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Notice

Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of BATS Exchange, Inc.

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Start Preamble June 26, 2015.

Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),[1] and Rule 19b-4 thereunder,[2] notice is hereby given that on June 19, 2015, 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 the proposed rule change as one establishing or changing a member due, fee, or other charge imposed by the Exchange under section 19(b)(3)(A)(ii) of the Act [3] and Rule 19b-4(f)(2) thereunder,[4] which renders the proposed rule change 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 filed a proposal to amend its fee schedule applicable to its equity options platform to: (i) Establish fees for the Multicast PITCH market data feed; and (ii) add definitions for terms that apply to market data fees.

The text of the proposed rule change is available at the Exchange's Web site at 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 parts 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 its fee schedule applicable to its equity options platform to: (i) Establish fees for the Multicast PITCH market data feed; and (ii) add definitions for terms that apply to market data fees.

Definitions Applicable to Market Data Fees

The Exchange proposes to include in its fee schedule the following defined terms that relate to the Exchange's Start Printed Page 38248market data fees. The proposed definitions are designed to provide greater transparency with regard to how the Exchange assesses fees for market data.

First, the Exchange proposes to define a “Distributor” as “any entity that receives an Exchange Market Data product directly from the Exchange or indirectly through another entity and then distributes it internally or externally to a third party.” [5] In turn, an Internal Distributor and External Distributor will be separately defined. An Internal Distributor will be defined as a “Distributor that receives the Exchange Market Data product and then distributes that data to one or more Users within the Distributor's own entity.” [6] An External Distributor will be defined as a “Distributor that receives the Exchange Market Data product and then distributes that data to a third party or one or more Users outside the Distributor's own entity.” [7]

Secondly, the Exchange proposes to add a definition of “User” to its fee schedule. A User will be defined as a “natural person, a proprietorship, corporation, partnership, or entity, or device (computer or other automated service), that is entitled to receive Exchange data.” For purposes of its market data fees, the Exchange will distinguish between “Non-Professional Users” and “Professional Users.” Specifically, a Non-Professional User will be defined as “a natural person who is not: (i) Registered or qualified in any capacity with the Commission, the Commodity Futures Trading Commission, any state securities agency, any securities exchange or association; any commodities or futures contract market or association; (ii) engaged as an “investment adviser” as that term is defined in section 202(a)(11) of the Investment Advisers Act of 1940 (whether or not registered or qualified under that Act); or (iii) employed by a bank or other organization exempt from registration under federal or state securities laws to perform functions that will require registration or qualification if such functions were performed for an organization not so exempt.” [8] A Professional User will be defined as “any User other than a Non-Professional User.” [9]

Multicast PITCH Fees

Multicast PITCH is a market data feed that includes depth of book quotations and execution information based on options orders traded on the Exchange.[10] Currently, the Exchange does not charge any fees for receipt of Multicast PITCH. The Exchange now proposes to amend its fee schedule to incorporate fees related to Multicast PITCH. These fees include the following, each of which are described in detail below: (i) A Distribution Fee; (ii) Usage Fees for both Professional and Non-Professional Users; and (iii) an Enterprise Fee.

Distribution Fee. As proposed, each Distributor that receives Multicast PITCH shall pay a fee of $1,500 per month. The proposed Distribution Fee would apply equally to both Internal Distributors and External Distributors.

User Fees. The Exchange proposes to charge those who receive Multicast PITCH from either an Internal or External Distributor different fees for both their Professional Users and Non-Professional Users. The Exchange will assess a monthly fee for Professional Users of $30.00 per User. Non-Professional Users will be assessed a monthly fee of $1.00 per User.

Both Internal and External Distributors would be required to count every Professional User and Non-Professional User to which they provide Multicast PITCH, the requirements for which are similar to that currently in place for the BATS One Feed.[11] Thus, the Distributor's count will include every person and device that accesses the data regardless of the purpose for which the individual or device uses the data. Distributors must report all Professional and Non-Professional Users in accordance with the following:

  • In connection with a Distributor's distribution of Multicast PITCH, the Distributor should count as one User each unique User that the Distributor has entitled to have access to Multicast PITCH. However, where a device is dedicated specifically to a single individual, the Distributor should count only the individual and need not count the device.
  • The Distributor should identify and report each unique User. If a User uses the same unique method to gain access to Multicast PITCH, the Distributor should count that as one User. However, if a unique User uses multiple methods to gain access to Multicast PITCH (e.g., a single User has multiple passwords and user identifications), the Distributor should report all of those methods as an individual User.
  • Distributors should report each unique individual person who receives access through multiple devices as one User so long as each device is dedicated specifically to that individual.
  • If a Distributor entitles one or more individuals to use the same device, the Distributor should include only the individuals, and not the device, in the count.

Enterprise Fee. The Exchange also proposes to establish a $3,500 per month Enterprise Fee that will permit a recipient firm who receives Multicast PITCH from a Distributor to receive the data for an unlimited number of Professional and Non-Professional Users. For example, if a recipient firm had 500 Professional Users who each receive Multicast PITCH at $30.00 per month, then that recipient firm will pay $15,000 per month in Professional Users fees. Under the proposed Enterprise Fee, the recipient firm will pay a flat fee of $3,500 per month for an unlimited number of Professional and Non-Professional Users for Multicast PITCH. A recipient firm must pay a separate Enterprise Fee for each Distributor that controls display of Multicast PITCH if it wishes such User to be covered by an Enterprise Fee rather than by per User fees. A recipient firm that pays the Enterprise Fee will not have to report its Start Printed Page 38249number of Users on a monthly basis. However, every six months, a recipient firm must provide the Exchange with a count of the total number of natural person users of each product, including both Professional and Non-Professional Users.

