[Federal Register Volume 87, Number 76 (Wednesday, April 20, 2022)]
[Notices]
[Pages 23573-23586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08386]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-94721; File No. SR-PEARL-2022-11]


Self-Regulatory Organizations; MIAX PEARL LLC; Notice of Filing 
of a Proposed Rule Change To Amend the MIAX PEARL Options Fee Schedule 
To Increase Certain Connectivity Fees; Suspension of and Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove 
the Proposed Rule Change

April 14, 2022.
    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 April 1, 2022, MIAX PEARL, LLC (``MIAX Pearl'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``Commission'') a 
proposed rule change as described in Items I and II 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 and is, pursuant to Section 19(b)(3)(C) of the Act, hereby: (i) 
Temporarily suspending the rule change; and (ii) instituting 
proceedings to determine whether to approve or disapprove the proposed 
rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange is filing a proposal to amend the MIAX PEARL Options 
Fee Schedule (the ``Fee Schedule'') to amend certain connectivity fees.
    The text of the proposed rule change is available on the Exchange's 
website at http://www.miaxoptions.com/rule-filings/pearl at MIAX 
PEARL'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 [sic] 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 the Fee Schedule to increase the 
fees for Members \3\ and non-Members to access the Exchange's System 
Networks \4\ via a 10 gigabit (``Gb'') ultra-low latency
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    \3\ The term ``Member'' means an individual or organization that 
is registered with the Exchange pursuant to Chapter II of these 
Rules for purposes of trading on the Exchange as an ``Electronic 
Exchange Member'' or ``Market Maker.'' Members are deemed 
``members'' under the Exchange Act. See Exchange Rule 100.
    \4\ The Exchange's System Networks consist of the Exchange's 
extranet, internal network, and external network.

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[[Page 23574]]

(``ULL'') fiber connection.\5\ Specifically, the Exchange proposes to 
amend Sections 5)a)-b) of the Fee Schedule to increase the 10Gb ULL fee 
for Members and non-Members from $10,000 per month to $12,000 per month 
(``10Gb ULL Fee''). Prior to the proposed fee change, the Exchange 
assessed Members and non-Members a flat monthly fee of $10,000 per 10Gb 
ULL connection for access to the Exchange's primary and secondary 
facilities.
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    \5\ The Exchange initially filed a proposal on July 30, 2021 to 
adopt a tiered-pricing structure for the 10Gb ULL fiber connections. 
The proposal to adopt a tiered pricing structure was withdrawn and 
refiled several times, each time providing more detail and 
additional justification in response to questions raised by the 
Commission in its Suspension Orders and in response to comments 
received. Ultimately, in response to questions raised by the 
Commission in its Suspension Orders and comment letters submitted by 
SIG on the proposed tiered pricing structure, the Exchange 
reluctantly withdrew that proposal on March 30, 2022, despite the 
fact that the proposed a tiered-pricing structure reduced the 
monthly 10Gb ULL connectivity fees for approximately 60% of the 
Exchange's subscribers. See Securities Exchange Act Release Nos. 
92644 (August 11, 2021), 86 FR 46055 (August 17, 2021) (SR-PEARL-
2021-36); 93162 (September 28, 2021), 86 FR 54739 (October 4, 2021) 
(SR-PEARL-2021-45); 93639 (November 22, 2021), 86 FR 67758 (November 
29, 2021); 93774 (December 14, 2021), 86 FR 71952 (December 20, 
2021) (SR-PEARL-2021-57); 94088 (January 27, 2022), 87 FR 5901 
(February 2, 2022) (SR-MIAX-2021-59, SR-PEARL-2021-57); and 94258 
(February 15, 2022), 87 FR 9659 (February 22, 2022) (SR-PEARL-2022-
03). See also letters from Richard J. McDonald, Susquehanna 
International Group, LLC (``SIG''), to Vanessa Countryman, 
Secretary, Commission, dated September 7, 2021, October 1, 2021, 
October 26, 2021, and March 15, 2022. See letters from Richard J. 
McDonald, SIG, to Vanessa Countryman, Secretary, Commission, dated 
October 1, 2021 (``SIG Letter 2'') and October 26, 2021 (``SIG 
Letter 3''). See also letter from Tyler Gellasch, Executive 
Director, Healthy Markets Association (``HMA''), to Hon. Gary 
Gensler, Chair, Commission, dated October 29, 2021 (commenting on 
SR-CboeEDGA-2021-017, SR-CboeBYX-2021-020, SR-Cboe-BZX-2021-047, SR-
CboeEDGX-2021-030, SR-MIAX-2021-41, SR-PEARL-2021-45, and SR-
EMERALD-2021-29 and stating that ``MIAX has repeatedly filed to 
change its connectivity fees in a way that will materially lower 
costs for many users, while increasing the costs for some of its 
heaviest of users. These filings have been withdrawn and repeatedly 
refiled. Each time, however, the filings contain significantly 
greater information about who is impacted and how than other filings 
that have been permitted to take effect without suspension'') 
(emphasis added) (``HMA Letter''); and Ellen Green, Managing 
Director, Equity and Options Market Structure, Securities Industry 
and Financial Markets Association (``SIFMA''), to Vanessa 
Countryman, Secretary, Commission, dated November 26, 2021 (``SIFMA 
Letter'').
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    The Exchange believes that other exchanges' connectivity fees offer 
useful examples of alternative approaches to providing and charging for 
connectivity and includes the below table for comparison purposes only 
to show how its proposed fees compare to fees currently charged by 
other options exchanges for similar connectivity. As shown by the below 
table, the Exchange's proposed fees are less than fees charged for 
similar connectivity provided by other options exchanges with 
comparable market share.

------------------------------------------------------------------------
                                                       Monthly fee  (per
          Exchange               Type of connection       connection)
------------------------------------------------------------------------
MIAX Pearl (as proposed)      10Gb ULL...............         $12,000.00
 (equity options market
 share of 4.32% as of March
 29, 2022 for the month of
 March) \6\.
The NASDAQ Stock Market LLC   10Gb Ultra fiber.......          15,000.00
 (``NASDAQ'') \7\ (equity
 options market share of
 8.62% as of March 29, 2022
 for the month of March) \8\.
Nasdaq ISE LLC (``ISE'') \9\  10Gb Ultra fiber.......          15,000.00
 (equity options market
 share of 5.83% as of March
 29, 2022 for the month of
 March) \10\.
NYSE American LLC (``Amex'')  10Gb LX LCN............          22,000.00
 \11\ (equity options market
 share of 7.15% as of March
 29, 2022 for the month of
 March) \12\.
Nasdaq GEMX, LLC (``GEMX'')   10Gb Ultra.............          15,000.00
 \13\ (equity options market
 share of 2.48% as of March
 29, 2022 for the month of
 March) \14\.
------------------------------------------------------------------------

    The Exchange will continue to assess monthly Member and non-Member 
network connectivity fees for connectivity to the primary and secondary 
facilities in any month the Member or non-Member is credentialed to use 
any of the Exchange APIs or market data feeds in the production 
environment. The Exchange proposes to pro-rate the fees when a Member 
or non-Member makes a change to the connectivity (by adding or deleting 
connections) with such pro-rated fees based on the number of trading 
days that the Member or non-Member has been credentialed to utilize any 
of the Exchange APIs or market data feeds in the production environment 
through such connection, divided by the total number of trading days in 
such month multiplied by the applicable monthly rate. The Exchange will 
continue to assess monthly Member and non-Member network connectivity 
fees for connectivity to the disaster recovery facility in each month 
during which the Member or non-Member has established connectivity with 
the disaster recovery facility.
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    \6\ See ``The market at a glance,'' available at https://www.miaxoptions.com/ (last visited March 29, 2022).
    \7\ See NASDAQ Rules, General 8: Connectivity, Section 1. Co-
Location Services.
    \8\ See supra note 6.
    \9\ See ISE Rules, General 8: Connectivity.
    \10\ See supra note 6.
    \11\ See NYSE American Options Fee Schedule, Section IV.
    \12\ See supra note 6.
    \13\ See GEMX Rules, General 8: Connectivity.
    \14\ See supra note 6.
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    The Exchange's MIAX Express Network Interconnect (``MENI'') can be 
configured to provide Members and non-Members of the Exchange network 
connectivity to the trading platforms, market data systems, test 
systems, and disaster recovery facilities of both the Exchange and its 
affiliate, Miami International Securities Exchange, LLC (``MIAX''), via 
a single, shared connection. Members and non-Members utilizing the MENI 
to connect to the trading platforms, market data systems, test systems, 
and disaster recovery facilities of the Exchange and MIAX via a single, 
shared connection will continue to only be assessed one monthly 
connectivity fee per connection, regardless of the trading platforms, 
market data systems, test systems, and disaster recovery facilities 
accessed via such connection.
2. Statutory Basis
    The Exchange believes that the proposed increase to the 10Gb ULL 
Fee is consistent with Section 6(b) of the Act \15\ in general, and 
furthers the objectives of Section 6(b)(4) of the Act \16\ in 
particular, in that it provides for the equitable allocation of 
reasonable dues, fees and other charges among Members and other persons 
using any facility or system that the Exchange operates or controls. 
The Exchange also believes the proposed increase to the 10Gb ULL Fee

