37356 Federal Register / Vol. 86, No. 133 / Thursday, July 15, 2021 / Notices 

41 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 Nos. 91598 

(April 16, 2021), 86 FR 21373 (April 22, 2021) (SR– 

NYSE–2021–25); 91599 (April 16, 2021), 86 FR 

21365 (April 22, 2021) (SR–NYSEAMER–2021–21); 

91600 (April 16, 2021), 86 FR 21384 (April 22, 

2021) (SR–NYSEArca–2021–24); 91601 (April 16, 

2021), 86 FR 21410 (April 22, 2021) (SR– 

NYSECHX–2021–07); and 91602 (April 16, 2021), 

86 FR 21393 (April 22, 2021) (SR–NYSENAT–2021– 

09) (collectively, the ‘‘Notices’’). For ease of 

reference, citations to the Notice(s) are to the Notice 

for SR–NYSE–2021–25. 

4 15 U.S.C. 78s(b)(2). 

5See Securities Exchange Act Release No. 92089 

(June 2, 2021), 86 FR 30510 (June 8, 2021). The 

Commission designated July 21, 2021, as the date 

by which it should approve, disapprove, or institute 

proceedings to determine whether to disapprove the 

proposed rule changes. 

6 15 U.S.C. 78s(b)(2)(B). 

7See Notice, supra note 3, at 21373. 

8See id. The Exchanges themselves are indirect 

subsidiaries of ICE. See id. at 21373 n.6. 

9See id. at 21373. 

10See id. The Exchanges recently filed proposed 

rule changes regarding the IDS circuits and certain 

other services offered to NCL Customers. See, e.g., 

Securities Exchange Act Release No. 91217 

(February 26, 2021), 86 FR 12715 (March 4, 2021) 

(SR–NYSE–2021–14). 

11See Notice, supra note 3, at 21373. 

12See id. 

13See id. Mahwah Customers may also use a third 

party wireless connection, including a proprietary 

wireless connection, to the Mahwah Data Center, in 

which case the portion of the connection closest to 

the Mahwah Data Center is wired. See id. at 21373 

n.8. Regarding services offered by Telecoms, the 

Exchanges state that Telecoms are licensed by the 

Federal Communications Commission and are not 

required to be, or be affiliated with, a member of 

the Exchanges. See id. at 21373 n.9. 

14See id. at 21373–74. The Exchanges state that 

a Telecom elects which MMR it will use, or if it 

will use both, and that neither IDS nor the 

Exchange knows the termination point of a 

Telecom’s circuit or the content of any data sent on 

a circuit. See id. at 21374 n.10. 

15See id. at 21374. 

16 In addition, the Exchanges state that a Telecom 

may sell access to its circuits to a second Telecom, 

which allows the second Telecom to use the first 

Telecom’s circuit to access the Mahwah Data 

Center. The second Telecom thereby gains access to 

the Mahwah Data Center, where it installs its 

equipment in an MMR, without incurring the cost 

of installing its own proprietary circuits to the 

Mahwah Data Center. According to the Exchanges, 

IDS does not consent to, and need not be informed 

of, a Telecom’s sale of a circuit to another Telecom. 

See id. at 21374. 

Reference Room, 100 F Street NE, 

Washington, DC 20549, on official 

business days between the hours of 

10:00 a.m. and 3:00 p.m. Copies of the 

filing also will be available for 

inspection and copying at the principal 

office of the Exchange. All comments 

received will be posted without change. 

Persons submitting comments are 

cautioned that we do not redact or edit 

personal identifying information from 

comment submissions. You should 

submit only information that you wish 

to make available publicly. All 

submissions should refer to File 

Number SR–PEARL–2021–33 and 

should be submitted on or before 

August 5, 2021. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.41

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2021–15035 Filed 7–14–21; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–92368; File Nos. SR–NYSE– 

2021–25, SR–NYSEAMER–2021–21, SR– 

NYSEArca–2021–24, SR–NYSECHX–2021– 

07, SR–NYSENAT–2021–09] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC, NYSE 

American LLC, NYSE Arca, Inc., NYSE 

Chicago, Inc., and NYSE National, Inc.; 

Order Instituting Proceedings To 

Determine Whether To Approve or 

Disapprove Proposed Rule Changes 

To Amend the Fee Schedule To Add 

Meet-Me-Room Connectivity Services 

Available at the Mahwah Data Center 

July 9, 2021. 

I. Introduction 

On April 9, 2021, New York Stock 

Exchange LLC (‘‘NYSE’’), NYSE 

American LLC (‘‘NYSE American’’), 

NYSE Arca, Inc. (‘‘NYSE Arca’’), NYSE 

Chicago, Inc. (‘‘NYSE Chicago’’), and 

NYSE National, Inc. (‘‘NYSE National’’) 

(collectively, the ‘‘Exchanges’’) each 

filed with the Securities and Exchange 

Commission (‘‘Commission’’), pursuant 

to Section 19(b)(1) of the Securities 

Exchange Act of 1934 (‘‘Exchange Act’’ 

or ‘‘Act’’) 1 and Rule 19b–4 thereunder,2

a proposed rule change to amend the 

schedule (‘‘Fee Schedule’’) to set forth 

several ‘‘Meet-Me-Room’’ connectivity 

services available at the data center in 

Mahwah, New Jersey (‘‘Mahwah Data 

Center’’) for associated fees, and 

establish procedures for the allocation 

of cabinets and power to such customers 

should availability become limited. The 

proposed rule changes were published 

for comment in the Federal Register on 

April 22, 2021.3 On June 2, 2021, 

pursuant to Section 19(b)(2) of the Act,4

the Commission designated a longer 

period within which to either approve 

the proposed rule changes, disapprove 

the proposed rule changes, or institute 

proceedings to determine whether to 

disapprove the proposed rule changes.5

The Commission has received no 

comment letters on the proposed rule 

changes. This order institutes 

proceedings under Section 19(b)(2)(B) of 

the Exchange Act 6 to determine 

whether to approve or disapprove the 

proposed rule changes. 

