31488 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Notices 

21See NYSE Arca Order at 74783. 

22See Richard Posner, Economic Analysis of Law 

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

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

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

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

(explaining the importance of alternatives to the 

presence of competition and the definition of 

markets and market power). Courts frequently refer 

to the Department of Justice and Federal Trade 

Commission merger guidelines to define product 

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

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

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

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

issues, courts have recognized the value of 

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

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

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

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

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

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

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

U.S. 1 (1958). 

23See NYSE Arca Order at 74783. 

24 Id. 

25 Id. 

26 15 U.S.C. 78s(b)(2). 

27 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 61914 

(April 15, 2010), 75 FR 21077. 

TABLE 1—TRADING CENTERS AND ESTIMATED % OF SHARE VOLUME IN

NMS STOCKS SEPTEMBER 2009— 

Continued 

Trading venue 

Share volume in NMS 

stocks 

(percent) 

200+ Broker-Dealers (Estimated) ............................... 17.5 

The market share percentages in Table 

1 strongly indicate that NYSE Arca must 

compete vigorously for order flow to 

maintain its share of trading volume. 

This compelling need to attract order 

flow imposes significant pressure on 

NYSE Arca to act reasonably in setting 

its fees for NYSE Arca market data, 

particularly given that the market 

participants that must pay such fees 

often will be the same market 

participants from whom NYSE Arca 

must attract order flow. These market 

participants particularly include the 

large broker-dealer firms that control the 

handling of a large volume of customer 

and proprietary order flow. Given the 

portability of order flow from one 

trading venue to another, any exchange 

that seeks to charge unreasonably high 

data fees would risk alienating many of 

the same customers on whose orders it 

depends for competitive survival.21

In addition to the need to attract order 

flow, the availability of alternatives to 

NYSE Arca Market Data significantly 

affect the terms on which NYSE Arca 

can distribute this market data.22 In 

setting the fees for NYSE Arca Market 

Data, NYSE Arca must consider the 

extent to which market participants 

would choose one or more alternatives 

instead of purchasing the exchange’s 

data.23 Of course, the most basic source 

of information generally available at an 

exchange is the complete record of an 

exchange’s transactions that is provided 

in the core data feeds.24 In this respect, 

the core data feeds that include an 

exchange’s own transaction information 

are a significant alternative to the 

exchange’s market data product.25 The 

various self-regulatory organizations, 

the several Trade Reporting Facilities of 

FINRA, and ECNs that produce 

proprietary data are all sources of 

competition. 

In sum, there are a variety of 

alternative sources of information that 

impose significant competitive 

pressures on NYSE Arca in setting the 

terms for distributing its NYSE Arca 

Market Data. The Commission believes 

that the availability of those 

alternatives, as well as NYSE Amex’s 

compelling need to attract order flow, 

imposed significant competitive 

pressure on NYSE Amex to act 

equitably, fairly, and reasonably in 

setting the terms of its proposal. 

Because NYSE Arca was subject to 

significant competitive forces in setting 

the terms of the proposal, the 

Commission will approve the proposal 

in the absence of a substantial 

countervailing basis to find that its 

terms nevertheless fail to meet an 

applicable requirement of the Act or the 

rules thereunder. An analysis of the 

proposal does not provide such a basis. 

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,26 that the 

proposed rule change (SR–NYSEArca– 

2010–23) be, and hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.27

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–13334 Filed 6–2–10; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–62181; File No. SR–NYSE– 

2010–30] 

Self-Regulatory Organizations; New 

York Stock Exchange, LLC; Order 

Approving Proposed Rule Change To 

Establish the NYSE BBO Service 

May 26, 2010. 

I. Introduction 

On April 1, 2010, the New York Stock 

Exchange, LLC (‘‘NYSE’’ or the 

‘‘Exchange’’) filed with the Securities 

and Exchange Commission 

(‘‘Commission’’), pursuant to Section 

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

of 1934 (‘‘Act’’) 1 and Rule 19b–4 

thereunder,2 a proposed rule change to 

establish the NYSE BBO Service, a 

service that will make available the 

Exchange’s best bids and offers and to 

establish fees for that service. The 

proposed rule change was published for 

comment in the Federal Register on 

April 22, 2010.3 The Commission 

received no comment letters on the 

proposal. This order approves the 

proposed rule change. 