[[Page 23575]]

furthers the objectives of Section 6(b)(5) of the Act \17\ in that it 
is designed to promote just and equitable principles of trade, remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system, and, in general, protect investors and the 
public interest and are not designed to permit unfair discrimination 
between customers, issuers, brokers and dealers.
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    \15\ 15 U.S.C. 78f(b).
    \16\ 15 U.S.C. 78f(b)(4).
    \17\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the information provided to justify the 
proposed increase to the 10Gb ULL Fee meets or exceeds the amount of 
detail required in respect of proposed fee changes as set forth in the 
recent Commission and Commission Staff guidance. On March 29, 2019, the 
Commission issued an Order disapproving a proposed fee change by the 
BOX Market LLC Options Facility to establish connectivity fees for its 
BOX Network (the ``BOX Order'').\18\ On May 21, 2019, the Commission 
Staff issued guidance ``to assist the national securities exchanges and 
FINRA . . . in preparing Fee Filings that meet their burden to 
demonstrate that proposed fees are consistent with the requirements of 
the Securities Exchange Act.'' \19\ Based on both the BOX Order and the 
Guidance, the Exchange believes that the proposed increase to the 10Gb 
ULL Fee is consistent with the Act because it (i) is reasonable, 
equitably allocated, not unfairly discriminatory, and not an undue 
burden on competition; (ii) complies with the BOX Order and the 
Guidance; and (iii) is supported by evidence (including comprehensive 
revenue and cost data and analysis) that the proposed increase to the 
10Gb ULL Fee is fair and reasonable and will not result in excessive 
pricing or supra-competitive profit.
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    \18\ See Securities Exchange Act Release No. 85459 (March 29, 
2019), 84 FR 13363 (April 4, 2019) (SR-BOX-2018-24, SR-BOX-2018-37, 
and SR-BOX-2019-04) (Order Disapproving Proposed Rule Changes to 
Amend the Fee Schedule on the BOX Market LLC Options Facility to 
Establish BOX Connectivity Fees for Participants and Non-
Participants Who Connect to the BOX Network).
    \19\ See Staff Guidance on SRO Rule Filings Relating to Fees 
(May 21, 2019), at https://www.sec.gov/tm/staff-guidance-sro-rule-filings-fees (the ``Guidance'').
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The Proposed Increase to the 10Gb ULL Fee Will Not Result in a Supra-
Competitive Profit
    The Exchange believes that exchanges, in setting fees of all types, 
should meet very high standards of transparency to demonstrate why each 
new fee or fee amendment meets the requirements of the Act that fees be 
reasonable, equitably allocated, not unfairly discriminatory, and not 
create an undue burden on competition among market participants. The 
Exchange believes this high standard is especially important when an 
exchange imposes various fees for market participants to access an 
exchange's marketplace.
    In the Guidance, the Commission Staff states that, ``[a]s an 
initial step in assessing the reasonableness of a fee, staff considers 
whether the fee is constrained by significant competitive forces.'' 
\20\ The Guidance further states that, ``. . . even where an SRO cannot 
demonstrate, or does not assert, that significant competitive forces 
constrain the fee at issue, a cost-based discussion may be an 
alternative basis upon which to show consistency with the Exchange 
Act.'' \21\ In the Guidance, the Commission Staff further states that, 
``[i]f an SRO seeks to support its claims that a proposed fee is fair 
and reasonable because it will permit recovery of the SRO's costs, or 
will not result in excessive pricing or supra-competitive profit, 
specific information, including quantitative information, should be 
provided to support that argument.'' \22\ The Exchange does not assert 
that the 10Gb ULL Fee is constrained by competitive forces. Rather, the 
Exchange asserts that the proposed increase to the 10Gb ULL Fee is 
reasonable because it will permit recovery of the Exchange's costs in 
providing access services to supply 10Gb ULL connectivity and will not 
result in the Exchange generating a supra-competitive profit.
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    \20\ Id.
    \21\ Id.
    \22\ Id.
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    The Guidance defines ``supra-competitive profit'' as ``profits that 
exceed the profits that can be obtained in a competitive market.'' \23\ 
The Commission Staff further states in the Guidance that ``the SRO 
should provide an analysis of the SRO's baseline revenues, costs, and 
profitability (before the proposed fee change) and the SRO's expected 
revenues, costs, and profitability (following the proposed fee change) 
for the product or service in question.'' \24\ The Exchange provides 
this analysis below.
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    \23\ Id.
    \24\ Id.
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    The proposed 10Gb ULL Fee is based on a cost-plus model. A 10Gb ULL 
connection provides access to each of the three Exchange networks, 
extranet, internal network, and external network, all of which are 
necessary for Exchange operations. The Exchange's extranet provides the 
means by which the Exchange communicates with market participants and 
includes access to the Member portal and the ability to send and 
receive daily communications and reports. The internal network connects 
the extranet to the rest of the Exchange's systems and includes trading 
systems, market data systems, and network monitoring. The external 
network includes connectivity between the Exchange and other national 
securities exchanges, market data providers, and between the Exchange's 
locations in Princeton, New Jersey, Secaucus, New Jersey (NY4), Miami, 
Florida, and Chicago, Illinois (CH4). In determining the appropriate 
fees to charge Members and non-Members to access the Exchange's System 
Networks via a 10Gb ULL fiber connection, the Exchange considered its 
costs to provide and maintain its System Networks and connectivity to 
those System Networks, using costs that are related to providing and 
maintaining access to the Exchange's System Networks via a 10Gb ULL 
fiber connection to estimate such costs, and set fees that are designed 
to cover its costs with a limited return in excess of such costs. The 
Exchange believes that it is important to demonstrate that the 10Gb ULL 
Fee is based on its costs and reasonable business needs and believes 
the proposed increase to the 10Gb ULL Fee will allow the Exchange to 
continue to offset expenses. However, as discussed more fully below, 
such fees may also result in the Exchange recouping less than all of 
its costs of providing and maintaining access to the Exchange's System 
Networks via a 10Gb ULL fiber connection because of the uncertainty of 
forecasting subscriber decision making with respect to firms' 
connectivity needs. The Exchange believes that the proposed increase to 
the 10Gb ULL Fee will not result in excessive pricing or supra-
competitive profit based on the total expenses the Exchange estimates 
to incur versus the total revenue the Exchange estimates to collect, 
and therefore meets the standards in the Act as interpreted by the 
Commission and the Commission Staff in the BOX Order and the Guidance.
    The Exchange conducted an extensive cost review in which the 
Exchange analyzed nearly every expense item in the Exchange's general 
expense ledger to determine whether each such expense relates to the 
10Gb ULL Fee, and, if such expense did so relate, what portion (or 
percentage) of such expense actually supports access to the Exchange's 
System Networks via a 10Gb ULL fiber connection associated with the 
10Gb ULL Fee. In determining what

[[Page 23576]]