II. Description of the Proposed Rule 

Changes 

The Exchanges propose to amend the 

Fee Schedule to set forth several ‘‘MeetMe-Room’’ (or ‘‘MMR’’) connectivity 

services available at the data center in 

Mahwah, New Jersey (‘‘Mahwah Data 

Center’’), and associated fees, and 

establish procedures for the allocation 

of cabinets and power to MMR 

customers should availability become 

limited.7

The Exchanges state that 

Intercontinental Exchange, Inc. (‘‘ICE’’), 

through its ICE Data Services (‘‘IDS’’) 

business, operates the Mahwah Data 

Center.8 From the Mahwah Data Center, 

the Exchanges provide co-location 

services to any market participant that 

requests to receive co-location services 

directly from the Exchange (‘‘Users’’).9

Services are also available to customers 

that are not co-location Users (‘‘NCL 

Customers’’) 10 (Users and NCL 

Customers, together the ‘‘Mahwah 

Customers’’).11

The Exchanges state that Mahwah 

Customers require circuits connecting 

into and out of the Mahwah Data Center 

in order to connect their equipment 

outside of the Mahwah Data Center to 

their equipment or port within the 

Mahwah Data Center.12 They state that 

IDS and numerous third-party 

telecommunications service providers 

(‘‘Telecoms’’) provide these connections 

to Mahwah Customers in the form of 

wired circuits into and out of the 

Mahwah Data Center.13 The Exchanges 

explain that a Telecom completes a 

wired circuit by placing equipment in 

an MMR and installing carrier circuits 

between the Telecom’s MMR equipment 

and one or more points outside the 

Mahwah Data Center.14 Mahwah 

Customers that contract with a Telecom 

to use its circuit connection connect to 

the Telecom’s MMR equipment using a 

cross connect.15 Once connected to the 

Telecom’s equipment, the Mahwah 

Customers can then use the Telecom’s 

circuit to transport data into and out of 

the Mahwah Data Center.16

The Exchanges state that they make 

the current proposals solely as a result 

of their determination that the 

Commission’s interpretations of the 

Act’s definitions of the terms 


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Federal Register / Vol. 86, No. 133 / Thursday, July 15, 2021 / Notices 37357 

17See 15 U.S.C. 78c(a)(1) (‘‘The term ‘exchange’ 

means any organization, association, or group of 

persons, whether incorporated or unincorporated, 

which constitutes, maintains, or provides a market 

place or facilities for bringing together purchasers 

and sellers of securities or for otherwise performing 

with respect to securities the functions commonly 

performed by a stock exchange as that term is 

generally understood, and includes the market 

place and the market facilities maintained by such 

exchange.’’). 

18See 15 U.S.C. 78c(a)(2) (‘‘The term ‘facility’ 

when used with respect to an exchange includes its 

premises, tangible or intangible property whether 

on the premises or not, any right to the use of such 

premises or property or any service thereof for the 

purpose of effecting or reporting a transaction on an 

exchange (including, among other things, any 

system of communication to or from the exchange, 

by ticker or otherwise, maintained by or with the 

consent of the exchange), and any right of the 

exchange to the use of any property or service.’’). 

19See Notice, supra note 3, at 21373; see also 

Securities Exchange Act Release No. 90209 (October 

15, 2020), 85 FR 67044 (October 21, 2020) (SR– 

NYSE–2020–05, SR–NYSEAMER–2020–05, SR– 

NYSEArca–2020–08, SR–NYSECHX–2020–02, SR– 

NYSENAT–2020–03, SR–NYSE–2020–11, SR– 

NYSEAMER–2020–10, SR–NYSEArca–2020–15, 

SR–NYSECHX–2020–05, SR–NYSENAT–2020–08) 

(‘‘Wireless Approval Order’’). 

20See Notice, supra note 3, at 21373; see also 

Intercontinental Exchange, Inc. v. SEC, No. 20–1470 

(D.C. Cir. 2020). 

21See Notice, supra note 3, at 21374. The 

Exchanges state that they recently filed proposed 

rule changes regarding the IDS circuits and services 

offered to NCL Customers, and that if such 

proposals are approved by the Commission, then 

the Exchanges expect to file amendments to the 

present proposals to conform to the relevant 

changes. See id. at 21374 n.11 (citing Securities 

Exchange Act Release No. 91217 (February 26, 

2021), 86 FR 12715 (March 4, 2021) (SR–NYSE– 

2021–14)). 

22The Exchanges state that the Cabinet-Related 

Services are substantially similar to co-location 

services and related fees that the Exchanges offer to 

Users, as set forth in their price lists and fee 

schedules. See id. at 21374. 

23See id. 

24See id. 

25The Exchanges also propose to add a note to 

the Fee Schedule stating that the monthly fee is 

based on total kWs allocated to all of a Telecom’s 

cabinets. See id. 

26The Exchanges state that most of the Access 

and Service Fees are substantially similar to 

services and related fees that the Exchanges offer to 

Users, as set forth in their price lists and fee 

schedules. See id. 

27See id. 

