Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Notices 11159 

8 15 U.S.C. 78f(b). 

9 15 U.S.C. 78f(b)(4). 

10 15 U.S.C. 78s(b)(3)(A)(ii). 

11 17 CFR 240.19b–4(f)(2). 12 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 59202 

(January 6, 2009), 74 FR 1744. 

to properly reflect the amount 

previously filed with the Commission. 

2. Statutory Basis 

The Exchange believes that its 

proposal to amend its schedule of fees 

is consistent with Section 6(b) of the 

Act 8 in general, and furthers the 

objectives of Section 6(b)(4) of the Act 9

in particular, in that it is an equitable 

allocation of reasonable fees and other 

charges among Exchange members. The 

Exchange believes that the amendment 

to the Monthly Firm Cap is equitable in 

that it proposes to eliminate all section 

index options. Additionally, the 

proposed amendments to the formatting 

of the fee schedule will create a more 

user friendly fee schedule. The proposal 

to correct the typographical error in the 

Examination Fee should eliminate 

confusion among members as to the 

amount of the 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. 

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 10 and 

paragraph (f)(2) of Rule 19b–4 11

thereunder. At any time within 60 days 

of the filing of the proposed rule change, 

the Commission may summarily 

abrogate 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. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views and 

arguments concerning the foregoing, 

including whether the proposal 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 

No. SR–Phlx–2009–20 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 No. 

SR–Phlx–2009–20. 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 changes 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 inspection and copying 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 Phlx. 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 No. 

SR–Phlx–2009–20 and should be 

submitted on or before April 6, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.12

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–5571 Filed 3–13–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59543; File No. SR–NYSE– 

2008–132] 

Self-Regulatory Organizations; New 

York Stock Exchange, LLC; Order 

Approving Proposed Rule Change To 

Introduce a NYSE Order Imbalance 

Information Fee 

March 9, 2009. 

I. Introduction 

On December 19, 2008, the New York 

Stock Exchange, LLC (‘‘NYSE’’ or the 

‘‘Exchange’’) filed with the Securities 

and Exchange Commission 

(‘‘Commission’’), pursuant to Section 

19(b)(1) of the Securities Exchange Act 

of 1934 (‘‘Act’’) 1 and Rule 19b–4 

thereunder,2 a proposed rule change to 

introduce a fee for access to its NYSE 

Order Imbalance Information datafeed. 

The proposed rule change was 

published for comment in the Federal 

Register on January 13, 2009.3 The 

Commission received no comment 

letters on the proposal. This order 

approves the proposed rule change. 

II. Description of the Proposal 

The Exchange proposes to make the 

NYSE Order Imbalance Information 

datafeed available as a stand-alone 

market data product, separate and apart 

from NYSE OpenBook, and proposes to 

charge recipients of the NYSE Order 

Imbalance Information datafeed $500 

per month. 

Currently, NYSE makes available to 

recipients of NYSE OpenBook an 

additional datafeed containing Order 

Imbalance Information. NYSE Order 

Imbalance Information is a datafeed of 

real-time order imbalances that 

accumulate prior to the opening of 

trading on the Exchange and prior to the 

close of trading on the Exchange. These 

orders are subject to execution at the 

market’s opening or closing price, as the 

case may be, and represent issues that 

are likely to be of particular trading 

interest at the opening or closing. The 

Exchange distributes information about 

these imbalances in real-time at 

specified intervals prior to the opening 

and closing auctions. NYSE Order 

Imbalance Information also includes the 

imbalance information that the 

Exchange is required to disseminate 

under NYSE Rule 123C(5), as well as 

automated real-time streaming order 

imbalance information at specified 

intervals. 

11160 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Notices 

4The Participants in the CTA and CQ Plans first 

submitted the Consolidated Vendor Form to the 

Commission for immediate effectiveness in 1990. 

See Release No. 34–28407 (September 6, 1990); 55 

FR 37276 (September 10, 1990) (File No. 4–281). 

