77028 Federal Register / Vol. 75, No. 237 / Friday, December 10, 2010 / Notices 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3 15 U.S.C. 78f. 

4 15 U.S.C. 78f(b)(5). 

5 15 U.S.C. 78f. 

6 15 U.S.C. 78f(b)(4). 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–63443; File No. SR–Phlx– 

2010–170] 

Self-Regulatory Organizations; 

NASDAQ OMX PHLX LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change Relating to 

Fees for Direct Access to Exchange 

Data 

December 6, 2010. 

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 November 

24, 2010, NASDAQ OMX PHLX LLC 

(‘‘Phlx’’ or the ‘‘Exchange’’) filed with the 

Securities and Exchange Commission 

(‘‘SEC’’ or ‘‘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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes an 

amendment to the fee schedule to assess 

‘‘direct access’’ fees on customers 

receiving Exchange data within the 

Exchange’s co-location facility. The rule 

filing also deletes outdated dated 

verbiage in the fee schedule to eliminate 

confusion regarding application of the 

fees. The Exchange will implement the 

proposed change on December 1, 2010. 

The text of the proposed rule change is 

available on the Exchange’s Web site at 

http:// 

nasdaqomxphlx.cchwallstreet.com/ 

NASDAQOMXPHLX/Filings/, at the 

principal office of the Exchange, and at 

the Commission’s Public Reference 

Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

Exchange included statements 

concerning the purpose of and basis for 

the proposed rule change and discussed 

any comments it received on the 

proposed rule change. The text of these 

statements may be examined at the 

places specified in Item IV below. The 

Exchange has prepared summaries, set 

forth in sections A, B, and C below, of 

the most significant aspects of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

Phlx is amending its fee schedule to 

correct an anomaly that effectively 

exempts certain customers residing 

within the Exchange’s co-location 

facility from paying a monthly fee for 

direct access to Exchange data, while 

customers that receive data from an 

extranet and reside outside the colocation facility are assessed the fee. 

The inequity is a result of the definition 

of ‘‘direct access’’ in the fee schedule, 

which does not by its terms clearly 

apply to data feeds provided to 

customers through distributors located 

within the co-located facility. This rule 

filing will expand the definition of 

‘‘direct access’’ and thereby operate to 

assess the same fee on all firms that 

have access to the Exchange’s raw data 

feeds, whether co-located or not. 

The Exchange, like other data 

providers, assesses fees for its real time 

market data. In general, a customer that 

receives a data feed directly from the 

Exchange is assessed a ‘‘direct access’’ 

fee. If the customer then distributes the 

data, it is a ‘‘distributor’’ as defined 

under the fee schedule and pays an 

‘‘internal’’ or ‘‘external’’ distributor fee, 

depending upon whether it distributes 

the data internally or externally. A 

‘‘distributor’’ is broadly defined to 

include any entity that distributes the 

Exchange’s data, whether it receives the 

data feed directly from the Exchange or 

indirectly through another entity. 

Distributor fees apply to distributors 

located within the Exchange’s colocation facility as well as those outside 

of it. 

The definition of what constitutes 

‘‘direct access,’’ however, is limited to 

several types of communications 

connections, none of which accurately 

describe the systems by which data is 

delivered through distributors located 

within the co-location facility to their 

customers also located within the colocation facility. As a result, the 

distributor’s customers in the colocation facility are not charged a direct 

access fee, even though they receive the 

Exchange’s data in its raw data format 

and have the same low latency data 

access as non-co-located extranet 

customers that pay the Direct Access 

fee. 

To correct this disparity, this rule 

filing will include within the definition 

of ‘‘direct access’’ the receipt of 

Exchange data within the co-location 

facility. It will also delete terms that, 

while describing various means by 

which data is currently accessed, do not 

clearly or adequately describe all viable 

technological means of accessing data. 

More specifically, the terms ‘‘Exchangeoperated Web site, system or 

application’’ are deleted, as they are 

limiting terms that do not clearly 

encompass potential technological 

means of accessing Exchange data. Their 

elimination does not impact the fees of 

any customer currently assessed a Direct 

Access fee, but should preclude the 

need for future rule changes to the 

definition of direct access, as the means 

by which those same customers access 

data evolve over time. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the provisions of Section 6 of the Act,3

in general, and with Sections 6(b)(5) of 

the Act,4 in particular. The proposal is 

designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, to foster cooperation and 

coordination with persons engaged in 

regulating, clearing, settling, processing 

information with respect to, and 

facilitating transactions in securities, to 

remove impediments to and perfect the 

mechanism of a free and open market 

and a national market system, and, in 

general, to protect investors and the 

public interest. The filing permits 

transparent, uniform fees for direct 

access to Exchange data for all 

customers, whether co-located or not. 

