[Federal Register Volume 74, Number 65 (Tuesday, April 7, 2009)]
[Notices]
[Pages 15795-15799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7836]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59679; File No. SR-ISE-2007-97]


Self-Regulatory Organizations; International Securities Exchange, 
LLC; Notice of Filing of Proposed Rule Change and Amendment No. 1 
Thereto Relating to Market Data Fees

April 1, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on October 5, 2007, International Securities Exchange, LLC (the 
``Exchange'' or the ``ISE'') filed with the Securities and Exchange 
Commission (``Commission'') the proposed rule change as described in 
Items I, II, and III below, which Items have been prepared by the 
Exchange. On March 9, 2009, the Exchange filed Amendment No. 1 to the 
proposed rule change.\3\ The Commission is publishing this notice to 
solicit comments on the proposed rule change, as modified by Amendment 
No. 1, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 replaced and superseded the original filing 
in its entirety.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange is proposing to amend its Schedule of Fees to 
establish fees for a real-time depth of market data offering. The text 
of the proposed rule change is available on the Exchange's Web site 
(http://www.ise.com), at the principal office of the Exchange, and at 
the Commission's Public Reference Room.

[[Page 15796]]

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 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
    ISE currently creates market data that consists of options quotes 
and orders and all trades that are executed on the Exchange. ISE also 
produces a Best Bid/Offer, or BBO, with the aggregate size from all 
outstanding quotes and orders at the top price level, or the ``top of 
book.'' This ``core'' \4\ data is formatted according to Options Price 
Reporting Authority (``OPRA'') specification and sent to OPRA for 
redistribution to the public.
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    \4\ ``Core'' data refers to the best-priced quotations and 
comprehensive last sale reports of all markets that the Commission 
requires a central processor to consolidate and distribute to the 
public pursuant to joint-SRO plans. ``Non-core'' data refers to 
products other than the consolidated products that markets offer 
collectively under joint industry plans.
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    In addition to the BBO ``core'' data, the Exchange also produces a 
``non-core'' data feed, the ISE Depth of Market Data Feed (``Depth of 
Market''), a service that aggregates all quotes and orders at the top 
five price levels, on both the bid and offer side of the market. The 
Depth of Market offering consists of non-marketable orders and quotes 
that a prospective buyer or seller has chosen to display. The purpose 
of this proposed rule change is to establish fees for the ISE Depth of 
Market offering. Depth of Market, which is distributed in real time, 
provides subscribers with a consolidated view of tradable prices beyond 
the BBO. Further, Depth of Market shows additional liquidity and 
enhances transparency for ISE traded options that is not currently 
available through the OPRA feed. The proposed offering is available to 
members and non-members, and to both professional and non-professional 
subscribers.
    ISE believes that it has consistently supported the broadest, most 
effective dissemination of market information to public investors. Its 
multiple filings regarding ``non-core'' market data have provided 
market participants with tools to enhance their trading 
opportunities.\5\
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    \5\ See Securities Exchange Act Release Nos. 53212 (February 2, 
2006), 71 FR 6803 (February 9, 2006) (Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change Establishing Fees for 
Historical Options Tick Market Data); 53390 (February 28, 2006), 71 
FR 11457 (March 7, 2006) (Order Granting Accelerated Approval of a 
Proposed Rule Change Establishing Fees for Historical Options Tick 
Market Data for Non-Members); 53756 (May 3, 2006), 71 FR 27526 (May 
11, 2006) (Order Granting Approval of a Proposed Rule Change 
Establishing Fees for Enhanced Sentiment Market Data); 56254 (August 
15, 2007), 72 FR 47104 (August 22, 2007) (Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change Relating to ISE 
Open/Close Trade Profile Fees; 56315 (August 24, 2007), 72 FR 50148 
(August 30, 2007) (Order Approving a Proposed Rule Change Relating 
to ISEE Select Market Data Fees).
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    The Exchange proposes to charge distributors \6\ of Depth of Market 