portion (or percentage) to allocate to access services, each Exchange 
department head, in coordination with other Exchange personnel, 
determined the expenses that support access services and System 
Networks associated with the 10Gb ULL Fee. This included numerous 
meetings between the Exchange's Chief Information Officer, Chief 
Financial Officer, Head of Strategic Planning and Operations, Chief 
Technology Officer, various members of the Legal Department, and other 
group leaders. The analysis also included each department head meeting 
with the divisions of teams within each department to determine the 
amount of time and resources allocated by employees within each 
division towards the access services and System Networks associated 
with the 10Gb ULL Fee. The Exchange reviewed each individual expense to 
determine if such expense was related to the 10Gb ULL Fee. Once the 
expenses were identified, the Exchange department heads, with the 
assistance of our internal finance department, reviewed such expenses 
holistically on an Exchange-wide level to determine what portion of 
that expense supports providing access services and the System 
Networks. The sum of all such portions of expenses represents the total 
cost to the Exchange to provide access services associated with the 
10Gb ULL Fee. For the avoidance of doubt, no expense amount is 
allocated twice.
    The analysis conducted by the Exchange is a proprietary process 
that is designed to make a fair and reasonable assessment of costs and 
resources allocated to support the provision of access services 
associated with the 10Gb ULL Fee. The Exchange acknowledges that this 
assessment can only capture a moment in time and that costs and 
resource allocations may change. That is why the Exchange historically, 
and on an ongoing annual basis, reviews its costs and resource 
allocations to ensure it appropriately allocates resources to properly 
provide services to the Exchange's constituents.
    The Exchange believes exchanges, like all businesses, should be 
provided flexibility when developing and applying a methodology to 
allocate costs and resources they deem necessary to operate their 
business, including providing market data and access services. The 
Exchange notes that costs and resource allocations may vary from 
business to business and, likewise, costs and resource allocations may 
differ from exchange to exchange when it comes to providing market data 
and access services. It is a business decision that must be evaluated 
by each exchange as to how to allocate internal resources and what 
costs to incur internally or via third parties that it may deem 
necessary to support its business and its provision of market data and 
access services to market participants.
    The Exchange notes that there are material costs associated with 
providing the infrastructure and headcount to fully support access to 
the Exchange and its System Networks via a 10Gb ULL fiber connection. 
The Exchange incurs technology expense related to establishing and 
maintaining Information Security services, enhanced network monitoring 
and customer reporting, as well as Regulation SCI-mandated processes 
associated with its network technology. Both fixed and variable 
expenses have significant impact on the Exchange's overall costs to 
provide and maintain access to the Exchange's System Networks via a 
10Gb ULL fiber connection. For example, to accommodate new Members, the 
Exchange may need to purchase additional hardware to support those 
Members as well as provide enhanced monitoring and reporting of 
customer performance that the Exchange and its affiliates currently 
provide. Further, as the total number of Members increases, the 
Exchange and its affiliates may need to increase their data center 
footprint and consume more power, resulting in increased costs charged 
by their third-party data center provider. Accordingly, the cost to the 
Exchange and its affiliates to provide access to its Members is not 
fixed. The Exchange believes the 10Gb ULL Fee is a reasonable attempt 
to offset a portion of those costs associated with providing and 
maintaining access to its System Networks' infrastructure and related 
10Gb ULL fiber connection.
    The Exchange estimated its total annual expense to provide and 
maintain access to the Exchange's System Networks via a 10Gb ULL fiber 
connection based on the following general expense categories: (1) 
External expenses, which include fees paid to third parties for certain 
products and services; (2) internal expenses relating to the internal 
costs to provide the services associated with the 10Gb ULL Fee; and (3) 
general shared expenses.\25\ The Guidance does not include any 
information regarding the methodology that an exchange should use to 
determine its cost associated with a proposed fee change. The Exchange 
utilized a methodology in this proposed fee change that it believes is 
reasonable because the Exchange analyzed its entire cost structure, 
allocated a percentage of each cost attributable to maintaining its 
System Networks, then divided those costs according to the cost 
methodology outlined below.
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    \25\ The percentage allocations used in this proposed rule 
change may differ from past filings from the Exchange or its 
affiliates due to, among other things, changes in expenses charged 
by third parties, adjustments to internal resource allocations, and 
different system architecture of the Exchange as compared to its 
affiliates.
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    For 2022, for MIAX and MIAX Pearl Options, the total combined 
annual expense for providing the access services associated with the 
10Gb ULL Fee is estimated to be $19,666,270, or $1,638,855 per month. 
The Exchange believes it is more appropriate to analyze the 10Gb ULL 
Fee utilizing its 2022 revenue and costs, which utilize the same 
presentation methodology as set forth in the Exchange's previously-
issued Audited Unconsolidated Financial Statements.\26\ The $19,666,270 
estimated total annual combined expense is directly related to the 
access to the Exchange's System Networks via a 10Gb ULL fiber 
connection, and not any other product or service offered by the 
Exchange. For example, it does not include general costs of operating 
matching engines and other trading technology. No expense amount was 
allocated twice. Each of the categories of expenses are set forth in 
the following table and details of the individual line-item costs 
considered by the Exchange for each category are described further 
below.
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    \26\ For example, the Exchange previously noted that all third-
party expense described in its prior fee filing was contained in the 
information technology and communication costs line item under the 
section titled ``Operating Expenses Incurred Directly or Allocated 
From Parent,'' in the Exchange's 2019 Form 1 Amendment containing 
its financial statements for 2018. See Securities Exchange Act 
Release No. 87876 (December 31, 2019), 85 FR 757 (January 7, 2020) 
(SR-PEARL-2019-36). Accordingly, the third-party expense described 
in this filing is attributed to the same line item for the 
Exchange's 2022 Form 1 Amendment, which will be filed in 2023.

[[Page 23577]]



------------------------------------------------------------------------
                            External expenses
-------------------------------------------------------------------------
                                                         Percentage of
                      Category                           total expense
                                                       amount allocated
------------------------------------------------------------------------
Data Center Provider................................                 62%
Fiber Connectivity Provider.........................                 62%
Security Financial Transaction Infrastructure                        75%
 (``SFTI''), and Other Connectivity and Content
 Services Providers.................................
Hardware and Software Providers.....................                 51%
                                                     -------------------
Total of External Expenses..........................     \27\ $4,382,307
------------------------------------------------------------------------
                            Internal Expenses
------------------------------------------------------------------------
Category                                                Expense amount
                                                           allocated
------------------------------------------------------------------------
Employee Compensation...............................          $7,063,801
Depreciation and Amortization.......................           4,184,851
Occupancy...........................................             701,437
                                                     -------------------
    Total of Internal Expenses......................          11,950,089
------------------------------------------------------------------------
Allocated Shared Expenses...........................           3,333,874
------------------------------------------------------------------------

    The Exchange notes that it only has two primary sources of revenue, 
connectivity and port fees, to recover those costs associated with 
providing and maintaining access to the Exchange's System Networks.
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    \27\ The Exchange does not believe it is appropriate to disclose 
the actual amount it pays to each individual third-party provider as 
those fee arrangements are competitive or the Exchange is 
contractually prohibited from disclosing that number.
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    The Exchange notes that, without the specific third-party and 
internal expense items, the Exchange would not be able to provide and 
maintain the System Networks and access to the System Networks via a 
10Gb ULL fiber connection to Members and non-Members. Each of these 
expense items, including physical hardware, software, employee 
compensation and benefits, occupancy costs, and the depreciation and 
amortization of equipment, has been identified through a line-by-line 
item analysis to be integral to providing and maintaining the System 
Networks and access to System Networks via a 10Gb ULL fiber connection.
    For clarity, the Exchange took a conservative approach in 
determining the expense and the percentage of that expense to be 
allocated to providing and maintaining the System Networks and access 
to System Networks in connection with 10Gb ULL fiber connectivity. The 
Exchange describes the analysis conducted for each expense and the 
resources or determinations that were considered when determining the 
amount necessary to allocate to each expense. Only a portion of all 
fees paid to such third-parties is included in the third-party expenses 
described herein, and no expense amount is allocated twice. 
Accordingly, the Exchange does not allocate its entire information 
technology and communication costs to providing and maintaining the 
System Networks and access to Exchange's System Networks via a 10Gb ULL 
fiber connection. This may result in the Exchange under allocating an 
expense to provide and maintain its System Networks and access to the 
System Networks via a 10Gb ULL fiber connection, and such expenses may 
actually be higher than what the Exchange allocated as part of this 
proposal. The Exchange notes that expenses associated with its 
affiliates, MIAX Emerald and MIAX Pearl Equities, are accounted for 
separately and are not included within the scope of this filing.
    Further, as part its ongoing assessment of costs and expenses, the 
Exchange recently conducted a periodic, thorough review of its expenses 
and resource allocations which resulted in revised percentage 
allocations in this filing. The revised percentages are, among other 
things, the result of the shuffling of internal resources in response 
to business objectives and changes to fees charged and services 
provided by third parties. Therefore, the percentage allocations used 
in this proposed rule change may differ from past filings from the 
Exchange or its affiliates due to, among other things, changes in 
expenses charged by third-parties, adjustments to internal resource 
allocations, and different system architecture of the Exchange as 
compared to its affiliates.
External Expense Allocations
    For 2022, expenses relating to fees paid by the Exchange and MIAX 
to third parties for products and services necessary to provide and 
maintain the System Networks and access to the System Networks via a 
10Gb ULL fiber connection are estimated to be $4,382,307. This 
includes, but is not limited to, a portion of the fees paid to: (1) A 
third-party data center provider, including for the primary, secondary, 
and disaster recovery locations of the Exchange's trading system 
infrastructure; (2) a fiber connectivity provider for network services 
(fiber and bandwidth products and services) linking the Exchange's and 
its affiliates' office locations in Princeton, New Jersey and Miami, 
Florida, to all data center locations; (3) SFTI, which supports 
connectivity feeds for the entire U.S. options industry; (4) various 
other content and connectivity service providers, which provide 
content, connectivity services, and infrastructure services for 
critical components of options connectivity and network services; and 
(5) various other hardware and software providers that support the 
production environment in which Members and non-Members connect to the 
network to trade and receive market data.
Data Center Space and Operations Provider
    The Exchange does not own the primary data center or the secondary 
data center, but instead leases space in data centers operated by third 
parties where the Exchange houses servers, switches and related 
equipment. Data center costs include an allocation of the