The Commission approved a revised version of it 

in 1996 in conjunction with the participants’ 

restatement of the CTA and CQ Plans. See Release 

No. 34–37191 (May 9, 1996); 61 FR 24842 (May 16, 

1996) (File No. SR–CTA/CQ–96–1). 

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

6 15 U.S.C. 78f(b)(5). 

7 15 U.S.C. 78f(b)(8). 

8 17 CFR 242.603(a). 

9NYSE is an exclusive processor of NYSE data 

under Section 3(a)(22)(B) of the Act, 15 U.S.C. 

78c(a)(22)(B), which defines an exclusive processor 

as, among other things, an exchange that distributes 

information with respect to quotations or 

transactions on an exclusive basis on its own 

behalf. 

10Securities Exchange Act Release No. 59039 

(December 2, 2008), 73 FR 74770 (December 9, 

2008) (SR–NYSEArca–2006–21) (‘‘NYSE Arca 

Order’’). In the NYSE Arca Order, the Commission 

describes a variety of competitive factors that apply 

to exchanges when distributing non-core market 

data products. The Commission hereby incorporates 

The Exchange believes that by making 

NYSE Order Imbalance Information 

datafeed available as a stand-alone 

market data product it would enable all 

investors to gain access to information 

regarding opening and closing 

imbalances on the Exchange, especially 

because the Exchange is not imposing 

end-user fees, is not requiring end-users 

to sign contracts and is making vendor 

receipt and use of the information 

inexpensive and very few 

administrative burdens (e.g., no 

reporting requirements and no end-user 

contracts). Currently, many investors 

have not been able to access this data 

because they do not subscribe to the 

NYSE OpenBook services. The 

Exchange anticipates that this will 

provide important information to 

millions of investors. 

Initially, the Exchange proposes to 

make order imbalance information 

available at the following intervals. 

For Opening Order Imbalances 

• Every five minutes between 8:30 

a.m. EST and 9 a.m. EST. 

• Every one minute between 9 a.m. 

EST and 9:20 a.m. EST. 

• Every 15 seconds between 9:20 a.m. 

EST and the opening (or 9:35 a.m. EST 

if the opening is delayed). 

For Closing Order Imbalances 

• Every fifteen seconds between 3:40 

p.m. EST and 3:50 p.m. EST. 

• Every five seconds between 3:50 

p.m. EST and 4 p.m. EST. 

If the Exchange were to change these 

intervals, it would notify NYSE Order 

Imbalance Information recipients in 

advance and/or post the changes on the 

Exchange’s Web.site. 

The Fee 

The proposed fee of $500 per month 

for recipients of the NYSE Order 

Imbalance Information datafeed applies 

whether the recipient receives the 

datafeed directly from the Exchange or 

indirectly from an intermediary. The fee 

entitles the datafeed recipient to make 

displays of that information available to 

an unlimited number of subscribers for 

no extra charge. The Exchange is not 

proposing to impose an end-user or 

display device fee on those subscribers. 

The fee would allow vendors to 

redistribute NYSE Order Imbalance 

Information: (i) Without having to 

differentiate between professional 

subscribers and nonprofessional 

subscribers; (ii) without having to 

account for the extent of access to the 

data; (iii) without having to procure 

contracts with its subscribers for the 

benefit of the Exchange; and (iv) 

without having to report the number of 

its subscribers. 

By establishing the access fee at what 

it terms as an inexpensive rate and 

declining to impose an end-user fee on 

the consumption of NYSE Order 

Imbalance Information, the Exchange 

states that it seeks to enable all investors 

to gain access to information regarding 

opening and closing imbalances on the 

Exchange. The Exchange believes that 

the fee enables the investment 

community that has an interest in the 

receipt of order imbalance information 

to contribute to the Exchange’s 

operating costs in a manner that is 

appropriate for this market data 

product. 

Continued Distribution Through NYSE 

OpenBook 

The Exchange would continue to 

permit NYSE OpenBook datafeed 

recipients to receive the NYSE Order 

Imbalance Information datafeed as part 

of the NYSE OpenBook package without 

having to pay the $500 fee or any other 

additional charge. Those NYSE 

OpenBook datafeed recipients may then 

redistribute the NYSE Order Imbalance 

Information to any of their subscribers, 

whether or not the subscriber also 

receives NYSE OpenBook information. 