$5,000 per month. In addition, the Exchange proposes to charge the 
distributor a monthly fee per controlled device \7\ of (i) $50 per 
controlled device for Professionals at a distributor where the data is 
for internal use only, (ii) $50 per controlled device for Professionals 
who receive the data from a distributor where the data is further 
redistributed externally, and (iii) $5 per controlled device for Non-
Professionals who receive the data from a distributor. The Exchange 
proposes to limit for any one month the combined maximum amount of fees 
payable by a distributor, as follows: (i) $7,500 for Professionals at a 
distributor where the data is for internal use only, (ii) $12,500 for 
Professionals where the data is further redistributed externally in a 
controlled device, and (iii) $10,000 for Non-Professionals who receive 
the data in a controlled device from a distributor. In an effort to 
accommodate a distributor's development effort to integrate the Depth 
of Market offering, the Exchange proposes to charge distributors a flat 
fee of $1,000 for the first month after connectivity has been 
established between ISE and the distributor. Further, the Exchange 
proposes to waive all user fees during this one month period.
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    \6\ ISE proposes that a ``distributor'' be defined as any firm 
that receives an ISE data feed directly from ISE or indirectly 
through a ``redistributor'' and then distributes it either 
internally or externally. Further, ISE proposes that all 
distributors execute an ISE distributor agreement. 
``Redistributors'' include market data vendors and connectivity 
providers such as extranets and private network providers.
    \7\ ISE proposes that a ``controlled device'' be defined as any 
device that a distributor of the ISE Depth of Market permits to 
access the information in the Depth of Market offering.
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    In differentiating between Professional and Non-Professional 
subscribers, the Exchange proposes to apply the same criteria for 
qualification as a Non-Professional subscriber as the Consolidated Tape 
Association (``CTA'') Plan and Consolidated Quotation System Plan 
Participants use. Accordingly, a ``Non-Professional Subscriber'' is an 
authorized end-user of Depth of Market data who is a natural person and 
who is neither: (a) Registered or qualified with the Securities and 
Exchange Commission (the ``Commission''), the Commodities Futures 
Trading Commission, any state securities agency, any securities 
exchange or association, or any commodities or futures contract market 
or association; (b) engaged as an ``investment advisor'' as that term 
is defined Section 202(a)(11) of the Investment Advisers Act of 1940 
(whether or not registered or qualified under that act); nor (c) 
employed by a bank or other organization exempt from registration under 
Federal and/or state securities laws to perform functions that would 
require him/her to be so registered or qualified if he/she were to 
perform such functions for an organization not so exempt. A 
``Professional Subscriber'' is an authorized end-user of Depth of 
Market that has not qualified as a Non-Professional Subscriber.
    Under the proposal, the Exchange would apply one device fee in 
respect of professional subscribers to Depth of Market and a different, 
lower device fee in respect of non-professional subscribers. The use of 
a lower fee for non-professional subscribers than for professional 
subscribers has a long history. CTA first adopted a non-professional 
subscriber fee 25 years ago.\8\ Since then, individual investors have 
had broadened access to real-time market information. The Exchange 
believes that a non-professional subscriber fee for Depth of Market 
will likely lead to greater access by individual investors to Depth of 
Market information and thereby to further the statutory goals expressed 
in Section 11A(a)(1)(c) of the Securities Exchange Act of 1934 (the 
``Exchange Act'').
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    \8\ See the Sixth Substantive Amendment and Sixth Charges 
Amendment to the CTA Plan, File No. S7-433, Release Nos. 34-20002 
(July 22, 1983), 34-20239 (September 30, 1983) and 34-20386 
(November 17, 1983).
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    Further, Section 603(a)(2) of Regulation NMS requires markets to 
distribute market data ``on terms that are not unreasonably 
discriminatory.'' Given the differences in data usage between 
professional subscribers and non-professional subscribers and the 
industry's long acceptance of different fees for professional 
subscribers and non-professional subscribers, the Exchange believes 
that the proposed