28See id. The Exchanges state that a cross connect 

to MMR cabinets may be purchased by the Telecom 

or the Telecom’s customer. The same fee applies 

irrespective of which entity purchases the cross 

connect. See id. at 21374 n.15. 

29See id. at 21374. 

30See id. at 21375. 

31The Exchanges state that there are currently 

three IDS conduit paths leading into the Mahwah 

Data Center, and a Telecom determines which 

conduit or conduits it will use to carry its circuits, 

which are carried in individual conduit sleeves. See 

id. at 21374. According to the Exchanges, the 

number of conduit sleeves a Telecom uses is 

dependent on the equipment and technology it uses 

and the size of the circuits it sells to Mahwah 

Customers, and that most Telecoms that use them 

have one conduit sleeve. See id. at 21374 n.16. 

32See id. at 21374. 

33See id. at 21375. 

34See supra notes 12–13 and accompanying text. 

35See Notice, supra note 3, at 21374. 

36See id. 

37See id. at 21375. 

38See id. at 21374. 

39See id. 

‘‘exchange’’ 17 and ‘‘facility’’ 18 apply to 

connectivity services described herein 

that are offered by entities other than 

the Exchanges.19 The Exchanges state 

that they disagree with the 

Commission’s interpretations, deny the 

services covered herein are offerings of 

an ‘‘exchange’’ or a ‘‘facility’’ thereof, 

and have sought review of the 

Commission’s interpretations as 

expressed in the Wireless Approval 

Order in the Court of Appeals for the 

District of Columbia Circuit.20

A. Meet-Me-Room (MMR) Services 

The Exchanges propose to change the 

title of the Fee Schedule to ‘‘Wireless 

and Meet-Me-Room Connectivity Fees 

and Charges,’’ and add under the 

heading ‘‘C. Meet-Me-Room (‘MMR’) 

Services’’ the following services 

available to customers in the two MMRs 

on the north and south sides of the 

Mahwah Data Center.21

1. Cabinet-Related Services 

The Exchanges propose to add to the 

Fee Schedule services and fees relating 

to the dedicated cabinets in the MMRs 

that IDS provides to Telecoms to house 

their equipment (collectively, ‘‘CabinetRelated Services’’).22 According to the 

Exchanges, these cabinets are available 

in sizes based on the number of 

kilowatts (‘‘kW’’) allocated, subject to a 

maximum of 8 kW per cabinet.23

Telecoms pay an initial fee for each 

cabinet and a monthly fee based on the 

number of kW allocated to all of the 

Telecom’s cabinets.24 The Exchanges 

propose an initial fee of $5,000 per 

dedicated MMR cabinet, and a monthly 

fee for power allocated to all of a 

Telecom’s dedicated cabinets as follows: 

4–8 kWs ($1,200); 9–20 kWs ($1,050); 

21–40 kWs ($950); and 41+ kWs ($900) 

(each fee, per kW).25

2. Access and Service Fees 

The Exchanges propose to add to the 

Fee Schedule the following services and 

fees relating to access and services that 

IDS provides to Telecoms (collectively, 

‘‘Access and Service Fees’’).26

a. Data Center Fiber Cross Connect 

According to the Exchanges, IDS 

offers fiber cross connects for an initial 

and monthly charge.27 Cross connects 

may run between a Telecom’s cabinets, 

between its cabinet and the cabinet of 

another Telecom, or between its cabinet 

and its customer’s cabinet or port.28

Cross connects may be bundled (i.e., 

multiple cross connects within a single 

sheath) such that a single sheath can 

hold either one cross connect or six 

cross connects.29 The Exchanges 

propose to amend the Fee Schedule to 

describe these services and set forth 

corresponding fees as follows: Furnish 

and install 1 cross connect ($500 initial 

charge plus $600 monthly charge); and 

furnish and install bundle of 6 cross 

connects ($500 initial charge plus 

$1,800 monthly charge).30

b. Conduit Sleeve Fee 

According to the Exchanges, a 

Telecom’s circuits into and out of the 

Mahwah Data Center run through IDS 

conduits.31 Telecoms are assessed an 

initial charge for the installation of 

circuits in the IDS conduit, which 

covers up to five hours of work, and a 

monthly fee per conduit sleeve for using 

the IDS conduit.32 The Exchanges 

propose to amend the Fee Schedule to 

describe these services and set forth 

corresponding fees as follows: Install (5 

hrs) and maintain conduit sleeve 

supporting Telecom circuit into data 

center ($1,000 initial charge plus $2,000 

monthly charge per conduit sleeve).33

c. Carrier Connection Fee 

As noted above,34 Telecoms contract 

with their customers for circuits into 

and out of the Mahwah Data Center.35

According to the Exchanges, Telecoms 

are charged a monthly fee for providing 

such circuits to Mahwah Customers, on 

a per connection basis.36 The Exchanges 

propose to amend the Fee Schedule to 

describe this service and set forth the 

corresponding fee as follows: Maintain 

Telecom’s connections to its nonTelecom data center customers ($1,150 

monthly charge per connection).37

d. Connection to Time Protocol Feed 

According to the Exchanges, IDS 

offers Telecoms the option to purchase 

connectivity to the Precision Time 

Protocol, with monthly and initial 

charges.38 Telecoms may make use of 

time feeds to receive time and to 

synchronize clocks between computer 

systems or throughout a computer 

network, and time feeds may assist 

Telecoms in other functions, including 

record keeping or measuring response 

times.39 The Exchanges propose to 

amend the Fee Schedule to describe this 

service and set forth corresponding fees 

as follows: Precision Time Protocol 


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40See id. at 21375. 

41See id. at 21374. 

