professor Rysman's paper, exchanges are 
platforms for market data and trading. In setting the proposed fees, 
the Exchange is constrained by the availability of substitute platforms 
also offering market data products and trading, and low barriers to 
entry mean new exchange platforms are frequently introduced. The fact 
that exchanges are platforms ensures that no exchange can make pricing 
decisions for one side of its platform without considering, and being 
constrained by, the effects that price will have on the other side of 
the platform. In setting fees at issue here, the Exchange is 
constrained by the fact that, if its pricing across the platform is 
unattractive to customers, customers will have its pick of an 
increasing number of alternative platforms to use instead of the 
Exchange. Given this intense competition between platforms, no one 
exchange's market data fees can impose an unnecessary burden on 
competition, and the Exchange's proposed fees do not do so here.
    In addition, the Exchange believes that the proposed fees do not 
impose a burden on competition or on other exchanges that is not 
necessary or appropriate because of the availability of numerous 
substitute market data products. Specifically, as described above, NYSE 
BQT competes head-to-head with the Nasdaq Basic product and the Cboe 
One Feed. These products each serve as reasonable substitutes for one 
another as they are each designed to provide investors with a unified 
view of real-time quotes and last-sale prices in all Tape A, B, and C 
securities. Each product provides subscribers with consolidated top-of-
book quotes and trades from multiple U.S. equities markets. NYSE BQT 
provides top-of-book quotes and trades data from five NYSE-affiliated 
U.S. equities exchanges, while Cboe One Feed similarly provides top-of-
book quotes and trades data from Cboe's four U.S. equities exchanges. 
NYSE BQT, Nasdaq Basic, and Cboe One Feed are all intended to provide 
indicative pricing and therefore, are reasonable substitutes for one 
another. Additionally, market data vendors are also able to offer close 
substitutes to NYSE BQT. Because market data users can find suitable 
substitute feeds, an

[[Page 73567]]

exchange that overprices its market data products stands a high risk 
that users may substitute another source of market data information for 
its own. These competitive pressures ensure that no one exchange's 
market data fees can impose an unnecessary burden on competition, and 
the Exchange's proposed fees do not do so here.

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

    No written comments were solicited or received with respect to the 
proposed rule change.

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

    The foregoing rule change is effective upon filing pursuant to 
Section 19(b)(3)(A) \84\ of the Act and subparagraph (f)(2) of Rule 
19b-4 \85\ thereunder, because it establishes a due, fee, or other 
charge imposed by the Exchange.
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    \84\ 15 U.S.C. 78s(b)(3)(A).
    \85\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such 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 under 
Section 19(b)(2)(B) \86\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \86\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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-NYSEAMER-2020-79 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-NYSEAMER-2020-79. 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-NYSEAMER-2020-79, and should be 
submitted on or before December 9, 2020.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\87\
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    \87\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-25390 Filed 11-17-20; 8:45 am]
BILLING CODE 8011-01-P