II. Description of the Proposal 

a. Subscribers and Data Feed Recipients 

The NYSE BBO Service is a NYSEonly market data service that allows a 

vendor to redistribute on a real-time 

basis the same best-bid-and-offer 

information that NYSE reports under 

the CQ Plan for inclusion in the CQ 

Plan’s consolidated quotation 

information data stream (‘‘NYSE BBO 

Information’’). NYSE BBO Information 

would include the best bids and offers 

for all securities that are traded on the 

Exchange and for which NYSE reports 

quotes under the CQ Plan. NYSE will 

make the NYSE BBO Service available 

over a single datafeed, regardless of the 

markets on which the securities are 

listed. 

The NYSE BBO Service would allow 

vendors, broker-dealers, private network 

providers and other entities (‘‘NYSEOnly Vendors’’) to make NYSE BBO 

Information available on a real-time 

basis. NYSE-Only Vendors may 

distribute the NYSE BBO Service to 

both professional and nonprofessional 

subscribers. 

The Exchange would make NYSE 

BBO Information available through its 

new NYSE BBO Service no earlier than 


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Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Notices 31489 

4The Commission approved the Exchange’s 

NYSE Trades service, a NYSE-only market data 

service that allows a vendor to redistribute on a 

real-time basis the same last sale information that 

the Exchange reports to the Consolidated Tape 

Association (‘‘CTA’’) for inclusion in CTA’s 

consolidated data stream and certain other related 

data elements. See Securities Exchange Act Release 

No. 59606 (March 19, 2009), 74 FR 13293 (March 

26, 2009) (SR–NYSE–2009–04). 

5See Securities Exchange Act Release No. 62038 

(May 5, 2010), 75 FR 26825 (May 12, 2010) (SR– 

NYSE–2010–22) (approving on a permanent basis 

the alternative unit-of-count methodology). 

it makes that information available to 

the processor under the CQ Plan. 

b. Fees 

i. Access Fee 

For the receipt of access to the NYSE 

BBO datafeed, the Exchange proposes to 

charge $1500 per month. One $1500 

monthly access fee entitles an NYSEOnly Vendor to receive both the NYSE 

BBO datafeed as well as the Exchange’s 

NYSE Trades datafeed.4 The fee applies 

to receipt of NYSE market data within 

the NYSE-Only Vendor’s organization or 

outside of it. 

ii. Professional Subscriber Fees 

For the receipt and use of NYSE BBO 

Information, the Exchange proposes to 

charge $15 per month per professional 

subscriber device. 

In addition, the Exchange proposes to 

offer an alternative methodology to the 

traditional device fee. Instead of 

charging $15 per month per device, it 

proposes to offer NYSE-Only Vendors 

the option of paying $15 per month per 

‘‘Subscriber Entitlement.’’ The fee 

entitles the end-user to receive and use 

NYSE BBO Information relating to all 

securities traded on NYSE, regardless of 

the market on which a security is listed. 

For the purpose of calculating 

Subscriber Entitlements, the Exchange 

proposes to adopt the unit-of-count 

methodology approved by the 

Commission earlier this year with 

respect to its NYSE OpenBook® service 

(the ‘‘Unit-of-Count Filing’’).5

iii. Nonprofessional Subscriber Fee 

The Exchange proposes to charge each 

NYSE-Only Vendor $5.00 per month for 

each nonprofessional subscriber to 

whom it provides NYSE BBO 

Information. The Exchange proposes to 

impose the charge on the NYSE-Only 

Vendor, rather than on the 

nonprofessional Subscriber. In addition, 

the Exchange proposes, to establish as 

an alternative to the fixed $5.00 

monthly fee, a fee of $.005 for each 

response that a NYSE-Only Vendor 

disseminates to a nonprofessional 

Subscriber’s inquiry for a best bid or 

offer under the NYSE BBO service. The 

Exchange proposes to limit a NYSEOnly Vendor’s exposure under this 

alternative fee to $5.00 per month, the 

same amount as the proposed fixed 

monthly nonprofessional Subscriber flat 

fee. In order to take advantage of the 

per-query fee, a NYSE-Only Vendor 

must document in its Exhibit A that it 

can: (1) Accurately measure the number 

of queries from each nonprofessional 

Subscriber and (2) report aggregate 

query quantities on a monthly basis. 