42See id. at 21375. 

43The Exchange state that the Service-Related 

Fees are substantially similar to services and related 

fees that the Exchanges offer to Users, as set forth 

in their price lists and fee schedules. See id. 

44See id. 

45 If a Telecom orders two or more services at one 

time, the Exchanges state that the Telecom is 

charged a one-time Change Fee, which would cover 

the multiple services. See id. 

46See id. 

47See id. 

48See id. 

49See id. 

50See id. 

51See id. 

52See id. 

53See id. 

54See id. 

55See supra note 22 and accompanying text. 

56See Notice, supra note 3, at 21375. 

57See id. 

58See id. 

59See id. 

60See id. 

61See id. Specifically, the Exchanges propose to 

provide under the heading ‘‘Note 1: Cabinet and 

Power Purchasing Limits’’ that if (i) unallocated 

cabinet inventory is at or below 3 cabinets 

(‘‘Cabinet Threshold’’), or (ii) the unallocated power 

capacity in the MMRs is at or below 8 kW (the 

‘‘Power Threshold’’), then the following limits on 

the purchase of new cabinets (‘‘Purchasing Limits’’) 

will apply: If only the Cabinet Threshold is reached, 

then under the following measures (the ‘‘Cabinet 

Limits’’), the Exchanges will limit each Telecom’s 

purchase of new cabinets to a maximum of one 

dedicated cabinet. A Telecom will have to wait 30 

days from the date of its signed order form before 

purchasing a new cabinet again. If only the Power 

Threshold is reached or both the Cabinet Threshold 

and the Power Threshold are reached, then under 

the following measures (the ‘‘Combined Limits’’), a 

Telecom may purchase either or both of a one new 

cabinet, subject to a maximum standard power 

allocation of 4 kW (‘‘Standard Cabinets’’), or 

additional power for new or existing cabinet, so 

long as the combined power usage of such 

purchases is no more than a maximum of 4 kW. A 

Telecom will have to wait 30 days from the date 

of its signed order form before purchasing a new 

Standard Cabinet or additional power again. If the 

Cabinet Threshold is reached before the Power 

Threshold, the Cabinet Limits will be in effect until 

the Power Threshold is reached, after which the 

Combined Limits will apply. See id. at 21376. 

62See id. at 21375. Specifically, the Exchanges 

propose to provide that if a Telecom requests, in 

writing, a number of cabinets that, if provided, 

would cause the available cabinet inventory to be 

below 3 cabinets, the Cabinet Limits will only apply 

to the portion of the Telecom’s order below the 

Cabinet Threshold. When unallocated cabinet 

inventory for the MMRs is more than 3 cabinets, the 

Exchanges will discontinue the Cabinet Limits. If a 

Telecom requests, in writing, a number of Standard 

Cabinets and/or an amount of additional power 

that, if provided, would cause the unallocated 

power capacity to be below the Power Threshold or 

Cabinet Threshold, the Combined Limits would 

apply only to the portion of the Telecom’s order 

below the relevant threshold. When unallocated 

power capacity is above the Power Threshold, the 

Exchanges will discontinue the Combined Limits. If 

at that time the unallocated cabinet inventory is 3 

or fewer cabinets, the Cabinet Limits would enter 

into effect. See id. at 21376. 

63Specifically, the Exchanges propose to provide 

under the heading ‘‘Note 2: Cabinet and Combined 

Waitlists’’ that the Exchanges will create a cabinet 

($1,000 initial charge plus $250 monthly 

charge).40

e. Expedite Fee 

According to the Exchanges, IDS 

offers Telecoms the option to expedite 

the completion of MMR services 

purchased or ordered by the 

Telecoms.41 The Exchanges propose to 

amend the Fee Schedule to describe this 

service and set forth the corresponding 

fee as follows: Expedited installation/ 

completion of MMR service ($4,000 per 

request).42

3. Service-Related Fees 

The Exchanges propose to add to the 

Fee Schedule the following services and 

fees relating to services IDS provides to 

Telecoms (collectively, ‘‘Service-Related 

Fees’’).43

a. Change Fee 

According to the Exchanges, IDS 

charges a Telecom a ‘‘Change Fee’’ if the 

Telecom requests a change to one or 

more existing MMR services that IDS 

has already established or completed for 

the Telecom.44 The Change Fee is 

charged per order.45 The Exchanges 

propose to amend the Fee Schedule to 

describe this service and set forth the 

corresponding fee as follows: Change to 

a service that has already been installed/ 

completed for a Telecom ($950 per 

request).46

b. Hot Hands Service 

According to the Exchanges, IDS 

offers Telecoms a ‘‘Hot Hands Service,’’ 

which allows Telecoms to use on-site 

data center personnel to maintain 

Telecom equipment, support network 

troubleshooting, rack and stack a server 

in a Telecom’s cabinet, power recycling, 

and install and document the fitting of 

cable in a Telecom’s cabinet(s).47 A Hot 

Hands Service fee is charged per half 

hour.48 The Exchanges propose to 

amend the Fee Schedule to describe this 

service and set forth the corresponding 

fee as follows: Allows Telecom to use 

on-site data center personnel to 

maintain Telecom equipment, support 

network troubleshooting, rack and stack, 

power recycling, and install and 

document cable ($100 per half hour).49

c. Shipping and Receiving 

According to the Exchanges, IDS 

offers shipping and receiving services to 

Telecoms, with a per shipment fee for 

the receipt of one shipment of goods at 

the Mahwah Data Center from the 

Telecom or supplier.50 The Exchanges 

propose to amend the Fee Schedule to 

describe this service and set forth the 

corresponding fee as follows: Receipt of 

one shipment of goods at data center on 

behalf of Telecom (includes 

coordination of shipping and receiving) 