The Exchange imposes no end-user 

charge on those subscribers. 

Contracts 

The Exchange proposes to provide the 

NYSE Order Imbalance Information 

datafeed available under the same 

contracting arrangement that the 

Commission has approved for the 

receipt and use of market datafeeds 

under the CTA and CQ Plans. That 

arrangement contemplates that each 

datafeed recipient enter into the 

Commission-approved standard form of 

‘‘Agreement for Receipt and Use of 

Market Data’’ that Network A uses for 

data redistributors and other parties that 

use the data for purposes other than 

interrogation.4 Exhibit A to each of 

those agreements would need to be 

updated to reflect the receipt and use of 

NYSE Order Imbalance Information. 

The Exchange states that this 

arrangement would not require an enduser of the information (other than a 

data feed recipient) to enter into any 

agreement. 

III. Discussion 

The Commission has reviewed 

carefully the proposed rule change and 

finds that the proposed rule change is 

consistent with the requirements of the 

Act and the rules and regulations 

thereunder applicable to a national 

securities exchange. In particular, it is 

consistent with Section 6(b)(4) of the 

Act,5 which requires that the rules of a 

national securities exchange provide for 

the equitable allocation of reasonable 

dues, fees, and other charges among its 

members and issuers and other parties 

using its facilities, and Section 6(b)(5) of 

the Act,6 which requires, among other 

things, that the rules of a national 

securities exchange be designed to 

promote just and equitable principles of 

trade, to remove impediments to and 

perfect the mechanism of a free and 

open market and a national market 

system and, in general, to protect 

investors and the public interest, and 

not be designed to permit unfair 

discrimination between customers, 

issuers, brokers, or dealers. 

The Commission also finds that the 

proposed rule change is consistent with 

the provisions of Section 6(b)(8) of the 

Act,7 which requires that the rules of an 

exchange not impose any burden on 

competition not necessary or 

appropriate in furtherance of the 

purposes of the Act. Finally, the 

Commission finds that the proposed 

rule change is consistent with Rule 

603(a) of Regulation NMS,8 adopted 

under Section 11A(c)(1) of the Act, 

which requires an exclusive processor 

that distributes information with respect 

to quotations for or transactions in an 

NMS stock to do so on terms that are 

fair and reasonable and that are not 

unreasonably discriminatory.9

The Commission has reviewed the 

proposal using the approach set forth in 

the NYSE Arca Order for non-core 

market data fees.10 In the NYSE Arca 

Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Notices 11161 

by reference the data and analysis from the NYSE 

Arca Order into this order. 11 Id. at 74771. 12 Id. at 74782. 13 Id. at 74781. 14 Id. at 74779. 15 Id. See 17 CFR 242.603(b). (‘‘Every national 

securities exchange on which an NMS stock is 

traded and national securities association shall act 

jointly pursuant to one or more effective national 

market system plans to disseminate consolidated 

information, including a national best bid and 

national best offer, on quotations for and 

transactions in NMS stocks. Such plan or plans 

shall provide for the dissemination of all 

consolidated information for an individual NMS 

stock through a single plan processor.’’). 

16NYSE Arca Order, supra note 10, at 74779. 

17 Id. 

18 Id. 

19 Id. at 74782. (‘‘Attracting order flow is the core 

competitive concern of any equity exchange—it is 

the ‘‘without which, not’’ of an exchange’s 

competitive success. If an exchange cannot attract 

orders, it will not be able to execute transactions. 

If it cannot execute transactions, it will not generate 

transaction revenue. If an exchange cannot attract 

orders or execute transactions, it will not have 

market data to distribute, for a fee or otherwise, and 

will not earn market data revenue.’’). 

20Source: ArcaVision (available at http:// 

www.arcavision.com). 