The Exchange will impose the perquery fee only on the dissemination of 

best bids and offers to nonprofessional 

Subscribers. The per-query charge is 

imposed on NYSE-Only Vendors, not 

end-users, and is payable on a monthly 

basis. NYSE-Only Vendors may elect to 

disseminate the NYSE BBO service 

pursuant to the per-query fee rather than 

the fixed monthly fee. 

In establishing a nonprofessional 

Subscriber fee for the NYSE BBO 

Service, the Exchange proposes to apply 

the same criteria for qualification as a 

‘‘nonprofessional subscriber’’ as the CTA 

and CQ Plan Participants use. Similar to 

the CTA and CQ Plans, classification as 

a nonprofessional subscriber is subject 

to Exchange review and requires the 

subscriber to attest to his or her 

nonprofessional subscriber status. A 

‘‘nonprofessional subscriber’’ is a natural 

person who uses the data solely for his 

personal, non-business use and who is 

neither: 

A. Registered or qualified with the 

Securities and Exchange Commission, 

the Commodities Futures Trading 

Commission, any state securities 

agency, any securities exchange or 

association, or any commodities or 

futures contract market or association, 

B. Engaged as an ‘‘investment adviser’’ 

as that term is defined in Section 

202(a)(11) of the Investment Advisors 

Act of 1940 (whether or not registered 

or qualified under that act), nor 

C. Employed by a bank or other 

organization exemption from 

registration under Federal and/or state 

securities laws to perform functions that 

would require him/her to be so 

registered or qualified if he/she were to 

perform such function for an 

organization not so exempt. 

c. Justification of Fees 

The Exchange believes that the 

proposed monthly access fee, 

professional subscriber fee and 

nonprofessional subscriber fee for the 

NYSE BBO Service will enable NYSEOnly Vendors and their subscribers to 

contribute to the Exchange’s operating 

costs in a manner that is appropriate for 

the distribution of NYSE BBO 

Information in the form taken by the 

proposed services. In setting the level of 

the proposed fees, the Exchange 

considered several factors, including: 

(i) NYSE’s expectation that the NYSE 

BBO Service is likely to be a premium 

service, used by investors most 

concerned with receiving NYSE BBO 

Information on a low latency basis; 

(ii) The fees that the CQ Plan 

Participants, Nasdaq, NYSE Amex and 

NYSE Arca are charging for similar 

services (or that NYSE anticipates they 

will soon propose to charge); 

(iii) Consultation with some of the 

entities that the Exchange anticipates 

will be the most likely to take advantage 

of the proposed service; 

(iv) The contribution of market data 

revenues that the Exchange believes is 

appropriate for entities that are most 

likely to take advantage of the proposed 

service; 

(v) The contribution that revenues 

accruing from the proposed fee will 

make to meet the overall costs of the 

Exchange’s operations; 

(vi) The savings in administrative and 

reporting costs that the NYSE BBO 

Service will provide to NYSE-Only 

Vendors (relative to counterpart services 

under the CQ Plan); and 

(vii) The fact that the proposed fees 

provide alternatives to existing fees 

under the CQ Plan, alternatives that 

vendors will purchase only if they 

determine that the perceived benefits 

outweigh the cost. 

d. Administrative Requirements 

The Exchange will require each 

NYSE-Only Vendor to enter into a 

vendor agreement just as the CTA and 

CQ Plans require recipients of the 

Network A datafeeds to enter (the 

‘‘Consolidated Vendor Form’’). The 

agreement will authorize the NYSEOnly Vendor to provide NYSE BBO 

Information to its customers or to 

distribute the data internally. 

In addition, the Exchange will require 

each professional end-user that receives 

NYSE BBO Information from a vendor 

or broker-dealer to enter into the form 

of professional subscriber agreement 

into which the CTA and CQ Plans 

require end users of Network A data to 

enter. It will also require NYSE-Only 

Vendors to subject nonprofessional 

subscribers to the same contract 

requirements as the CTA and CQ Plan 

Participants require of Network A 

nonprofessional subscribers. 