($100 per shipment).51

d. Visitor Security Escort 

According to the Exchanges, Telecom 

representatives are required to be 

accompanied by a visitor security escort 

during visits to the Mahwah Data 

Center, for which a fee per visit is 

charged.52 The Exchanges propose to 

amend the Fee Schedule to describe this 

service and set forth the corresponding 

fee as follows: All Telecom 

representatives are required to be 

accompanied by a visitor security escort 

during visits to the data center ($75 per 

visit).53

B. Allocation of Cabinets and Power 

The Exchanges propose to establish 

procedures for the allocation of cabinets 

and power to Telecoms (‘‘Proposed 

Allocation Procedures’’).54 As noted 

above,55 IDS offers dedicated cabinets in 

the MMRs to Telecoms to house their 

equipment.56 According to the 

Exchanges, the Exchanges allocate 

cabinets on a first-come/first-serve 

basis.57 When a cabinet is first set up or 

later, a Telecom may request power 

upgrades (‘‘Additional Power’’) to a 

dedicated cabinet in addition to the 

power allocated to such cabinet (the 

‘‘Standard Cabinet Power’’), subject to a 

maximum of 8 kW per cabinet.58 The 

Exchanges maintain that it would be 

prudent to have procedures in place for 

the allocation of cabinets and power to 

Telecoms should such allocation be 

necessary.59

The Exchanges propose to add the 

Proposed Allocation Procedures to the 

Fee Schedule under the heading ‘‘MMR 

Notes,’’ setting forth the procedures 

under proposed Notes 1 and 2.60

Proposed Note 1 would provide that, if 

the amount of power or cabinets 

available fell below specified 

thresholds, Telecoms would be subject 

to purchasing limits.61 Note 1 would 

also specify when the purchasing limits 

would cease to apply and would 

provide that if a Telecom requests a 

number of cabinets and/or amount of 

Additional Power that would cause the 

unallocated capacity to be below the 

specified power and cabinet thresholds, 

the purchasing limits would apply only 

to the portion of the Telecom’s order 

below the relevant threshold.62

Note 2 would provide that, if the 

amount of power or cabinets available 

fell to zero, Telecoms seeking to 

purchase power or cabinets would be 

put on a ‘‘Cabinet Waitlist’’ 63 or a 


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waitlist (‘‘Cabinet Waitlist’’) if the available cabinet 

inventory is zero, or a Telecom requests, in writing, 

a number of cabinets that, if provided, would cause 

the available inventory to be zero. The Exchanges 

will place Telecoms seeking cabinets on a Cabinet 

Waitlist as follows: A Telecom will be placed on the 

Cabinet Waitlist based on the date its signed order 

is received. A Telecom may only have one order for 

a new cabinet on the Cabinet Waitlist at a time, and 

the order is subject to the Cabinet Limits. If a 

Telecom changes the size of its order while it is on 

the Cabinet Waitlist, it will maintain its place on 

the Cabinet Waitlist, provided that the Telecom 

may not increase the size of its order such that it 

would exceed the Cabinet Limits. As cabinets 

become available, the Exchanges will offer a cabinet 

to the Telecom at the top of the Cabinet Waitlist. 

If the Telecom’s order is completed, it will be 

removed from the Cabinet Waitlist. A Telecom will 

be removed from the Cabinet Waitlist (a) at the 

Telecom’s request or (b) if the Telecom turns down 

an offer of a cabinet of the same size it requested 

in its order. If the Exchange offer the Telecom a 

cabinet of a different size than the Telecom 

requested in its order, the Telecom may turn down 

the offer and remain at the top of the Cabinet 

Waitlist until its order is completed. A Telecom that 

is removed from the Cabinet Waitlist but 

subsequently submits a new written order for a 

cabinet will be added back to the bottom of the 

Cabinet Waitlist. When unallocated cabinet 

inventory is more than 3 cabinets, the Exchange 

will cease use of the Cabinet Waitlist. See id. 64See id. at 21375. Specifically, the Exchanges 