[[Page 23578]]

costs the Exchange incurs to provide physical connectivity in the 
third-party data centers where it maintains its equipment as well as 
related costs. The data center provider operates the data centers 
(primary, secondary, and disaster recovery) that host the Exchange's 
network infrastructure. Without the retention of a third party data 
center, the Exchange would not be able to operate its systems and 
provide a trading platform for market participants. The Exchange does 
not employ a separate fee to cover its data center expense and recoups 
that expense, in part, by charging for 10Gb ULL connectivity.
    The Exchange reviewed its data center footprint, including its 
total rack space, cage usage, number of servers, switches, cabling 
within the data center, heating and cooling of physical space, storage 
space, and monitoring and divided its data center expenses among 
providing transaction services, market data, and connectivity. Based on 
this review, the Exchange determined that 62% of the total applicable 
data center provider expense is applicable to providing and maintaining 
access services and System Networks associated with the 10Gb ULL Fee. 
The Exchange believes this allocation is reasonable because 10Gb ULL 
connectivity is a core means of access to the Exchange's network, 
providing one method for market participants to send and receive order 
and trade messages, as well as receive market data. A large portion of 
the Exchange's data center expense is due to providing and maintaining 
connectivity to the Exchange's System Networks, including providing 
cabling within the data center between market participants and the 
Exchange. The Exchange excluded from this allocation servers that are 
dedicated to market data. The Exchange also did not allocate the 
remainder of the data center expense because it pertains to other areas 
of the Exchange's operations, such as ports, market data, and 
transaction services.
Fiber Connectivity Provider
    The Exchange engages a third-party service provider that provides 
the internet, fiber and bandwidth connections between the Exchange's 
networks, primary and secondary data center, and office locations in 
Princeton and Miami. Fiber connectivity is necessary for the Exchange 
to switch to its secondary data center in the case of an outage in its 
primary data center. Fiber connectivity also allows the Exchange's 
National Operations & Control Center (``NOCC'') and Security Operations 
Center (``SOC'') in Princeton to communicate with the Exchange's 
primary and secondary data centers. As such, all trade data, including 
the billions of messages each day, flow through this third-party 
provider's infrastructure over the Exchange's network. Without these 
services, the Exchange would not be able to operate and support the 
network and provide and maintain access services and System Networks 
associated with the 10Gb ULL Fee to its Members and their customers. 
Without the retention of a third-party fiber connectivity provider, the 
Exchange would not be able to communicate between its data centers and 
office locations. The Exchange does not employ a separate fee to cover 
its fiber connectivity expense and recoups that expense, in part, by 
charging for 10Gb ULL connectivity.
    The Exchange reviewed it costs to retain fiber connectivity from a 
third party, including the ongoing costs to support fiber connectivity, 
ensuring adequate bandwidth and infrastructure maintenance to support 
exchange operations, and ongoing network monitoring and maintenance and 
determined that 62% of the total fiber connectivity expense was 
applicable to providing and maintaining access services and System 
Networks associated with the 10Gb ULL Fee. The Exchange believes this 
allocation is reasonable because 10Gb ULL connectivity is a core means 
of access to the Exchange's network, providing one method for market 
participants to send and receive order and trade messages, as well as 
receive market data. A large portion of the Exchange's fiber 
connectivity expense is due to providing and maintaining connectivity 
between the Exchange's System Networks, data centers, and office 
locations and is core to the daily operation of the Exchange. Fiber 
connectivity is a necessary integral means to disseminate information 
from the Exchange's primary data center to other Exchange locations. 
The Exchange excluded from this allocation fiber connectivity usage 
related to market data or other business lines. The Exchange also did 
not allocate the remainder of this expense because it pertains to other 
areas of the Exchange's operations and does not directly relate to 
providing and maintaining access services and System Networks 
associated with the 10Gb ULL Fee. The Exchange believes this allocation 
is reasonable because it represents the Exchange's actual cost to 
retain fiber connectivity and maintain and provide access to its System 
Networks via a 10Gb ULL fiber connectivity.
Connectivity and Content Services Provided by SFTI and Other Providers
    The Exchange relies on SFTI and various other connectivity and 
content service providers for connectivity and data feeds for the 
entire U.S. options industry, as well as content, connectivity, and 
infrastructure services for critical components of the network that are 
necessary to provide and maintain its System Networks and access to its 
System Networks via a 10Gb ULL fiber connection. Specifically, the 
Exchange utilizes SFTI and other content service provider to connect to 
other national securities exchanges, the Options Price Reporting 
Authority (``OPRA''), and to receive market data from other exchanges 
and market data providers. SFTI is operated by the Intercontinental 
Exchange, the parent company of five registered exchanges, and has 
become integral to the U.S. markets. The Exchange understands SFTI 
provides services to most, if not all, of the other U.S. exchanges and 
other market participants. Without services from SFTI and various other 
service providers, the Exchange would not be able to connect to other 
national securities exchanges, market data providers, or OPRA and, 
therefore, would not be able to operate and support its System 
Networks. The Exchange does not employ a separate fee to cover its SFTI 
and content service provider expense and recoups that expense, in part, 
by charging for 10Gb ULL connectivity.
    The Exchange reviewed it costs to retain SFTI and other content 
service providers, including network monitoring and maintenance, 
remediation of connectivity related issues, and ongoing administrative 
activities related to connectivity management and determined that 75% 
of the total applicable SFTI and other service provider expense is 
allocated to providing the access services associated with the 10Gb ULL 
Fee. SFTI and other content service providers are key vendors and 
necessary components in providing connectivity to the Exchange. The 
primary service SFTI provides for the Exchange is connectivity to other 
national securities exchanges and their disaster recovery facilities 
and, therefore, a vast portion of this expense is allocated to 
providing access to the System Networks via a 10Gb ULL connection. 
Connectivity via SFTI is necessary for purposes of order routing and 
accessing disaster recovery facilities in the case of a system outage. 
Engaging SFTI and other like vendors provides purchasers of 10Gb ULL 
connectivity to

[[Page 23579]]

other national securities exchanges for purposes of order routing and 
disaster recovery. The Exchange did not allocate a portion of this 
expense that relates to the receipt of market data from other national 
securities exchange and OPRA. The Exchange also did not allocate the 
remainder of this expense because it pertains to other areas of the 
Exchange's operations and does not directly relate to providing and 
maintaining the System Networks or access to its System Networks via 
10Gb ULL fiber connection. The Exchange believes this allocation is 
reasonable because it represents the Exchange's actual cost to provide 
and maintain its System Networks and access to its System Networks via 
a 10Gb ULL fiber connection, and not any other service, as supported by 
its cost review.
Hardware and Software Providers
    The Exchange relies on dozens of third-party hardware and software 
providers for equipment necessary to operate its System Networks. This 
includes either the purchase or licensing of physical equipment, such 
as servers, switches, cabling, and monitoring devices. It also includes 
the purchase or license of software necessary for security monitoring, 
data analysis and Exchange operations. Hardware and software providers 
are necessary to maintain its System Networks and provide access to its 
System Networks via a 10Gb ULL fiber connection. Hardware and software 
equipment and licenses for that equipment are also necessary to operate 
and monitor physical assets necessary to offer physical connectivity to 
the Exchange. Hardware and software equipment and licenses are key to 
the operation of the Exchange and, without them, the Exchange would not 
be able to operate and support its System Networks and provide access 
to its Members and their customers. The Exchange does not employ a 
separate fee to cover its hardware and software expense and recoups 
that expense, in part, by charging for 10Gb ULL connectivity.
    The Exchange reviewed it hardware and software related costs, 
including software patch management, vulnerability management, 
administrative activities related to equipment and software management, 
professional services for selection, installation and configuration of 
equipment and software supporting exchange operations and determined 
that 51% of the total applicable hardware and software expense is 
allocated to providing and maintaining access services and System 
Networks associated with the 10Gb ULL Fee. Hardware and software 
equipment and licenses are key to the operation of the Exchange and its 
System Networks. Without them, market participants would not be able to 
access the System Networks via a 10Gb ULL connection. The Exchange only 
allocated the portion of this expense to the hardware and software that 
is related to a market participant's use of a 10Gb ULL connection, such 
as operating its matching engines. The Exchange, therefore, did not 
allocate portions of its hardware and software expense that related to 
other areas of the Exchange's business, such as hardware and software 
used for market data or unrelated administrative services. The Exchange 
also did not allocate the remainder of this expense because it pertains 
to other areas of the Exchange's operations, such as ports or 
transaction services, and does not directly relate to providing and 
maintaining its System Networks and access to its System Networks via a 
10Gb ULL fiber connection. The Exchange believes this allocation is 
reasonable because it represents the Exchange's cost to provide and 
maintain its System Networks and access to its System Networks via a 
10Gb ULL fiber connection, and not any other service, as supported by 
its cost review.
Internal Expense Allocations
    For 2022, total combined internal expenses relating to the Exchange 
and MIAX providing and maintaining the System Networks and access to 
the System Networks via a 10Gb ULL fiber connection are estimated to be 
$11,950,089. This includes, but is not limited to, costs associated 
with: (1) Employee compensation and benefits for full-time employees 
that support the System Networks and access to System Networks via a 
10Gb ULL fiber connection, including staff in network operations, 
trading operations, development, system operations, business, as well 
as staff in general corporate departments (such as legal, regulatory, 
and finance) that support those employees and functions as well as 
important system upgrades; (2) depreciation and amortization of 
hardware and software used to provide and maintain access services and 
System Networks associated with the 10Gb ULL Fee, including equipment, 
servers, cabling, purchased software and internally developed software 
used in the production environment to support the network for trading; 
and (3) occupancy costs for leased office space for staff that provide 
and maintain the System Networks and access to System Networks via 10G 
ULL fiber connections. The breakdown of these costs is more fully 
described below.
Employee Compensation and Benefits
    Human personnel are key to exchange operations and supporting the 
Exchange's ongoing provision and maintenance of the System Networks and 
access to System Networks via 10Gb ULL fiber connections. The Exchange 
reviewed its employee compensation and benefits expense and the portion 
of that expense allocated to providing and maintaining the System 
Networks and access to System Networks via 10Gb ULL fiber connections. 
As part of this review, the Exchange considered employees whose 
functions include providing and maintaining the System Networks and 
10Gb ULL connectivity and used a blended rate of compensation 
reflecting salary, stock and bonus compensation, bonuses, benefits, 
payroll taxes, and 401K matching contributions.\28\
---------------------------------------------------------------------------