III. Discussion 

After careful consideration, the 

Commission finds that the proposed 

rule change is consistent with the 

requirements of the Act and the rules 

and regulations thereunder applicable to 


sroberts on DSKD5P82C1PROD with NOTICES
31490 Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Notices 

6 In approving this 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). 

7 15 U.S.C. 78f(b)(4). 

8 15 U.S.C. 78f(b)(5). 

9 15 U.S.C. 78f(b)(8). 

10 17 CFR 242.603(a). 

11NYSE is an exclusive processor of the NYSE 

BBO service under Section 3(a)(22)(B) of the Act, 

15 U.S.C. 78c(a)(22)(B), which defines an exclusive 

processor as, among other things, an exchange that 

distributes information with respect to quotations 

or transactions on an exclusive basis on its own 

behalf. 

12Securities Exchange Act Release No. 59039 

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

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

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

describes in great detail the competitive factors that 

apply to non-core market data products. The 

Commission hereby incorporates by reference the 

data and analysis from the NYSE Arca Order into 

this order. 

13 Id. at 74771. 

14 Id. at 74782. 

15 Id. at 74781. 

16See 17 CFR 242.603(b). (‘‘Every national 

securities exchange on which an NMS stock is 

traded and national securities association shall act 

jointly pursuant to one or more effective national 

market system plans to disseminate consolidated 

information, including a national best bid and 

national best offer, on quotations for and 

transactions in NMS stocks. Such plan or plans 

shall provide for the dissemination of all 

consolidated information for an individual NMS 

stock through a single plan processor.’’) 

17See NYSE Arca Order at 74779. 

18 Id. 

19 Id. 

20The Commission recently published estimated 

trading percentages in NMS Stocks in its Concept 

Release on Equity Market Structure. See Securities 

Exchange Act Release No. 61358 (January 14, 2010), 

75 FR 3594, 3597 n. 21 (January 21, 2010) (File No. 

S7–02–10). 

a national securities exchange.6 In 

particular, it is consistent with Section 

6(b)(4) of the Act,7 which requires that 

the rules of a national securities 

exchange provide for the equitable 

allocation of reasonable dues, fees, and 

other charges among its members and 

issuers and other parties using its 

facilities, and Section 6(b)(5) of the 

Act,8 which requires, among other 

things, that the rules of a national 

securities exchange be designed to 

promote just and equitable principles of 

trade, to remove impediments to and 

perfect the mechanism of a free and 

open market and a national market 

system and, in general, to protect 

investors and the public interest, and 

not be designed to permit unfair 

discrimination between customers, 

issuers, brokers, or dealers. 