propose to create a power and cabinet waitlist 

(‘‘Combined Waitlist’’) if the unallocated power 

capacity is zero, or if a Telecom requests, in writing, 

an amount of power (whether power allocated to a 

Standard Cabinet or additional power) that, if 

provided, would cause the unallocated power 

capacity to be below zero. The Exchanges will place 

Telecoms seeking cabinets or power on the 

Combined Waitlist, as follows: If a Cabinet Waitlist 

exists when the requirements to create a Combined 

Waitlist are met, the Cabinet Waitlist will 

automatically convert to the Combined Waitlist. If 

a Combined Waitlist exists when the requirements 

to create a Cabinet Waitlist are met, no new waitlist 

will be created, and the Combined Waitlist will 

continue in effect. A Telecom will be placed on the 

Combined Waitlist based on the date its signed 

order for a cabinet and/or additional power is 

received. A Telecom may only have one order for 

a new cabinet and/or additional power on the 

Combined Waitlist at a time, and the order would 

be subject to the Combined Limits. If a Telecom 

changes the size of its order while it is on the 

Combined Waitlist, it will maintain its place on the 

Combined Waitlist, provided that the Telecom may 

not increase the size of its order such that it would 

exceed the Combined Limits. As additional power 

and/or cabinets become available, the Exchanges 

will offer them to the Telecom at the top of the 

Combined Waitlist. If the Telecom’s order is 

completed, the order will be removed from the 

Combined Waitlist. If the Telecom’s order is not 

completed, it will remain at the top of the 

Combined Waitlist. A Telecom will be removed 

from the Combined Waitlist (a) at the Telecom’s 

request; or (b) if the Telecom turns down an offer 

that is the same as its order (e.g., the offer includes 

a cabinet of the same size and/or the amount of 

additional power that the Telecom requested in its 

order). If the Exchanges offer the Telecom an offer 

that is different than its order, the Telecom may 

turn down the offer and remain at the top of the 

Combined Waitlist until its order is completed. A 

Telecom that is removed from the Combined 

Waitlist but subsequently submits a new written 

order for a cabinet and/or additional power will be 

added back to the bottom of the waitlist. If the 

Combined Waitlist is in effect, when unallocated 

power capacity in co-location is at 8 kW or more, 

the Exchanges will cease use of the Combined 

Waitlist. If at that time the unallocated cabinet 

inventory is 3 or fewer cabinets, the Cabinet 

Waitlist would enter into effect. See id. at 21376– 

77. 

65See id. at 21375–36. 

66See id. at 21377–79. 

67 ‘‘Hosting’’ is a service offered by a User to 

another entity in the User’s space within the 

Mahwah Data Center. The Exchanges allow Users 

to act as Hosting Users for a monthly fee. See id. 

at 21377 n.21 (citing Securities Exchange Act 

Release No. 76008 (September 29, 2015), 80 FR 

60190 (October 5, 2015) (SR–NYSE–2015–40)). 

68 In this regard, the Exchanges maintain that 

most of the Telecoms that provide circuits do so at 

fees lower than those of IDS, and that most Mahwah 

Customers use Telecom circuits into and out of the 

Mahwah Data Center. See id. at 21377. 

69See id. 

70See id. 

71The Exchanges further state that they do not 

expect that IDS would attract any new customers 

as a result of the proposals. See id. 

72See id. 

73See id. 

74See id. 

75See id. 

76See id. at 21378–79. 

77See id. at 21379. 

‘‘Combined Waitlist.’’ 64 In both proposed Notes 1 and 2, the Proposed 

Allocation Procedures would state how 

the procedures regarding cabinets and 

the procedures regarding power would 

relate to each other, and in each case 

would state what the threshold amount 

of power and cabinets would be to 

discontinue the limits.65

III. Exchanges’ Justification 

With respect to the MMR services and 

fees, the Exchanges generally argue that 

the proposals are reasonable, equitable, 

not unfairly discriminatory, and would 

not impose a burden on competition 

that it not necessary or appropriate, as 

required by Sections 6(b)(4), (5) and (8) 

of the Exchange Act, because use of the 

proposed services is completely 

voluntary and their use enables 

Telecoms to compete with IDS in 

providing connectivity services to 

Mahwah Customers.66 According to the 

Exchanges, IDS operates in a highly 

competitive market in which exchanges, 

third party telecommunications 

providers, Hosting Users,67 and other 

third-party vendors offer connectivity 

services as a means to facilitate the 

trading and other market activities of 

market participants.68 By making it 

possible for Telecoms to offer their 

customers circuits into and out of the 

Mahwah Data Center, the Exchanges 

state that the proposed MMR services 

allow Telecoms to compete with IDS, 

and that the continued availability of 

choices for Mahwah Customers is 

beneficial to both the Telecoms and the 

Mahwah Customers.69 The Exchanges 

state that if these MMR services were 

not available, all Mahwah Customers 

and third-party telecommunications 

service providers would be required to 

use IDS circuits to access the Mahwah 

Data Center, thereby reducing 

competition.70 The Exchanges also state 

that the described services and fees are 

offered to and subscribed to by existing 

Telecoms, and thus expect that the 

impact of the proposals would be 

minimal.71

In addition, the Exchanges argue that 

the proposals are reasonable because 

use of any MMR service is completely 

voluntary and available to purchasers 

on an equal basis, with each Telecom 

able to determine whether to use MMR 

services based on the requirements of its 

business operations, and each Telecom 

being charged only for the services that 

it selects and for the same amount as all 

other Telecoms purchasing such 

services.72 The Exchanges also argue 

that the fees proposed for the MMR fees 

are reasonable because, to the extent the 

services IDS offers to Telecoms are 

substantially the same as the services 

offered by the Exchange to Users, the 

fees are the same.73 With respect to the 

two services not offered to Users (the 

Conduit Sleeve Fee and Carrier 

Connection Fee), the Exchanges state 

that the fees IDS charges Telecoms are 

reasonable because the services 

correspond to the Telecoms’ usage of 

the IDS conduits and the Telecoms’ 

ability to offer their circuits to their 

customers.74 In addition, the Exchanges 

provide some cost-based justifications 

for why the proposals are reasonable, 

claiming that IDS must provide, 

maintain, and operate the Mahwah Data 

Center technology infrastructure, 

expand the network infrastructure to 

keep pace with the services available to 

Telecoms, and handle the installation, 

administration, monitoring, support, 

and maintenance of the MMR services.75

The Exchanges contend that the 

proposals provide for an equitable 

allocation of fees and are not unfairly 

discriminatory, again arguing generally 

that the proposed services would allow 

Telecoms to continue to compete with 

IDS, in addition to being voluntary and 

available to all market participants on 

an equal basis.76 The Exchanges claim 

that the proposed rule changes would 

apply to all market participants and 

would not apply differently to distinct 

types or sizes of licensed 

telecommunications service providers, 

but rather would apply to all equally.77

The Exchanges argue that the 

proposed rule changes do not impose an 

unnecessary or inappropriate burden on 

competition because the proposals 

would preserve the ability of IDS to 

offer the services described herein, 


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78See id. 