[[Page 15797]]

non-professional subscriber fee does not unreasonably discriminate 
against the professional subscriber fee.
    The Exchange believes the proposed fees for Depth of Market comport 
with the standard that the Commission established for determining 
whether market data fees relating to non-core market data products are 
fair and reasonable. In its recent ``Order Setting Aside Action by 
Delegated Authority and Approving Proposed Rule Change Relating to NYSE 
Arca Data'' (the ``NYSE ArcaBook Approval Order''),\9\ the Commission 
reiterated its position from its release approving Regulation NMS that 
it should ``allow market forces, rather than regulatory requirements, 
to determine what, if any, additional quotations outside the NBBO are 
displayed to investors.''\10\
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    \9\ See Securities Exchange Act Release No. 59039 (December 2, 
2008), 73 FR 74770 (December 9, 2008) (SR-NYSEArca-2006-21).
    \10\ See Regulation NMS Release, 70 FR at 37566-37567 
(addressing differences in distribution standards between core data 
and non-core data).
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    The Commission went on to state that:

    The Exchange Act and its legislative history strongly support 
the Commission's reliance on competition, whenever possible, in 
meeting its regulatory responsibilities for overseeing the SROs and 
the national market system. Indeed, competition among multiple 
markets and market participants trading the same products is the 
hallmark of the national market system.\11\
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    \11\ NYSE ArcaBook Approval Order at pp. 46-47.

    The Commission then articulated the standard that it will apply in 
assessing the fairness and reasonableness of market data fees for non-
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core products, as follows:

    With respect to non-core data, * * * the Commission has 
maintained a market-based approach that leaves a much fuller 
opportunity for competitive forces to work. This market-based 
approach to non-core data has two parts. The first is to ask whether 
the exchange was subject to significant competitive forces in 
setting the terms of its proposal for non-core data, including the 
level of any fees. If an exchange was subject to significant 
competitive forces in setting the terms of a proposal, the 
Commission will approve the 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.\12\
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    \12\ Id. at pp. 48-49.

    The options industry is subject to significant competitive forces 
and the introduction of the Depth of Market offering is just one 
response to that competition. The options Exchanges compete intensely 
for order flow. The primary purpose of any ``non-core'' data offering 
by an Exchange is to attract order flow. Attracting order flow is a 
significant concern of any exchange, be it an equity, options or 
futures exchange. ``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,'' \13\ or to monetize.
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    \13\ Id. at p. 51.
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    ISE currently competes with six other options exchanges for order 
flow and ``the competition is fierce.'' \14\ The number of registered 
options exchanges in the United States has increased 75% since ISE 
itself became an exchange in 2000. Although ISE's total volume 
increased in 2008 over 2007, its market share suffered a decline. The 
table below details market share among the options exchanges in all 
listed products from 2006 through 2008, showing increases and decreases 
in market share quarter-by-quarter.
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    \14\ Id. at p. 52.