Order, the Commission stated that 

‘‘when possible, reliance on competitive 

forces is the most appropriate and 

effective means to assess whether the 

terms for the distribution of non-core 

data are equitable, fair and reasonable, 

and not unreasonably 

discriminatory.’’ 11 It noted that the 

‘‘existence of significant competition 

provides a substantial basis for finding 

that the terms of an exchange’s fee 

proposal are equitable, fair, reasonable, 

and not unreasonably or unfairly 

discriminatory.’’ 12 If an exchange ‘‘was 

subject to significant competitive forces 

in setting the terms of a proposal,’’ the 

Commission will approve a proposal 

unless it determines that ‘‘there is a 

substantial countervailing basis to find 

that the terms nevertheless fail to meet 

an applicable requirement of the 

Exchange Act or the rules 

thereunder.’’ 13

As noted in the NYSE Arca Order, the 

standards in Section 6 of the Act and 

Rule 603 of Regulation NMS do not 

differentiate between types of data and 

therefore apply to exchange proposals to 

distribute both core data and non-core 

data.14 Core data is the best-priced 

quotations and comprehensive last-sale 

reports of all markets that the 

Commission, pursuant to Rule 603(b), 

requires a central processor to 

consolidate and distribute to the public 

pursuant to joint-SRO plans.15 In 

contrast, individual exchanges and 

other market participants distribute 

non-core data voluntarily.16 The 

mandatory nature of the core data 

disclosure regime leaves little room for 

competitive forces to determine 

products and fees.17 Non-core data 

products and their fees are, by contrast, 

much more sensitive to competitive 

forces.18 The Commission therefore is 

able to use competitive forces in its 

determination of whether an exchange’s 

proposal to distribute non-core data 

meets the standards of Section 6 and 

Rule 603. Because NYSE’s instant 

proposal relates to the distribution of 

non-core data, the Commission will 

apply the market-based approach set 

forth in the NYSE Arca Order. 

The proposed rule change should 

benefit investors by facilitating wider 

availability of NYSE Order Imbalance 

Information. The proposal would allow 

market participants that are currently 

not subscribers to the NYSE OpenBook 

market data product to receive NYSE 

Order Imbalance Information as a standalone product. Vendors would be 

allowed to redistribute the Order 

Imbalance Information to an unlimited 

number of subscribers for no extra 

charge. The Commission notes that 

under the proposal even though NYSE 

Order Imbalance Information would be 

sold as a stand-alone product, that 

NYSE OpenBook datafeed recipients 

would continue to receive the Order 

Imbalance datafeed without having to 

pay any additional charge. In addition, 

the Commission notes that those NYSE 

OpenBook datafeed recipients would 

then be able to redistribute without 

charge the NYSE Order Imbalance 

Information to any of their subscribers, 

whether or not the subscriber also 

receives NYSE OpenBook information. 

The NYSE Open Imbalance 

Information product that is before the 

Commission is a non-core data product 

and, as in the Commission’s NYSE Arca 

Order analysis, at least two broad types 

of significant competitive forces applied 

to NYSE in setting the terms of this 

proposal: (i) NYSE’s compelling need to 

attract order flow from market 

participants; 19 and (ii) the availability 

to market participants of alternatives to 

purchasing NYSE’s data. 

Attracting order flow is the core 

competitive concern of any equity 

exchange, including NYSE. Attracting 

order flow is an essential part of an 

NYSE’s competitive success. If NYSE 

cannot attract order flow to its market, 

it will not be able to execute 

transactions. If NYSE cannot execute 

transactions on its market, it will not 

generate transaction revenue. If NYSE 

cannot attract orders or execute 

transactions on its market, it will not 

have market data to distribute, for a fee 

or otherwise, and will not earn market 

data revenue and thus not be 

competitive with other exchanges that 

have this ability. 