79See id. at 21379–80. 

80See id. at 21378, 21378 n.26. 

81 15 U.S.C. 78s(b)(2)(B). 

82 Id. Section 19(b)(2)(B) of the Act also provides 

that proceedings to determine whether to 

disapprove a proposed rule change must be 

concluded within 180 days of the date of 

publication of notice of the filing of the proposed 

rule change. See id. The time for conclusion of the 

proceedings may be extended for up to 60 days if 

the Commission finds good cause for such 

extension and publishes its reasons for so finding, 

or if the exchange consents to the longer period. See 

id. 

83 15 U.S.C. 78f(b)(4). 

84 15 U.S.C. 78f(b)(5). 

85 15 U.S.C. 78f(b)(8). 

86 17 CFR 201.700(b)(3). 

87See id. 

88See id. 

89See 15 U.S.C. 78f(b)(4), (5), and (8). 

90 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act 

grants the Commission flexibility to determine what 

type of proceeding—either oral or notice and 

opportunity for written comments—is appropriate 

for consideration of a particular proposal by an 

SRO. See Securities Acts Amendments of 1975, 

Report of the Senate Committee on Banking, 

Housing and Urban Affairs to Accompany S. 249, 

S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975). 

allowing the Telecoms to compete with 

IDS in providing connectivity services 

into and out of the Mahwah Data 

Center.78 According to the Exchanges, 

the proposals do not affect competition 

among national securities exchanges or 

among members of the Exchanges, but 

rather the Exchanges’ filing of the 

proposals puts IDS at a competitive 

disadvantage relative to its commercial 

competitors that are not subject to filing 

requirements of Section 19(b) of the 

Act.79

Regarding the Proposed Allocation 

Procedures, the Exchanges argue 

principally that it would be reasonable 

to put in place procedures to establish 

the allocation of power and cabinets to 

Telecoms on an equitable basis should 

the need arise, and that the Proposed 

Allocation Procedures are consistent 

with those of another exchange and 

those recently approved for allocating 

cabinets and power in the context of the 

Exchanges’ co-location service 

offerings.80

IV. Proceedings To Determine Whether 

To Approve or Disapprove the 

Proposed Rule Changes 

The Commission is instituting 

proceedings pursuant to Section 

19(b)(2)(B) of the Act to determine 

whether the Exchanges’ proposed rule 

changes should be approved or 

disapproved.81 Institution of 

proceedings does not indicate that the 

Commission has reached any 

conclusions with respect to any of the 

issues involved. Rather, the Commission 

seeks and encourages interested persons 

to provide additional comment on the 

proposed rule changes to inform the 

Commission’s analysis of whether to 

approve or disapprove the proposed 

rule changes. 

Pursuant to Section 19(b)(2)(B) of the 

Act,82 the Commission is providing 

notice of the grounds for possible 

disapproval under consideration: 

• Whether the Exchanges have 

demonstrated how the proposals are 

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

Act, 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 persons 

using its facilities;’’ 83

• Whether the Exchanges have 

demonstrated how the proposals are 

consistent with Section 6(b)(5) of the 

Act, which requires, among other 

things, that the rules of a national 

securities exchange be ‘‘designed to 

perfect the operation of a free and open 

market and a national market system’’ 

and ‘‘protect investors and the public 

interest,’’ and not be ‘‘designed to 

permit unfair discrimination between 

customers, issuers, brokers, or 

dealers;’’ 84 and 

• Whether the Exchanges have 

demonstrated how the proposals are 

consistent with Section 6(b)(8) 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].’’ 85

As discussed in Section III above, the 

Exchanges make various arguments in 

support of the proposals. The 

Commission believes that there are 

questions as to whether the Exchanges 

have provided sufficient information to 

demonstrate that the proposals, 

including the proposed fees for MMR 

services, are consistent with the Act. 

Under the Commission’s Rules of 

Practice, the ‘‘burden to demonstrate 

that a proposed rule change is 

consistent with the Exchange Act and 

the rules and regulations issued 

thereunder . . . is on the self-regulatory 

organization [‘SRO’] that proposed the 

rule change.’’ 86 The description of a 

proposed rule change, its purpose and 

operation, its effect, and a legal analysis 

of its consistency with applicable 

requirements must all be sufficiently 

detailed and specific to support an 

affirmative Commission finding.87 Any 

failure of an SRO to provide this 

information may result in the 

Commission not having a sufficient 

basis to make an affirmative finding that 

a proposed rule change is consistent 

with the Act and the applicable rules 

and regulations.88

The Commission is instituting 

proceedings to allow for additional 

consideration and comment on the 

issues raised herein, including as to 

whether the proposals are consistent 

with the Act, specifically, with its 

requirements that the rules of a national 

securities exchange provide for the 

equitable allocation of reasonable dues, 

fees, and other charges among its 

members, issuers, and other persons 

using its facilities; are designed to 

perfect the operation of a free and open 

market and a national market system, 

and to protect investors and the public 

interest; are not designed to permit 

unfair discrimination between 

customers, issuers, brokers, or dealers; 

and do not impose any burden on 

competition that is not necessary or 

appropriate in furtherance of the 

purposes of the Act; 89 as well as any 

other provision of the Act, or the rules 

and regulations thereunder. 