The Commission also finds that the 

proposed rule change is consistent with 

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

Act,9 which requires that the rules of an 

exchange not impose any burden on 

competition not necessary or 

appropriate in furtherance of the 

purposes of the Act. Finally, the 

Commission finds that the proposed 

rule change is consistent with Rule 

603(a) of Regulation NMS,10 adopted 

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

which requires an exclusive processor 

that distributes information with respect 

to quotations for or transactions in an 

NMS stock to do so on terms that are 

fair and reasonable and that are not 

unreasonably discriminatory.11

The Commission has reviewed the 

proposal using the approach set forth in 

the NYSE Arca Order for non-core 

market data fees.12 In the NYSE Arca 

Order, the Commission stated that 

‘‘when possible, reliance on competitive 

forces is the most appropriate and 

effective means to assess whether the 

terms for the distribution of non-core 

data are equitable, fair and reasonable, 

and not unreasonably 

discriminatory.’’ 13 It noted that the 

‘‘existence of significant competition 

provides a substantial basis for finding 

that the terms of an exchange’s fee 

proposal are equitable, fair, reasonable, 

and not unreasonably or unfairly 

discriminatory.’’ 14 If an exchange ‘‘was 

subject to significant competitive forces 

in setting the terms of a proposal,’’ the 

Commission will approve a proposal 

unless it determines that ‘‘there is a 

substantial countervailing basis to find 

that the terms nevertheless fail to meet 

an applicable requirement of the 

Exchange Act or the rules 

thereunder.’’ 15

As noted in the NYSE Arca Order, the 

standards in Section 6 of the Act and 

Rule 603 of Regulation NMS do not 

differentiate between types of data and 

therefore apply to exchange proposals to 

distribute both core data and non-core 

data. Core data is the best-priced 

quotations and comprehensive last-sale 

reports of all markets that the 

Commission, pursuant to Rule 603(b), 

requires a central processor to 

consolidate and distribute to the public 

pursuant to joint-SRO plans.16 In 

contrast, individual exchanges and 

other market participants distribute 

non-core data voluntarily.17 The 

mandatory nature of the core data 

disclosure regime leaves little room for 

competitive forces to determine 

products and fees.18 Non-core data 

products and their fees are, by contrast, 

much more sensitive to competitive 

forces. The Commission therefore is able 

to use competitive forces in its 

determination of whether an exchange’s 

proposal to distribute non-core data 

meets the standards of Section 6 and 

Rule 603.19 Because NYSE’s instant 

proposal relates to the distribution of 

non-core data, the Commission will 

apply the market-based approach set 

forth in the NYSE Arca Order. 

The Exchange proposes to establish a 

service that would allow a vendor to 

redistribute best bids and offers for all 

securities that are traded on the 

Exchange and for which NYSE reports 

quotes under the CQ Plan. The 

Exchange proposes to establish a 

monthly vendor fee and an alternative 

fee rate that uses the unit-of-count 

methodology. The Exchange represents 

that this change would provide 

investors with a less expensive 

alternative to access bids and offer 

calculations than the CQ Plan’s 

consolidated data. 

The proposal before the Commission 

relates to fees for NYSE BBO 

Information which is a non-core, market 

data product. As in the Commission’s 

NYSE Arca Order analysis, at least two 

broad types of significant competitive 

forces applied to NYSE in setting the 

terms of this proposal: (i) NYSE’s 

compelling need to attract order flow 

from market participants; and (ii) the 

availability to market participants of 

alternatives to purchasing NYSE’s BBO 

Information. 

Attracting order flow is the core 

competitive concern of any equity 

exchange, including NYSE. Attracting 

order flow is an essential part of NYSE’s 

competitive success. If NYSE cannot 

attract order flow to its market, it will 

not be able to execute transactions. If 

NYSE cannot execute transactions on its 

market, it will not generate transaction 

revenue. If NYSE cannot attract orders 

or execute transactions on its market, it 

will not have market data to distribute, 

for a fee or otherwise, and will not earn 

market data revenue and thus not be 

competitive with other exchanges that 

have this ability. Table 1 below provides 

a useful recent snapshot of the state of 

competition in the U.S. equity markets 

in the month of September 2009:20

TABLE 1—TRADING CENTERS AND ESTIMATED % OF SHAREVOLUME IN

NMS STOCKS SEPTEMBER 2009 

Trading Venue 

Share Volume in NMS 

Stocks 

Registered Exchanges: 

NASDAQ ............................... 19.4 

NYSE .................................... 14.7 

NYSE Arca ............................ 13.2 

BATS ..................................... 9.5 

NASDAQ OMX BX ................ 3.3 


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Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Notices 31491 

21See NYSE Arca Order at 74783. 

22See Richard Posner, Economic Analysis of Law 

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

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

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

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

(explaining the importance of alternatives to the 

presence of competition and the definition of 

markets and market power). Courts frequently refer 

to the Department of Justice and Federal Trade 

Commission merger guidelines to define product 

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

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

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

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

issues, courts have recognized the value of 

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

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

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

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

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

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

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

U.S. 1 (1958). 

23See NYSE Arca Order at 74783. 

24 Id. 

25 Id. 

26 15 U.S.C. 78s(b)(2). 

27 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

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

4 17 CFR 240.19b–4(f)(6)(iii). 