Table 1 below provides a useful 

recent snapshot of the state of 

competition in the U.S. equity markets 

in the month of January 2009: 20

TABLE 1—REPORTED SHARE VOLUME IN U.S-LISTED EQUITIES DURING JANUARY 2009 (%) 

Trading venue All stocks NYSE-listed NASDAQ-listed 

NASDAQ ........................................................ 27.1 20.5 39.9 

All Non-Exchange .......................................... 26.7 26.2 31.0 

NYSE Arca ..................................................... 17.9 15.7 15.8 

NYSE ............................................................. 14.8 26.2 0.0 

BATS .............................................................. 10.7 9.0 10.8 

International Stock Exchange ........................ 1.3 1.4 1.4 

National Stock Exchange .............................. 0.6 0.7 0.7 

Chicago Stock Exchange .............................. 0.4 0.4 0.3 

CBOE Stock Exchange ................................. 0.2 0.0 0.1 

NYSE Alternext .............................................. 0.1 0.0 0.0 

NASDAQ OMX BX ........................................ 0.0 0.0 0.0 

The market share percentages in Table 

1 strongly indicate that NYSE must 

compete vigorously for order flow to 

maintain its share of trading volume. 

This compelling need to attract order 

flow imposes significant pressure on 

11162 Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Notices 

21See Richard Posner, Economic Analysis of Law 

§ 9.1 (5th ed., 1998) (discussing the theory of 

monopolies and pricing). See also U.S. Dep’t of 

Justice & Fed’l Trade Comm’n, Horizontal Merger 

Guidelines § 1.11 (1992), as revised (1997) 

(explaining the importance of alternatives to the 

presence of competition and the definition of 

markets and market power). Courts frequently refer 

to the Department of Justice and Federal Trade 

Commission merger guidelines to define product 

markets and evaluate market power. See, e.g., FTC 

v. Whole Foods Market, Inc., 502 F. Supp. 2d 1 

(D.D.C. 2007); FTC v. Arch Coal, Inc., 329 F. Supp. 

2d 109 (D.D.C. 2004). In considering antitrust 

issues, courts have recognized the value of 

competition in producing lower prices. See, e.g., 

Leegin Creative Leather Products v. PSKS, Inc., 127 

S. Ct. 2705 (2007); Atlanta Richfield Co. v. United 

States Petroleum Co., 495 U.S. 328 (1990); 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574 (1986); State Oil Co. v. Khan, 522 U.S. 

3 (1997); Northern Pacific Railway Co. v. U.S., 356 

U.S. 1 (1958). 

22 15 U.S.C. 78s(b)(2). 

23 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 59198 

(January 5, 2009), 74 FR 1268. 

4See February 2, 2009 letter from Ira D. 

Hammerman, Senior Managing Director and 

General Counsel, Securities Industry and Financial 

Markets Association (‘‘SIFMA’’), to Elizabeth M. 

Murphy, Secretary, Commission (‘‘SIFMA Letter’’); 

February 2, 2009 letter from Jeffrey T. Brown, 

Senior Vice President, Charles Schwab Corporation 

(‘‘Schwab’’), to Florence Harmon, Deputy Secretary, 

Commission, (‘‘Schwab Letter’’). 

5See February 25, 2009 letter from Janet M. 

Kissane, Senior Vice President—Legal & Corporate 

Secretary, Office of the General Counsel, NYSE, to 

Elizabeth M. Murphy, Secretary, Commission 

(‘‘NYSE Letter’’). 

6NYSE added NYSE BestQuote to the NYSE 

OpenBook Realtime package in October 2006. See 

Securities Exchange Act Release No. 54594 (October 

12, 2006); 71 FR 61819 (October 19, 2006) (SR– 

NYSE–2006–81). 

NYSE to act reasonably in setting its 

fees for NYSE market data, particularly 

given that the market participants that 

must pay such fees often will be the 

same market participants from whom 

NYSE must attract order flow. These 

market participants particularly include 

the large broker-dealer firms that control 

the handling of a large volume of 

customer and proprietary order flow. 

Given the portability of order flow from 

one trading venue to another, any 

exchange that sought to charge 

unreasonably high data fees would risk 

alienating many of the same customers 

on whose orders it depends for 

competitive survival. Specifically with 

respect to trading prior to the open and 

close, for example, the Commission 

notes that exchanges other than the 

NYSE currently offer, or could easily 

offer, trading services that compete with 

the NYSE open and close. 