V. Commission’s Solicitation of 

Comments 

The Commission requests written 

views, data, and arguments with respect 

to the concerns identified above as well 

as any other relevant concerns. Such 

comments should be submitted by 

August 5, 2021. Rebuttal comments 

should be submitted by August 19, 

2021. Although there do not appear to 

be any issues relevant to approval or 

disapproval that would be facilitated by 

an oral presentation of views, data, and 

arguments, the Commission will 

consider, pursuant to Rule 19b–4, any 

request for an opportunity to make an 

oral presentation.90

The Commission asks that 

commenters address the sufficiency and 

merit of the Exchanges’ statements in 

support of the proposals, in addition to 

any other comments they may wish to 

submit about the proposed rule changes. 

Interested persons are invited to 

submit written data, views, and 

arguments concerning the proposed rule 

changes, including whether the 

proposals are 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 Nos. SR– 

NYSE–2021–25, SR–NYSEAMER–2021– 

21, SR–NYSEArca–2021–24, SR– 

NYSECHX–2021–07, SR–NYSENAT– 

2021–09 on the subject line. 


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Federal Register / Vol. 86, No. 133 / Thursday, July 15, 2021 / Notices 37361 

91 17 CFR 200.30–3(a)(57). 

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

2 17 CFR 240.19b–4. 

3 See Exchange Rule 518(a)(5) for the definition 

of Complex Orders. 

4 The term ‘‘System’’ means the automated 

trading system used by the Exchange for the trading 

of securities. See Exchange Rule 100. 

5 See Securities Exchange Act Release Nos. 84891 

(December 20, 2018), 83 FR 67421 (December 28, 

2018) (In the Matter of the Application of MIAX 

EMERALD, LLC for Registration as a National 

Securities Exchange; Findings, Opinion, and Order 

of the Commission); and 85345 (March 18, 2019), 

84 FR 10848 (March 22, 2019) (SR–EMERALD– 

2019–13) (Notice of Filing and Immediate 

Effectiveness of a Proposed Rule Change To Amend 

Exchange Rule 518, Complex Orders). 

6 See Securities Exchange Act Release No. 85207 

(February 27, 2019), 84 FR 7963 (March 5, 2019) 

(SR–EMERALD–2019–09) (providing a complete 

description of the cToM data feed). 

7 The ‘‘Strategy Book’’ is the Exchange’s 

electronic book of complex orders and complex 

quotes. See Exchange Rule 518(a)(17). 

8 See supra note 6. 

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 

Nos. SR–NYSE–2021–25, SR– 

NYSEAMER–2021–21, SR–NYSEArca– 

2021–24, SR–NYSECHX–2021–07, and 

SR–NYSENAT–2021–09. The file 

numbers 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 such 

filing also will be available for 

inspection and copying at the principal 

office of the Exchanges. 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 publicly available. All 

submissions should refer to File Nos. 

SR–NYSE–2021–25, SR–NYSEAMER– 

2021–21, SR–NYSEArca–2021–24, SR– 

NYSECHX–2021–07, and SR– 

NYSENAT–2021–09 and should be 

submitted on or before August 5, 2021. 

Rebuttal comments should be submitted 

by August 19, 2021. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.91

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2021–15038 Filed 7–14–21; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–92358; File No. SR– 

EMERALD–2021–21] 

Self-Regulatory Organizations; MIAX 

Emerald, LLC; Notice of Filing and 

Immediate Effectiveness of a Proposed 

Rule Change to Establish Fees for the 

cToM Market Data Product 

July 9, 2021. 

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 June 30, 

2021, MIAX Emerald, LLC (‘‘MIAX 

Emerald’’ or ‘‘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 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 is filing a proposal to 

amend the Exchange’s Fee Schedule 

(‘‘Fee Schedule’’) to establish fees for 

the market data product known as 

MIAX Emerald Complex Top of Market 

(‘‘cToM’’). 

The text of the proposed rule change 

is available on the Exchange’s website at 

http://www.miaxoptions.com/rulefilings/emerald, at MIAX’s principal 

office, and at the Commission’s Public 

Reference Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

Exchange included statements 

concerning the purpose of and basis for 

the proposed rule change and discussed 

any comments it received on the 

proposed rule change. The text of these 

statements may be examined at the 

places specified in Item IV below. The 

Exchange has prepared summaries, set 

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

the most significant aspects of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange proposes to amend 

Section 6(a) of the Fee Schedule to 

establish fees for the cToM market data 

product. 

The Exchange previously adopted 

rules governing the trading of Complex 

Orders 3 on the Emerald System 4 in 

2018.5 Shortly thereafter, the Exchange 

also adopted the market data product 

cToM and expressly waived fees for 

cToM to provide an incentive to 

prospective market participants to 

subscribe to that market data feed.6 The 

Exchange has not charged fees to cToM 

subscribers in the over two years since 

it was first available for subscription. 

In summary, cToM provides 

subscribers with the same information 

as the MIAX Emerald Top of Market 

(‘‘ToM’’) data product as it relates to the 

Strategy Book 7, i.e., the Exchange’s best 

bid and offer for a complex strategy, 

with aggregate size, based on 

displayable order and quoting interest 

in the complex strategy on the 

Exchange. However, cToM provides 

subscribers with the following 

additional information that is not 

included in ToM: (i) The identification 

of the complex strategies currently 

trading on the Exchange; (ii) complex 

strategy last sale information; and (iii) 

the status of securities underlying the 

complex strategy (e.g., halted, open, or 

resumed). cToM is a distinct market 

data product from ToM. ToM 

subscribers are not required to subscribe 

to cToM, and cToM subscribers are not 

required to subscribe to ToM.8

The Exchange now proposes to amend 

Section 6(a) of the Fee Schedule to 


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