    \28\ For purposes of this allocation, the Exchange did not 
consider expenses related to supporting employees who support 10Gb 
ULL connectivity, such as office space and supplies. The Exchange 
determined cost allocation for employees who perform work in support 
of offering access services and System Networks to arrive at a full 
time equivalent (``FTE'') of 8.9 FTEs across all the identified 
personnel. The Exchange then multiplied the FTE times a blended 
compensation rate for all relevant Exchange personnel to determine 
the personnel costs associated with providing the access services 
and System Networks associated with the 10Gb ULL Fee.
---------------------------------------------------------------------------

    Based on this review, the Exchange and MIAX determined to allocate 
a total combined amount of $7,063,801 in employee compensation and 
benefits expense to providing access to the System Networks. To 
determine the appropriate allocation the Exchange reviewed the time 
employees allocated to supporting its System Networks and access to its 
System Networks via 10Gb ULL fiber connections. Senior staff also 
reviewed these time allocations with department heads and team leaders 
to determine whether those allocations were appropriate. These 
employees are critical to the Exchange to provide and maintain access 
to its System Networks via 10Gb ULL fiber connections for its Members, 
non-Members and their customers. The Exchange determined the above 
allocation based on the personnel whose work focused on functions 
necessary to provide and maintain the System Networks and access to 
System Networks via 10Gb ULL fiber connections. The Exchange does not 
charge a separate fee regarding employees who support 10Gb ULL 
connectivity and the Exchange seeks to recoup that expense, in part, by 
charging for 10Gb ULL connections.

[[Page 23580]]

Depreciation and Amortization
    A key expense incurred by the Exchange relates to the depreciation 
and amortization of equipment that the Exchange procured to provide and 
maintain the System Networks and access to System Networks via 10Gb ULL 
fiber connections. The Exchange reviewed all of its physical assets and 
software, owned and leased, and determined whether each asset is 
related to providing and maintaining its System Networks and access to 
its System Networks via 10Gb ULL fiber connections, and added up the 
depreciation of those assets. All physical assets and software, which 
includes assets used for testing and monitoring of Exchange 
infrastructure, were valued at cost, depreciated or leased over periods 
ranging from three to five years. In determining the amount of 
depreciation and amortization to apply to providing 10Gb ULL 
connectivity and the System Networks, the Exchange considered the 
depreciation of hardware and software that are key to the operation of 
the Exchange and its System Networks. This includes servers, computers, 
laptops, monitors, information security appliances and storage, and 
network switching infrastructure equipment, including switches and 
taps, that were previously purchased to maintain and provide access to 
its System Networks via 10Gb ULL fiber connections. Without them, 
market participants would not be able to access the System Networks. 
The Exchange seeks to recoup a portion of its depreciation expense by 
charging for 10Gb ULL connectivity.
    Based on this review, the Exchange and MIAX determined to allocate 
a combined total amount of $4,184,851 in depreciation and amortization 
expense to providing access to the System Networks via a 10Gb ULL 
connection. The Exchange only allocated the portion of this 
depreciation expense to the hardware and software related to a market 
participant's use of a 10GB ULL connection. The Exchange, therefore, 
did not allocate portions of depreciation expense that relates to other 
areas of the Exchange's business, such as the depreciation of hardware 
and software used for market data or unrelated administrative 
services.\29\
---------------------------------------------------------------------------

    \29\ All of the expenses outlined in this proposed fee change 
refer to the operating expenses of the Exchange. The Exchange did 
not included any future capital expenditures within these costs. 
Depreciation and amortization represent the expense of previously 
purchased hardware and internally developed software spread over the 
useful life of the assets. Due to the fact that the Exchange has 
only included operating expense and historical purchases, there is 
no double counting of expenses in the Exchange's cost estimates.
---------------------------------------------------------------------------

Occupancy
    The Exchange rents and maintains multiple physical locations to 
house staff and equipment necessary to support access services, System 
Networks, and exchange operations. The Exchange's occupancy expense is 
not limited to the housing of personnel and includes locations used to 
store equipment necessary for Exchange operations. In determining the 
amount of its occupancy related expense, the Exchange considered actual 
physical space used to house employees whose functions include 
providing and maintaining the System Networks and 10Gb ULL 
connectivity. Similarly, the Exchange also considered the actual 
physical space used to house hardware and other equipment necessary to 
provide and maintain the System Networks and 10Gb ULL connectivity. 
This equipment includes computers, servers, and accessories necessary 
to support the System Networks and 10Gb ULL connectivity. Based on this 
review, the Exchange and MIAX determined to allocate a combined total 
amount of $701,437 of the occupancy expense to provide and maintain the 
System Networks and 10Gb ULL connectivity. The Exchange believes this 
allocation is reasonable because it represents the Exchange's cost to 
rent and maintain a physical location for the Exchange's staff who 
operate and support the System Networks, including providing and 
maintaining access to its System Networks via 10Gb ULL fiber 
connections. The Exchange considered the rent paid for the Exchange's 
Princeton and Miami offices, as well as various related costs, such as 
physical security, property management fees, property taxes, and 
utilities at each of those locations. The Exchange did not include 
occupancy expenses related to housing employees and equipment related 
to other Exchange operations, such as market data and administrative 
services.
* * * * *
    The Exchange notes that a material portion of its total overall 
expense is allocated to the provision and maintenance of access 
services (including connectivity and ports). The Exchange believes this 
is reasonable as the Exchange operates a technology-based business that 
differentiates itself from its competitors based on its more 
deterministic and resilient trading systems that rely on access to a 
high performance network, resulting in significant technology expense. 
Over two-thirds of Exchange staff are technology-related employees. The 
majority of the Exchange's expense is technology-based. Thus, the 
Exchange believes it is reasonable to allocate a material portion of 
its total overall expense towards providing and maintaining its System 
Networks and access to its System Networks via 10Gb ULL fiber 
connections.
Allocated Shared Expense
    Finally, a limited portion of general shared expenses was allocated 
to overall 10Gb ULL connectivity costs as without these general shared 
costs, the Exchange would not be able to operate in the manner that it 
does and provide 10Gb ULL connectivity. The costs included in general 
shared expenses include recruiting and training, marketing and 
advertising costs, professional fees for legal, tax and accounting 
services, and telecommunications costs. For 2022, the Exchange's and 
MIAX's general shared expense allocated to 10Gb ULL connectivity and 
the System Networks that support those connections is estimated to be 
$3,333,874. The Exchange used the weighted average of the above 
allocations to determine the amount of general shared expenses to 
allocate to the Exchange. Next, based on additional management and 
expense analysis, these fees are allocated to the proposal.
Revenue and Estimated Profit Margin
    The Exchange only has four primary sources of revenue and cost 
recovery mechanisms to fund all of its operations: Transaction fees, 
access fees (which includes the 10Gb ULL Fee), regulatory fees, and 
market data fees. Accordingly, the Exchange must cover all of its 
expenses from these four primary sources of revenue and cost recovery 
mechanisms.
    To determine the Exchange's estimated revenue associated with the 
10Gb ULL Fee, the Exchange analyzed the number of Members and non-
Members currently utilizing the 10Gb ULL fiber connection and used a 
recent monthly billing cycle representative of current monthly revenue. 
The Exchange also provided its baseline by analyzing March 2022, the 
monthly billing cycle prior to the proposed 10Gb ULL Fee and compared 
this to its expenses for that month. As discussed below, the Exchange 
does not believe it is appropriate to factor into its analysis future 
revenue growth or decline into its estimates for purposes of these 
calculations, given the uncertainty of such estimates due to the 
continually changing access needs of market

[[Page 23581]]

participants and potential changes in internal and third-party 
expenses.
    For March 2022, prior to the proposed 10Gb ULL Fee, Members and 
non-Members purchased a total of 172 10Gb ULL connections for which 
MIAX and MIAX Pearl anticipate charging collectively $1,720,000 
(depending on whether Members and non-Members drop or add connections 
mid-month, resulting in pro-rated charges). This will result in a loss 
of $81,145 for that month (a margin of -4.70%). For April 2022, the 
Exchange and MIAX anticipate Members and non-Members purchasing a total 
of 172 10Gb ULL connections. Assuming the Exchange and MIAX charge the 
proposed monthly rate of $12,000 per connection, the proposed fees 
would generate revenue of $2,064,000 for that month (not including 
potential pro-rated connection charges for mid-month connections). This 
would result in a profit of $425,145 ($2,064,000 minus $1,638,855) for 
that month (a modest 24% profit margin increase from March 2022 to 
April 2022 from -4.70% to 20%).
    The Exchange believes that conducting the above analysis on a per 
month basis is reasonable as the revenue generated from access services 
subject to the proposed fee generally remains static from month to 
month. The Exchange also conducted the above analysis on a per month 
basis to comply with the Commission Staff's Guidance, which requires a 
baseline analysis to assist in determining whether the proposal 
generates a supra-competitive profit. The Exchange cautions that this 
profit margin may also fluctuate from month to month based on the 
uncertainty of predicting how many connections may be purchased from 
month to month as Members and non-Members are free to add and drop 
connections at any time based on their own business decisions.
    The Exchange believes the proposed profit margin is reasonable and 
will not result in a ``supra-competitive'' profit. Until recently, the 
Exchange operated at a net annual loss since it launched operations in 
2017.\30\ The Guidance defines ``supra-competitive profit'' as 
``profits that exceed the profits that can be obtained in a competitive 
market.'' \31\ The Exchange has operated at a net loss due to a number 
of factors, one of which is choosing to forgo revenue by offering 
certain products, such as connectivity, at lower rates than other 
options exchanges to attract order flow and encourage market 
participants to experience the high determinism, low latency, and 
resiliency of the Exchange's trading systems. The Exchange should not 
now be penalized for now seeking to raise it fees to near market rates 
after offering such products as discounted prices.
---------------------------------------------------------------------------