TABLE 1—TRADING CENTERS AND ESTIMATED % OF SHAREVOLUME IN

NMS STOCKS SEPTEMBER 2009— 

Continued 

Trading Venue 

Share Volume in NMS 

Stocks 

Other Registered Exchanges 3.7 

ECNs: 

5 ECNS ................................. 10.8 

Dark Pools: 

32 Dark Pools (Estimated) .... 7.9 

Broker-Dealer Internatization: 

200+ Broker-Dealers (Estimated) ............................... 17.5 

The market share percentages in Table 

1 strongly indicate that NYSE must 

compete vigorously for order flow to 

maintain its share of trading volume. 

This compelling need to attract order 

flow imposes significant pressure on 

NYSE to act reasonably in setting its 

fees for NYSE market data, particularly 

given that the market participants that 

must pay such fees often will be the 

same market participants from whom 

NYSE must attract order flow. These 

market participants particularly include 

the large broker-dealer firms that control 

the handling of a large volume of 

customer and proprietary order flow. 

Given the portability of order flow from 

one trading venue to another, any 

exchange that seeks to charge 

unreasonably high data fees would risk 

alienating many of the same customers 

on whose orders it depends for 

competitive survival.21

In addition to the need to attract order 

flow, the availability of alternatives to 

NYSE’s BBO Information data 

significantly affect the terms on which 

NYSE can distribute this market data.22

In setting the fees for its NYSE BBO 

Service, NYSE must consider the extent 

to which market participants would 

choose one or more alternatives instead 

of purchasing the exchange’s data.23 Of 

course, the most basic source of 

information generally available at an 

exchange is the complete record of an 

exchange’s transactions that is provided 

in the core data feeds.24 In this respect, 

the core data feeds that include an 

exchange’s own transaction information 

are a significant alternative to the 

exchange’s market data product.25 The 

various self-regulatory organizations, 

the several Trade Reporting Facilities of 

FINRA, and ECNs that produce 

proprietary data are all sources of 

competition. 

In sum, there are a variety of 

alternative sources of information that 

impose significant competitive 

pressures on the NYSE in setting the 

terms for distributing its NYSE BBO 

Information. The Commission believes 

that the availability of those 

alternatives, as well as the NYSE’s 

compelling need to attract order flow, 

imposed significant competitive 

pressure on the NYSE to act equitably, 

fairly, and reasonably in setting the 

terms of its proposal. 

Because the NYSE was subject to 

significant competitive forces in setting 

the terms of the proposal, the 

Commission will approve the proposal 

in the absence of a substantial 

countervailing basis to find that its 

terms nevertheless fail to meet an 

applicable requirement of the Act or the 

rules thereunder. An analysis of the 

proposal does not provide such a basis. 

V. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,26 that the 

proposed rule change (SR–NYSE–2010– 

30) be, and hereby is, approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.27

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–13336 Filed 6–2–10; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–62177; File No. SR–BATS– 

2010–013] 

Self-Regulatory Organizations; BATS 

Exchange, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change To Amend BATS Rule 

19.5, entitled ‘‘Minimum Participation 

Requirement for Opening Trading of 

Option Series’’ 

May 26, 2010. 

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

Securities Exchange Act of 1934 

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

notice is hereby given that on May 13, 

2010, BATS Exchange, Inc. (the 

‘‘Exchange’’ or ‘‘BATS’’) filed with the 

Securities and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I and II 

below, which Items have been prepared 

by the Exchange. The Exchange has 

designated this proposal as a ‘‘noncontroversial’’ proposed rule change 

pursuant to Section 19(b)(3)(A) of the 

Act 3 and Rule 19b–4(f)(6)(iii) 

thereunder,4 which renders it effective 

upon filing with the Commission. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange is proposing to amend 

BATS Rule 19.5, entitled ‘‘Minimum 

Participation Requirement for Opening 

Trading of Option Series.’’ The text of 

the proposed rule change is available at 

the Exchange’s Web site at http:// 

www.batstrading.com, at the principal 

office of the Exchange, and at the 

Commission’s Public Reference Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

Exchange included statements 

concerning the purpose of and basis for 

the proposed rule change and discussed 

any comments it received on the 

proposed rule change. The text of these 

statements may be examined at the 

places specified in Item IV below. The 

Exchange has prepared summaries, set 

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

the most significant aspects of such 

statements. 


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