In addition to the need to attract order 

flow, the availability of alternatives to 

NYSE’s Order Imbalance Information 

significantly affect the terms on which 

NYSE can distribute this market data.21

In setting the fees for its NYSE 

OpenBook data, NYSE must consider 

the extent to which market participants 

would choose one or more alternatives 

instead of purchasing the exchange’s 

data. The various self-regulatory 

organizations, the several Trade 

Reporting Facilities of FINRA, and ECNs 

that produce proprietary data are all 

sources of competition. Accordingly, a 

variety of alternative sources of 

information impose significant 

competitive pressures on the NYSE in 

setting the terms for distributing its 

market data. The Commission believes 

that the availability of those 

alternatives, as well as the NYSE’s 

compelling need to attract order flow, 

imposed significant competitive 

pressure on the NYSE to act equitably, 

fairly, and reasonably in setting the 

terms of its proposal. 

Because the NYSE was subject to 

significant competitive forces in setting 

the terms of the proposal, the 

Commission will approve the proposal 

in the absence of a substantial 

countervailing basis to find that its 

terms nevertheless fail to meet an 

applicable requirement of the Act or the 

rules thereunder. An analysis of the 

proposal does not provide such a basis, 

nor were there any comments on this 

filing, so no one raised any issues under 

this portion of the test. For example, the 

proposal does not unreasonably 

discriminate among types of users. The 

proposed fee entitles the datafeed 

recipient to make displays of the 

information available to an unlimited 

number of subscribers at no extra 

charge. 

V. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,22 that the 

proposed rule change (SR–NYSE–2008– 

132) be, and hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.23

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–5569 Filed 3–13–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59544; File No. SR–NYSE– 

2008–131] 

Self-Regulatory Organizations; New 

York Stock Exchange, LLC; Order 

Approving Proposed Rule Change To 

Introduce a NYSE OpenBook 

Nonprofessional Subscriber Fee and 

To Revise the Unit of Count That 

Determines the Device Fees Payable 

by Data Recipients 

March 9, 2009. 

I. Introduction 

On December 18, 2008, the New York 

Stock Exchange, LLC (‘‘NYSE’’ or the 

‘‘Exchange’’) filed with the Securities 

and Exchange Commission 

(‘‘Commission’’), pursuant to Section 

19(b)(1) of the Securities Exchange Act 

of 1934 (‘‘Act’’) 1 and Rule 19b–4 

thereunder,2 a proposed rule change to 

introduce a nonprofessional subscriber 

fee for its NYSE OpenBook product 

offerings and to revise the unit of count 

that determines the device fees payable 

by data recipients. The proposed rule 

change was published for comment in 

the Federal Register on January 12, 

2009.3 The Commission received two 

comment letters on the proposal.4 NYSE 

responded to the comment letters on 

February 25, 2009.5 This order approves 

the proposed rule change. 

II. Description of the Proposal 

A. Unit of Count 

As part of a one-year pilot and a wider 

initiative to simplify and modernize 

market data administration, the 

Exchange proposes to redefine some of 

the basic ‘‘units of measure’’ that 

Vendors are required to report to the 

Exchange and on which the Exchange 

bases its fees for its NYSE OpenBook 

product packages. NYSE believes the 

proposal is designed to be more closely 

aligned with current data consumption, 

reduce costs for the Exchange’s 

customers, and potentially serve as a 

model for additional pricing 

efficiencies. 

NYSE OpenBook is a packaged suite 

of data feed products. It includes: (i) 

NYSE OpenBook Realtime, by which 

the Exchange makes NYSE OpenBook 

Realtime available on a snapshot basis, 

with updates distributed in real-time at 

intervals of one second; and (ii) NYSE 

OpenBook Ultra, by which the Exchange 

updates NYSE OpenBook information 

upon receipt of each displayed limit 

order, or upon an event that removes 

limit orders from NYSE OpenBook (i.e., 

cancellation or execution). For no 

additional charge, the Exchange makes 

available to recipients of NYSE 

OpenBook additional data feeds 

containing: (i) NYSE BestQuote,6 which 

allows customers to see NYSE’s best bid 

and offer as made available through the 

Consolidated Quotation System, and 

which may contain additional market 

interest that is not displayed in the