    \30\ The Exchange has incurred a cumulative loss of $86 million 
since its inception in 2017 to 2020, the last year for which the 
Exchange's Form 1 data is available. See Exchange's Form 1/A, 
Application for Registration or Exemption from Registration as a 
National Securities Exchange, filed July 28, 2021, available at 
https://www.sec.gov/Archives/edgar/vprr/2100/21000461.pdf.
    \31\ See supra note 19.
---------------------------------------------------------------------------

    The Exchange notes that its revenue estimate is based on 
projections and will only be realized to the extent such revenue 
actually produces the revenue estimated. As a generally new entrant to 
the hyper-competitive exchange environment, and an exchange focused on 
driving competition, the Exchange does not yet know whether such 
expectations will be realized. For instance, in order to generate the 
revenue expected from 10 Gb ULL connectivity, the Exchange will have to 
be successful in retaining existing clients that wish to maintain 
physical connectivity or obtaining new clients that will purchase such 
services. To the extent the Exchange is successful in encouraging new 
clients to connect directly to the Exchange, the Exchange does not 
believe it should be penalized for such success. The Exchange, like 
other exchanges, is, after all, a for-profit business. While the 
Exchange believes in transparency around costs and potential margins, 
the Exchange does not believe that these estimates should form the sole 
basis of whether or not a proposed fee is reasonable or can be adopted. 
Instead, the Exchange believes that the information should be used 
solely to confirm that an Exchange is not earning supra-competitive 
profits, and the Exchange believes its cost analysis and related 
estimates demonstrate this fact.
    Further, the proposed profit margin reflects the Exchange's efforts 
to keep control of its costs. A profit margin should not be judged 
alone based on its size, but whether the ultimate fee reflects the 
value of the services provided and is in line with other exchanges. A 
profit margin on one exchange should not be deemed excessive where that 
exchange has been successful in control costs, but not excessive where 
an exchange is charging the same fee but has a lower profit margin due 
to higher costs.
    The expected profit margin is reasonable because the Exchange 
offers a premium System Network, System Networks connectivity, and a 
highly deterministic trading environment. The Exchange is recognized as 
a leader in network monitoring, determinism, risk protections, and 
network stability. For example, the Exchange experiences approximately 
a 95% determinism rate, system throughput of approximately 10.8 million 
quotes per second and average round trip latency rate of approximately 
30.76 microseconds for a single quote. The Exchange provides extreme 
performance and radical scalability designed to match the unique needs 
of trading differing asset class/market model combination. Exchange 
systems offer two customer interfaces, FIX gateway for orders, and ULL 
interfaces and data feeds with best-in-class wire order determinism. 
The Exchange also offers automated continuous testing to ensure high 
reliability, advanced monitoring and systems security, and employs a 
software architecture that results in minimizing the demands on power, 
space, and cooling while allowing for rapid scalability, resiliency and 
fault isolation. The Exchange also provides latency equalized cross-
connects in the primary data center ensures fair and cost efficient 
access to the MIAX systems. The Exchange, therefore, believes the 
anticipated profit margin is reasonable because it reflect the Exchange 
cost controls and the quality of the Exchanges systems.
    The Exchange also believes its proposed profit margin does not 
exceed what can be obtained in a competitive market. The Exchange is 
one of sixteen registered U.S. options exchanges and maintains an 
average market share of approximately 4.32%.\32\ The anticipated rate 
of return is reasonable because it is based on a rate that likely 
remains lower than what other exchanges with comparable market share 
charge for similar connectivity. For example the below table is 
provided for comparison purposes only to show how the Exchange's 
proposed fees compare to fees currently charged by other options 
exchanges for similar connectivity. As shown by the below table, the 
Exchange's proposed fee remains less than fees charged for similar 
connectivity provided by other options exchanges with similar market 
share, notwithstanding that the competing exchanges may have different 
system architectures that may result in different cost structures for 
the provision of connectivity.
---------------------------------------------------------------------------

    \32\ See supra note 6.

[[Page 23582]]



------------------------------------------------------------------------
                                                       Monthly fee  (per
          Exchange               Type of connection       connection)
------------------------------------------------------------------------
MIAX Pearl (as proposed)      10Gb ULL...............         $12,000.00
 (equity options market
 share of 4.32% as of March
 29, 2022 for the month of
 March) \33\.
NASDAQ \34\ (equity options   10Gb Ultra fiber.......          15,000.00
 market share of 8.62% as of
 March 29, 2022 for the
 month of March) \35\.
ISE \36\ (equity options      10Gb Ultra fiber.......          15,000.00
 market share of 5.83% as of
 March 29, 2022 for the
 month of March) \37\.
Amex \38\ (equity options     10Gb LX LCN............          22,000.00
 market share of 7.15% as of
 March 29, 2022 for the
 month of March) \39\.
GEMX \40\ (equity options     10Gb Ultra.............          15,000.00
 market share of 2.48% as of
 March 29, 2022 for the
 month of March) \41\.
------------------------------------------------------------------------

    Lastly, the Exchange notes that this is a singular potential profit 
margin from a single revenue source and is not reflective of the 
Exchange's overall profit margin. This profit margin may be offset by 
lower or negative profit margins generated by other areas of the 
Exchange's operations that are not subject to this proposed fee change. 
The Exchange only has four primary sources of revenue and cost recovery 
mechanisms to fund all of its operations: Transaction fees, access fees 
(which includes the 10Gb ULL Fee), regulatory fees, and market data 
fees. A potential profit margin in one area may be used to offset a 
potential loss in another area, and, therefore, a potential profit 
margin from a single product is not representative of the Exchange's 
overall profitability and whether that singular profit exceeds the 
profits that can be obtained in a competitive market.
---------------------------------------------------------------------------

    \33\ See supra note 6.
    \34\ See supra note 7.
    \35\ See supra note 6.
    \36\ See supra note 9.
    \37\ See supra note 6.
    \38\ See supra note 11.
    \39\ See supra note 6.
    \40\ See supra note 13.
    \41\ See supra note 6.
---------------------------------------------------------------------------

The Proposed Fees Are Reasonable When Compared to the Fees of Other 
Options Exchanges With Similar Market Share
    The Exchange does not have visibility into other equities 
exchanges' costs to provide connectivity or their fee markup over those 
costs, and therefore cannot use other exchange's connectivity fees as a 
benchmark to determine a reasonable markup over the costs of providing 
connectivity. Nevertheless, the Exchange believes the other exchanges' 
connectivity fees are a useful example of alternative approaches to 
providing and charging for connectivity notwithstanding that the 
competing exchanges may have different system architectures that may 
result in different cost structures for the provision of connectivity. 
To that end, the Exchange believes the proposed 10Gb ULL Fee is 
reasonable because the proposed fee is still less than fees charged for 
similar connectivity provided by other options exchanges with 
comparable market shares.
    As described in the above table, the Exchange's proposed fee 
remains less than fees charged for similar connectivity provided by 
other options exchanges with similar market share. In the each of the 
above cases, the Exchange's proposed fee is still significantly lower 
than that of competing options exchanges with similar market share. 
Despite proposing lower or similar fees to that of competing options 
exchanges with similar market share, the Exchange believes that it 
provides a premium network experience to its Members and non-Members 
via a highly deterministic System, enhanced network monitoring and 
customer reporting, and a superior network infrastructure than markets 
with higher market shares and more expensive connectivity alternatives. 
Each of the connectivity rates in place at competing options exchanges 
were filed with the Commission for immediate effectiveness and remain 
in place today.
The Proposed Fees are Equitably Allocated
    The Exchange believes that the proposed 10Gb ULL fees are equitably 
allocated among users of the network connectivity alternatives, as the 
users of the 10Gb ULL connections consume the most bandwidth and 
resources of the network. Specifically, the Exchange notes that these 
users account for approximately greater than 99% of message traffic 
over the network, while the users of the 1Gb connections account for 
approximately less than 1% of message traffic over the network. In the 
Exchange's experience, users of the 1Gb connections do not have a 
business need for the high performance network solutions required by 
10Gb ULL users. The Exchange's high performance network solutions and 
supporting infrastructure (including employee support), provides 
unparalleled system throughput with the network ability to support 
access to several distinct options markets and the capacity to handle 
approximately 38 million quote messages per second. On an average day, 
the Exchange and MIAX handle over approximately 8,304,500,000 billion 
total messages. Of that total, users of the 10Gb ULL connections 
generate approximately 8.3 billion messages, and users of the 1Gb 
connections generate approximately 4.5 million messages. However, in 
order to achieve a consistent, premium network performance, the 
Exchange must build out and maintain a network that has the capacity to 
handle the message rate requirements of its most heavy network 
consumers. These billions of messages per day consume the Exchange's 
resources and significantly contribute to the overall network 
connectivity expense for storage and network transport capabilities. 
Given this difference in network utilization rate, the Exchange 
believes that it is reasonable, equitable, and not unfairly 
discriminatory that the 10Gb ULL users pay for the vast majority of the 
shared network resources from which all Member and non-Member users 
benefit, but is designed and maintained from a capacity standpoint to 
specifically handle the message rate and performance requirements of 
10Gb and 10Gb ULL users.
    The Exchange also believes that the connectivity fees are equitably 
allocated amongst users of the network connectivity alternatives, when 
these fees are viewed in the context of the overall trading volume on 
the Exchange. To illustrate, the purchasers of the 10Gb ULL 
connectivity account for approximately 94% of the volume on the 
Exchange. This overall volume percentage (94% of total Exchange volume) 
is in line with the amount of network connectivity revenue collected 
from 10Gb ULL purchasers (87% of total Exchange connectivity revenue). 
For example, utilizing the same recently completed billing cycle 
described above, Exchange Members and non-Members that purchased 10Gb 
ULL connections accounted for approximately 87% of the total network 
connectivity revenue collected by the