                                                  Quarterly Market Share Based on Average Daily Volume
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
               Period                     ISE %
                                          AMEX %
                                          BOX %
                                          CBOE %
                                        NYSEArca %
                                          PHLX %
                                          NSDQ %
--------------------------------------------------------------------------------------------------------------------------------------------------------
Q1 06..............................     30.46            10.05  [dtri      5.04  [dtri     31.79             9.98  [dtri     12.68  [dtri       n/a
                                                                  f]               f]                                f]               f]
Q2 06..............................     29.05  [dtri      9.62  [dtri      4.92  [dtri     35.25             8.46  [dtri     12.70              n/a
                                                 f]               f]               f]                                f]
Q3 06..............................     29.59             9.66             4.64  [dtri     33.81  [dtri      9.29            13.01              n/a
                                                                                   f]               f]
Q4 06..............................     27.86  [dtri      9.56  [dtri      4.07  [dtri     32.24  [dtri     10.96            15.30              n/a
                                                 f]               f]               f]               f]
Q1 07..............................     27.76  [dtri      9.60             4.08            33.73            11.40            13.42  [dtri       n/a
                                                 f]                                                                                   f]
Q2 07..............................     28.20             8.88  [dtri      4.32            33.92            10.81  [dtri     13.88              n/a
                                                                  f]                                                 f]
Q3 07..............................     28.11  [dtri      8.02  [dtri      4.88            34.05            10.60  [dtri     14.34              n/a
                                                 f]               f]                                                 f]
Q4 07..............................     28.25             7.49  [dtri      4.71  [dtri     30.77  [dtri     13.71            15.06              n/a
                                                                  f]               f]               f]
Q1 08..............................     29.40             6.02  [dtri      4.66  [dtri     31.97            13.44  [dtri     14.50  [dtri       n/a
                                                                  f]               f]                                f]               f]
Q2 08..............................     28.79  [dtri      6.16             5.16            32.28            11.37  [dtri     15.61             0.63
                                                 f]                                                                  f]
Q3 08..............................     27.55  [dtri      5.54  [dtri      4.87  [dtri     34.04            11.27  [dtri     15.50  [dtri      1.23
                                                 f]               f]               f]                                f]               f]
Q4 08..............................     26.81  [dtri      5.46  [dtri      5.29            34.88            10.45  [dtri     15.51             1.60
                                                 f]               f]                                                 f]
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    Despite the frequent variations in market share, no single exchange 
has more than approximately one-third the market share. Given the 
current competitive pressures in the options industry, no exchange can 
take any of its share of trading for granted. ``Even the most dominant 
exchanges are subject to severe pressure in the current market 
environment.'' \15\ In order for ISE to maintain its market share, it 
must compete vigorously for order flow. Given the portability of order 
flow from one exchange to another, a pricing misstep can easily result 
in loss of order flow, customers and ultimately, revenue.
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    \15\ Id. at p. 53.
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    Moreover, absent certain exclusively licensed monopolistic 
products, market participants have the ability to send their order to 
any of the seven options exchanges since nearly all underlying 
securities whose options are available for trading are offered at each 
of the seven exchanges. For example, of the more than 2,000 underlying 
securities whose options are traded on ISE, only 41 products (two 
percent) are singly-listed on ISE, which collectively represents less 
than .02 percent of ISE's total contract volume. Of those 41 products, 
16 are proprietary ISE index options, all of which are available for 
licensing by ISE to any other exchange; four are index products that 
ISE has non-exclusively licensed from index providers and which are 
available to other exchanges to license; 10 are Exchange Traded Funds 
that other exchanges have chosen not to list; and the remaining 11 
products are equities that either the other exchanges have chosen not 
to list or are in the process of being de-listed and thus are available 
for closing only transactions on ISE.
    With regards to the 16 proprietary index options, ISE notes that 
they are traded exclusively on ISE not due to any type of monopoly 
control, but rather due to lack of interest by other exchanges. ISE 
further notes that when

[[Page 15798]]