In addition, the Exchange believes 

that the proposed rule change is 

consistent with the provisions of 

Section 6 of the Act,5 in general, and 

with Section 6(b)(4) of the Act,6 in 

particular, in that it provides for the 

equitable allocation of reasonable dues, 

fees and other charges among members 

and issuers and other persons using any 

facility or system which The Exchange 

operates or controls. In particular, the 

Exchange notes that the amendment 

corrects an anomaly that effectively 

exempts certain customers receiving the 

data from paying a direct access fee. 

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 not 

necessary or appropriate in furtherance 

of the purposes of the Act, as amended. 

mstockstill on DSKH9S0YB1PROD with NOTICES

Federal Register / Vol. 75, No. 237 / Friday, December 10, 2010 / Notices 77029 

7 15 U.S.C. 78s(b)(3)(A)(ii). 

8 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

No written comments were either 

solicited or received. 

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.7 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. 

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 e-mail to rulecomments@sec.gov. Please include File 

Number SR–Phlx–2010–170 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–Phlx–2010–170. This file 

number should be included on the 

subject line if e-mail is used. To help the 

Commission process and review your 

comments more efficiently, please use 

only one method. The Commission will 

post all comments on the Commission’s 

Internet Web site (http://www.sec.gov/ 

rules/sro.shtml). Copies of the 

submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for Web site viewing and 

printing in the Commission’s Public 

Reference Room, 100 F Street, NE., 

Washington, DC 20549, on official 

business days between the hours of 10 

a.m. and 3 p.m. Copies of such filing 

also will be available for inspection and 

copying at the principal office of the 

Exchange. All comments received will 

be posted without change; the 

Commission does not edit personal 

identifying information from 

submissions. You should submit only 

information that you wish to make 

available publicly. All submissions 

should refer to File Number SR–Phlx– 

2010–170 and should be submitted on 

or before January 3, 2011. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.8

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–31101 Filed 12–9–10; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–63442; File No. SR–BX– 

2010–081] 

Self-Regulatory Organizations; The 

NASDAQ OMX BX Inc.; Notice of Filing 

and Immediate Effectiveness of 

Proposed Rule Change Relating to 

Fees for Direct Access to Exchange 

Data 

December 6, 2010. 

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 November 

24, 2010, The NASDAQ BX OMX, Inc. 

(‘‘BX’’ or ‘‘The Exchange’’) filed with the 

Securities and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

prepared by BX. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of the Substance 

of the Proposed Rule Change 

BX proposes an amendment to the fee 

schedule to assess ‘‘direct access’’ fees 

on customers receiving Exchange data 

within the Exchange co-location facility. 

The rule filing also deletes outdated 

verbiage in the fee schedule to eliminate 

confusion regarding application of the 

fees, and corrects a minor typographical 

error in the rule. BX will implement the 

proposed change on December 1, 2010. 

The text of the proposed rule change is 

available from the principal office of the 

Exchange, at the Commission’s Public 

Reference Room and also on the 

Exchange’s Internet Web site at http:// 

nasdaqomxbx.cchwallstreet.com/ 

NASDAQOMXBX/Filings/. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, BX 

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. BX has prepared 

summaries, set forth in Sections A, B, 

and C below, of the most significant 

aspects of such statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

BX is amending its fee schedule to 

correct an anomaly that effectively 

exempts certain customers residing 

within the Exchange’s co-location 

facility from paying a monthly fee for 

direct access to Exchange data, while 

customers that receive data from an 

extranet and reside outside the colocation facility are assessed the fee. 

The inequity is a result of the definition 

of ‘‘direct access’’ in the fee schedule, 

which does not by its terms clearly 

apply to data feeds provided to 

customers through distributors located 

within the co-located facility. This rule 

filing will expand the definition of 

‘‘direct access’’ and thereby operate to 

assess the same fee on all firms that 

have access to the Exchange’s raw data 

feeds, whether co-located or not. It will 

also delete terms that are obsolete or 

generally limiting, given the evolution 

of technologies and systems through 

which data may be accessed. 

The Exchange, like other data 

providers, assesses fees for its real time 

market data. In general, a customer that 

receives a data feed directly from the 

Exchange is assessed a ‘‘direct access’’ 

fee. If the customer then distributes the 

data, it is a ‘‘distributor’’ as defined 

mstockstill on DSKH9S0YB1PROD with NOTICES