[[Page 23583]]

Exchange from all connectivity alternatives; and Members and non-
Members that purchased 1Gb and 10Gb connections accounted for 
approximately 13% of the revenue collected by the Exchange from all 
connectivity alternatives.
    Lastly, the Exchange further believes that the 10Gb ULL Fee are 
reasonable, equitably allocated and not unfairly discriminatory 
because, for one 10Gb ULL connection, the Exchange provides each Member 
or non-Member access to all twelve (12) matching engines on MIAX 
Pearland a vast majority choose to connect to all twelve (12) matching 
engines. The Exchange believes that other exchanges require firms to 
connect to multiple matching engines.\42\
---------------------------------------------------------------------------

    \42\ See Specialized Quote Interface Specification, Nasdaq PHLX, 
Nasdaq Options Market, Nasdaq BX Options, Version 6.5a, Section 2, 
Architecture (revised August 16, 2019), available at http://www.nasdaqtrader.com/content/technicalsupport/specifications/TradingProducts/SQF6.5a-2019-Aug.pdf. The Exchange notes that it is 
unclear whether the NASDAQ exchanges include connectivity to each 
matching engine for the single fee or charge per connection, per 
matching engine. See also NYSE Technology FAQ and Best Practices: 
Options, Section 5.1 (How many matching engines are used by each 
exchange?) (September 2020). The Exchange notes that NYSE provides a 
link to an Excel file detailing the number of matching engines per 
options exchange, with Arca and Amex having 19 and 17 matching 
engines, respectively.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.
    With respect to intra-market competition, the Exchange does not 
believe that the proposed rule change would place certain market 
participants at the Exchange at a relative disadvantage compared to 
other market participants or affect the ability of such market 
participants to compete. As is the case with the current proposed flat 
fee, the proposed fee would apply uniformly to all market participants 
regardless of the number of connections they choose to purchase. The 
proposed fee does not favor certain categories of market participants 
in a manner that would impose an undue burden on competition.
    The Exchange also does not believe that the proposed rule change 
will result in any burden on inter-market competition that is not 
necessary or appropriate in furtherance of the purposes of the Act. As 
discussed above, options market participants are not forced to connect 
to all options exchanges. There is no reason to believe that our 
proposed price increase will harm another exchange's ability to 
compete. There are other options markets of which market participants 
may connect to trade options. There is also a possible range of 
alternative strategies, including routing to the exchange through 
another participant or market center or accessing the Exchange 
indirectly. Market participants are free to choose which exchange or 
reseller to use to satisfy their business needs. Accordingly, the 
Exchange does not believe its proposed fee changes 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

    Written comments were neither solicited nor received.

III. Suspension of the Proposed Rule Change

    Pursuant to Section 19(b)(3)(C) of the Act,\43\ at any time within 
60 days of the date of filing of a proposed rule change pursuant to 
Section 19(b)(1) of the Act,\44\ the Commission summarily may 
temporarily suspend the change in the rules of a self-regulatory 
organization (``SRO'') 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. 
As discussed below, the Commission believes a temporary suspension of 
the proposed rule change is necessary and appropriate to allow for 
additional analysis of the proposed rule change's consistency with the 
Act and the rules thereunder.
---------------------------------------------------------------------------

    \43\ 15 U.S.C. 78s(b)(3)(C).
    \44\ 15 U.S.C. 78s(b)(1).
---------------------------------------------------------------------------

    When exchanges file their proposed rule changes with the 
Commission, including fee filings like the Exchange's present proposal, 
they are required to provide a statement supporting the proposal's 
basis under the Act and the rules and regulations thereunder applicable 
to the exchange.\45\ The instructions to Form 19b-4, on which exchanges 
file their proposed rule changes, specify that such statement ``should 
be sufficiently detailed and specific to support a finding that the 
proposed rule change is consistent with [those] requirements.'' \46\
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    \45\ See 17 CFR 240.19b-4 (Item 3 entitled ``Self-Regulatory 
Organization's Statement of the Purpose of, and Statutory Basis for, 
the Proposed Rule Change'').
    \46\ Id.
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    Among other things, exchange proposed rule changes are subject to 
Section 6 of the Act, including Sections 6(b)(4), (5), and (8), which 
requires the rules of an exchange to: (1) Provide for the equitable 
allocation of reasonable fees among members, issuers, and other persons 
using the exchange's facilities; \47\ (2) perfect the mechanism of a 
free and open market and a national market system, protect investors 
and the public interest, and not be designed to permit unfair 
discrimination between customers, issuers, brokers, or dealers; \48\ 
and (3) not impose any burden on competition not necessary or 
appropriate in furtherance of the purposes of the Act.\49\
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    \47\ 15 U.S.C. 78f(b)(4).
    \48\ 15 U.S.C. 78f(b)(5).
    \49\ 15 U.S.C. 78f(b)(8).
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    In temporarily suspending the Exchange's fee change, the Commission 
intends to further consider whether the proposal to modify fees for 
certain connectivity options is consistent with the statutory 
requirements applicable to a national securities exchange under the 
Act. In particular, the Commission will consider whether the proposed 
rule change satisfies the standards under the Act and the rules 
thereunder requiring, among other things, that an exchange's rules 
provide for the equitable allocation of reasonable fees among members, 
issuers, and other persons using its facilities; not permit unfair 
discrimination between customers, issuers, brokers or dealers; and do 
not impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act.\50\
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    \50\ See 15 U.S.C. 78f(b)(4), (5), and (8), respectively.
---------------------------------------------------------------------------

    Therefore, the Commission finds that it is appropriate in the 
public interest, for the protection of investors, and otherwise in 
furtherance of the purposes of the Act, to temporarily suspend the 
proposed rule change.\51\
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    \51\ For purposes of temporarily suspending the proposed rule 
change, the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
---------------------------------------------------------------------------

IV. Proceedings To Determine Whether To Approve or Disapprove the 
Proposed Rule Change

    The Commission is instituting proceedings pursuant to Sections 
19(b)(3)(C) \52\ and 19(b)(2)(B) \53\ of the Act to determine whether 
the Exchange's proposed rule change should be approved or disapproved.

[[Page 23584]]