another exchange has shown interest in trading a proprietary ISE 
product, the Exchange has licensed the trading in that product to other 
exchanges. For example, NYSE Arca recently signed a license agreement 
with ISE to list and trade ISE's foreign currency options and that ISE 
proprietary product is now multiply listed. Although this introduces 
competition for order flow, ISE believes options that are listed on 
multiple exchanges provide investors with better markets for execution 
and lower fees. It also tends to raise overall industry trading volume 
in the product. We are ready, willing, and able to license our 
proprietary index products for trading on other exchanges on 
commercially reasonable terms.
    The Exchange further notes that there are a number of alternative 
``non-core'' products available to investors. The ISE Depth of Market 
does not provide a complete picture of the full market for options on a 
security. Rather, an investor has a number of different information 
sources to choose from in determining which exchange has the best 
market. The other exchanges, all of whom can produce their own depth of 
market products, as well independent distribution of order data by 
securities firms and data vendors, all pose a competitive threat. 
Moreover, the Exchange believes that the great majority of investors do 
not believe that it is necessary to purchase a depth-of-book product.
    Currently, of nearly 200 firms that are members of the Exchange, 
less than 15 percent currently access Depth of Market, which the 
Exchange is offering at no cost, pending approval of this proposed rule 
change. The lack of committed members affirms the Exchange's view that 
Depth of Market, while it may serve a beneficial purpose and would be 
`nice to have', does not contain information that is so critical that 
it would adversely impact trading decisions made by investors. Further, 
while Depth of Market is available to non-professional or ``retail'' 
subscribers, the Exchange, despite the low level of subscription by 
professional subscribers, believes that Depth of Market is primarily a 
product for market professionals, who have access to other sources of 
market data and will purchase Depth of Market only if they determine 
that the perceived benefits outweigh the costs. The Exchange believes 
the Commission concurs with this sentiment, when it said in the NYSE 
ArcaBook Approval Order, ``the fact that 95% of the professional users 
of [Nasdaq] core data choose not to purchase the depth-of-book order 
data of a major exchange strongly suggests that no exchange has 
monopoly pricing power for its depth-of-book order data.'' \16\
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    \16\ Id. at p. 64.
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    In sum, the availability of alternative sources of information 
coupled with the Exchange's critical need to attract order flow impose 
significant competitive pressure on ISE to act equitably, fairly, and 
reasonably in setting fees for Depth of Market. The introduction of 
this new market data offering is, in part, a response to that pressure. 
For the reasons cited above, the Exchange believes that the Depth of 
Market offering, including the proposed fees, is equitable, fair, 
reasonable and not unreasonably discriminatory. In addition, the 
Exchange believes that no substantial countervailing basis exists to 
support a finding that the proposed terms and fees for Depth of Market 
fails to meet the requirement of the Exchange Act.
2. Statutory Basis
    The basis under the Exchange Act for this proposed rule change is 
the requirement under Section 6(b)(4),\17\ that an exchange have an 
equitable allocation of reasonable dues, fees and other charges among 
its members and other persons using its facilities; with Section 
6(b)(5) \18\ of the Act, 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 with 
Section 6(b)(8) \19\ of the Act, which requires that the rules of a 
national securities exchange not impose any burden on competition not 
necessary or appropriate in furtherance of the purposes of the Act. The 
Exchange developed and conducted a comprehensive survey of a cross-
section of participants in the financial services industry regarding 
their level of interest in a number of proprietary ``non-core'' market 
data offerings. Based on the results of that survey, the Exchange 
developed a business plan to create and offer a number of proprietary 
market data products targeted to potential user groups, e.g., 
individual investors, institutional investors, broker-dealers, etc. The 
Exchange also retained a consultant to validate the business plan and 
to provide advice on the structure and amount of fees to charge for 
these products. Based on all of this information, the Exchange 
established a pricing structure for its Depth of Market offering for 
professional and non-professional subscribers. The Exchange believes 
the proposed rule filing provides market participants with added 
transparency to help improve trading efficiency.
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    \17\ 15 U.S.C. 78f(b)(4).
    \18\ 15 U.S.C. 78f(b)(5).
    \19\ 15 U.S.C. 78f(b)(8).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The proposed rule change does not impose any burden on competition 
that is 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

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

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

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) By order approve the proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be 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. In particular, the Commission notes 
that unlike the market data fees approved by the Commission in the NYSE 
ArcaBook Approval Order, ISE's fees would apply to securities that are 
traded only on ISE. Would the inclusion of data for such products in 
the ISE Depth of Market feed undermine a finding, consistent with the 
approach set forth in the NYSE ArcaBook Approval Order, that ISE was 
subject to significant competitive forces in setting the terms of its 
fee proposal for non-core data products? Should the Commission evaluate 
those singly-listed securities for which another exchange would be 
required to obtain a license to

[[Page 15799]]

trade differently than singly-listed securities that do not require a 
license? Does it matter whether any such required license must be 
obtained from ISE or a third party? ISE represents that it would 
license its proprietary index products to any other exchange on 
commercially reasonable terms. How should this representation be 
factored into the Commission's evaluation? What impact, if any, would 
the trading volume represented by such singly-listed securities have on 
the analysis? Are there any factors with respect to singly-listed 
securities that would impact an analysis of whether ISE's proposed fees 
are consistent with the Act?
    Comments may be submitted by any of the following methods:

Electronic Comments

    <bullet> Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an e-mail to <a href="/cdn-cgi/l/email-protection#fc8e899099d19f9391919992888fbc8f999fd29b938a"><span class="__cf_email__" data-cfemail="7705021b125a14181a1a121903043704121459101801">[email protected]</span></a>. Please include 
File Number SR-ISE-2007-97 on the subject line.

Paper Comments

    <bullet> Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549.

All submissions should refer to File Number SR-ISE-2007-97. 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 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 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-ISE-2007-97 and should be 
submitted on or before April 28, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\20\
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    \20\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-7836 Filed 4-6-09; 8:45 am]
BILLING CODE 8010-01-P


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