Institution of such proceedings is appropriate at this time in view of 
the legal and policy issues raised by the proposed rule change. 
Institution of proceedings does not indicate that the Commission has 
reached any conclusions with respect to any of the issues involved. 
Rather, as described below, the Commission seeks and encourages 
interested persons to provide comments on the proposed rule change to 
inform the Commission's analysis of whether to approve or disapprove 
the proposed rule change.
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    \52\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily 
suspends a proposed rule change, Section 19(b)(3)(C) of the Act 
requires that the Commission institute proceedings under Section 
19(b)(2)(B) to determine whether a proposed rule change should be 
approved or disapproved.
    \53\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\54\ the Commission is 
providing notice of the grounds for possible disapproval under 
consideration. The Commission is instituting proceedings to allow for 
additional analysis of whether the Exchange has sufficiently 
demonstrated how the proposed rule change is consistent with Sections 
6(b)(4),\55\ 6(b)(5),\56\ and 6(b)(8) \57\ of the Act. Section 6(b)(4) 
of the Act 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. Section 6(b)(5) of the Act requires that the rules of a 
national securities exchange be designed, among other things, 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. Section 6(b)(8) of the Act 
requires that the rules of a national securities exchange not impose 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \54\ 15 U.S.C. 78s(b)(2)(B). 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.
    \55\ 15 U.S.C. 78f(b)(4).
    \56\ 15 U.S.C. 78f(b)(5).
    \57\ 15 U.S.C. 78f(b)(8).
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    The Commission asks that commenters address the sufficiency of the 
Exchange's statements in support of the proposal, in addition to any 
other comments they may wish to submit about the proposed rule change. 
In particular, the Commission seeks comment on the following aspects of 
the proposal and asks commenters to submit data where appropriate to 
support their views:
    1. Cost Estimates and Allocation. The Exchange states that it is 
not asserting that the proposed 10Gb ULL Fee is constrained by 
competitive forces, but rather set forth a ``cost-plus model,'' 
employing a ``conservative approach'' in determining the expense and 
the percentage of that expense to be allocated to providing and 
maintaining the System Networks and access to System Networks in 
connection with 10Gb ULL fiber connectivity.\58\ Setting forth its 
costs in providing 10Gb ULL connectivity, and as summarized in greater 
detail above, the Exchange projects that the total combined annual 
expense for the Exchange and MIAX Options for providing the access 
services associated with the 10Gb ULL Fee in 2022 will be $19,666,270, 
the sum of: (1) $4,382,307 in third-party expenses paid in total to 
their Data Center Provider (62% of the total applicable expense) for 
data center services; Fiber Connectivity Provider, for network services 
(62% of the total applicable expense); SFTI and other connectivity and 
content service providers for connectivity support (75% of the total 
applicable expense); and various other hardware and software providers 
(51% of the total applicable expense), (2) $11,950,089 in internal 
expenses, allocated to (a) employee compensation and benefit costs 
($7,063,801); (b) depreciation and amortization ($4,184,851); and (c) 
occupancy costs ($701,437) and (3) $3,333,874 of allocated general 
shared expenses that include recruiting and training, marketing and 
advertising costs, professional fees for legal, tax and accounting 
services, and telecommunications costs. Do commenters believe that 
these allocations are reasonable? Should the Exchange be required to 
provide more specific information regarding the allocation of third-
party expenses, such as the overall estimated cost for each category of 
external expenses or at minimum the total applicable third-party 
expenses? Should the Exchange have provided either a percentage 
allocation or statements regarding the Exchange's overall estimated 
costs for the internal expense categories and general shared expenses 
figure? Do commenters believe that the Exchange has provided sufficient 
detail about how it determined which costs are associated with 
providing and maintaining 10Gb ULL connectivity and why? Do commenters 
believe that the Exchange has provided sufficient detail about how it 
determined ``general shared expenses'' and how it determined what 
portion should be associated with providing and maintaining 10Gb ULL 
connectivity? Do commenters believe that the Exchange provided 
sufficient detail or explanation to support its claim that ``no expense 
amount is allocated twice,'' \59\ whether among the sub-categories of 
expenses in this filing, across the Exchange's fee filings for other 
products or services, or over time? The Exchange describes a 
``proprietary'' process that was applied in making these determinations 
or arriving at particular allocations. Do commenters believe further 
explanation is necessary? What are commenters' views on whether the 
Exchange has provided sufficient detail on the identity and nature of 
services provided by third parties? Across all of the Exchange's 
projected costs, what are commenters' views on whether the Exchange has 
provided sufficient detail on the elements that go into connectivity 
costs, including how shared costs are allocated and attributed to 
connectivity expenses, to permit an independent review and assessment 
of the reasonableness of purported cost-based fees and the 
corresponding profit margin thereon?
---------------------------------------------------------------------------

    \58\ See supra Section II.A.2.
    \59\ See id.
---------------------------------------------------------------------------

    2. Revenue Estimates and Profit Margin Range. The Exchange provides 
a single monthly revenue figure from March 2022 as the basis for 
calculating the profit margin of 20%. Do commenters believe this is 
reasonable? If not, why not? The Exchange states that their proposed 
fee structure is ``designed to cover its costs with a limited return in 
excess of such costs,'' and believes that a 20% margin is a limited 
return over such costs.\60\ The profit margin is also dependent on the 
accuracy of the cost projections which, if inflated (intentionally or 
unintentionally), may render the projected profit margin meaningless. 
The Exchange acknowledges that this margin may fluctuate from month to 
month due to changes in the number of connections purchased, and that 
costs may increase, but that the number of connections has not 
materially changed over the prior months and so the months that the 
Exchange has used as a baseline to perform its assessment are 
representative of reasonably anticipated costs and expenses.\61\ The 
Exchange does not account for the possibility of cost decreases, 
however. What are commenters' views on the extent to

[[Page 23585]]

which actual costs (or revenues) deviate from projected costs (or 
revenues)? Do commenters believe that the Exchange's methodology for 
estimating the profit margin is reasonable? Should the Exchange provide 
a range of profit margins that they believe are reasonably possible, 
and the reasons therefor?
---------------------------------------------------------------------------

    \60\ See supra Section II.A.2.
    \61\ See id.
---------------------------------------------------------------------------

    3. Reasonable Rate of Return. Do commenters agree with the Exchange 
that its expected 20% profit margin would constitute a reasonable rate 
of return over cost for 10GB ULL connectivity, and is not a ``supra-
competitive'' profit that exceeds the profits that can be obtained in a 
competitive market? If not, what would commenters consider to be a 
reasonable rate of return and/or what methodology would they consider 
to be appropriate for determining a reasonable rate of return? What are 
commenters' views regarding what factors should be considered in 
determining what constitutes a reasonable rate of return for 10Gb ULL 
connectivity fees? Do commenters believe it relevant to an assessment 
of reasonableness that the Exchange's proposed fees for 10Gb ULL 
connections are lower than those of other options exchanges to which 
the Exchange has compared the 10Gb ULL connectivity fees? Should an 
assessment of reasonable rate of return include consideration of 
factors other than costs; and if so, what factors should be considered, 
and why?
    4. Periodic Reevaluation. The Exchange has not stated that it would 
re-evaluate the appropriate level of 10Gb ULL fees if there is a 
material deviation from the anticipated profit margin. In light of the 
impact that the number of subscribers has on connectivity profit 
margins, and the potential for costs to decrease (or increase) over 
time, what are commenters' views on the need for exchanges to commit to 
reevaluate, on an ongoing and periodic basis, their cost-based 
connectivity fees to ensure that they stay in line with their stated 
profitability target and do not become unreasonable over time, for 
example, by failing to adjust for efficiency gains, cost increases or 
decreases, and changes in subscribers? How formal should that process 
be, how often should that reevaluation occur, and what metrics and 
thresholds should be considered? How soon after a new connectivity fee 
change is implemented should an exchange assess whether its subscriber 
estimates were accurate and at what threshold should an exchange commit 
to file a fee change if its estimates were inaccurate? Should an 
initial review take place within the first 30 days after a connectivity 
fee is implemented? 60 days? 90 days? Some other period?
    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 
[SRO] that proposed the rule change.'' \62\ 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,\63\ and 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.\64\ 
Moreover, ``unquestioning reliance'' on an SRO's representations in a 
proposed rule change would not be sufficient to justify Commission 
approval of a proposed rule change.\65\
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    \62\ 17 CFR 201.700(b)(3).
    \63\ See id.
    \64\ See id.
    \65\ See Susquehanna Int'l Group, LLP v. Securities and Exchange 
Commission, 866 F.3d 442, 446-47 (D.C. Cir. 2017) (rejecting the 
Commission's reliance on an SRO's own determinations without 
sufficient evidence of the basis for such determinations).
---------------------------------------------------------------------------

    The Commission believes it is appropriate to institute proceedings 
to allow for additional consideration and comment on the issues raised 
herein, including as to whether the proposal is consistent with the 
Act, any potential comments or supplemental information provided by the 
Exchange, and any additional independent analysis by the Commission.

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. In particular, the Commission invites the written views of 
interested persons concerning whether the proposal is consistent with 
Sections 6(b)(4), 6(b)(5), and 6(b)(8), or any other provision of the 
Act, or the rules and regulations thereunder. The Commission asks that 
commenters address the sufficiency and merit of the Exchange's 
statements in support of the proposal, in addition to any other 
comments they may wish to submit about the proposed rule change. 
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.\66\
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    \66\ 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).
---------------------------------------------------------------------------

    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposal should be approved or 
disapproved by May 11, 2022. Any person who wishes to file a rebuttal 
to any other person's submission must file that rebuttal by May 25, 
2022.
    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 email to <a href="/cdn-cgi/l/email-protection#3240475e571f515d5f5f575c4641724157511c555d44"><span class="__cf_email__" data-cfemail="a2d0d7cec78fc1cdcfcfc7ccd6d1e2d1c7c18cc5cdd4">[email protected]</span></a>. Please include 
File No. SR-PEARL-2022-11 on the subject line.

Paper Comments

    <bullet> Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-PEARL-2022-11. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit

[[Page 23586]]

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-2022-11 and should be 
submitted on or before May 11, 2022. Rebuttal comments should be 
submitted by May 25, 2022.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(3)(C) of the 
Act,\67\ that File Number SR-PEARL-2022-11 be, and hereby is, 
temporarily suspended. In addition, the Commission is instituting 
proceedings to determine whether the proposed rule change should be 
approved or disapproved.
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    \67\ 15 U.S.C. 78s(b)(3)(C).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\68\
---------------------------------------------------------------------------

    \68\ 17 CFR 200.30-3(a)(12), (57) and (58).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-08386 Filed 4-19-22; 8:45 am]
BILLING CODE 8011-01-P


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