Implementation Date

The Exchange proposes to implement these amendments to its fee schedule on July 1, 2015.

2. Statutory Basis

The Exchange believes that the proposed rule change is consistent with the objectives of section 6 of the Act,[12] in general, and furthers the objectives of section 6(b)(4),[13] in particular, as it is designed to provide for the equitable allocation of reasonable dues, fees and other charges among its members and other recipients of Exchange data. The Exchange believes that the proposed rates are equitable and non-discriminatory in that they apply uniformly to all recipients of Exchange data. The Exchange believes the proposed fees are competitive with those charged by other venues and, therefore, reasonable and equitably allocated to recipients. Lastly, the Exchange also believes that the proposed fees are reasonable and non-discriminatory because they will apply uniformly to all recipients.

The Exchange also believes that the proposed rule change is consistent with section 11(A) of the Act [14] in that it supports (i) fair competition among brokers and dealers, among exchange markets, and between exchange markets and markets other than exchange markets and (ii) the availability to brokers, dealers, and investors of information with respect to quotations for and transactions in securities. Furthermore, the proposed rule change is consistent with Rule 603 of Regulation NMS,[15] which provides that any national securities exchange that distributes information with respect to quotations for or transactions in an NMS stock do so on terms that are not unreasonably discriminatory. In adopting Regulation NMS, the Commission granted self-regulatory organizations and broker-dealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data.

In addition, the proposed fees would not permit unfair discrimination because all of the Exchange's customers and market data vendors will be subject to the proposed fees on an equivalent basis. Multicast PITCH is distributed and purchased on a voluntary basis, in that neither the Exchange nor market data distributors are required by any rule or regulation to make this data available. Accordingly, Distributors and Users can discontinue use at any time and for any reason, including due to an assessment of the reasonableness of fees charged. Firms have a wide variety of alternative market data products from which to choose, such as similar proprietary data products offered by other exchanges and consolidated data. Moreover, the Exchange is not required to make any proprietary data products available or to offer any specific pricing alternatives to any customers.

In addition, the fees that are the subject of this rule filing are constrained by competition. As explained below in the Exchange's Statement on Burden on Competition, the existence of alternatives to Multicast PITCH further ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect such alternatives. That is, the Exchange competes with other exchanges (and their affiliates) that provide similar market data products. If another exchange (or its affiliate) were to charge less to consolidate and distribute its similar product than the Exchange charges to consolidate and distribute Multicast PITCH, prospective Users likely would not subscribe to, or would cease subscribing to, the Multicast PITCH.

The Exchange notes that the Commission is not required to undertake a cost-of-service or rate-making approach. The Exchange believes that, even if it were possible as a matter of economic theory, cost-based pricing for non-core market data would be so complicated that it could not be done practically.[16]

User Fees. The Exchange believes that implementing the Professional and Non-Professional User fees for Multicast PITCH is equitable and reasonable because it will result in greater availability to Professional and Non-Professional Users. Moreover, introducing a modest Non-Professional User fee for Multicast PITCH is reasonable because it provides an additional method for retail investors to access Multicast PITCH data by providing the same data that is available to Professional Users. The Exchange believes that the proposed fees are equitable and not unfairly discriminatory because they will be charged uniformly to recipient firms and Users. The fee structure of differentiated Professional and Non-Professional fees is utilized for by the Exchange for the BATS One Feed and has long been used by other exchanges for their proprietary data products, and by the Nasdaq UTP and the CTA and CQ Plans in order to reduce the price of data to retail investors and make it more broadly available.[17] Offering Multicast PITCH to Non-Professional Users with the same data available to Professional Users results in greater equity among data recipients.

In addition, the proposed fees are reasonable when compared to similar fees for comparable products offered by the NYSE Arca, Inc. (“NYSE Arca”). Specifically, NYSE Arca offers NYSE ArcaBook for Arca Options—Depth of Book, which includes depth of book information for options traded on NYSE Arca, for a monthly fee of $50.00 per professional subscriber and $1.00 per Start Printed Page 38250non-professional subscriber.[18] The Exchange's proposed per User Fees for Multicast PITCH is less than or equal to the NYSE Arca's fees for NYSE ArcaBook for Arca Options—Depth of Book.

Enterprise Fee. The proposed Enterprise Fee for Multicast PITCH is equitable and reasonable as the fees proposed are less than the enterprise fees currently charged for NYSE ArcaBook for Arca Options—Depth of Book. NYSE Arca provides a fee cap $5,000 per month for NYSE ArcaBook for Arca Options—Depth of Book for non-professional user only,[19] while the Exchange is proposing a monthly Enterprise Fee of $3,500 per month for both Professional and Non-Professional Users. In addition, the Enterprise Fee proposed by the Exchange could result in a fee reduction for recipient firms with a large number of Professional and Non-Professional Users. If a recipient firm has a smaller number of Professional Users of the Multicast PITCH, then it may continue using the per User structure and benefit from the per User Fee reductions. By reducing prices for recipient firms with a large number of Professional and Non-Professional Users, the Exchange believes that more firms may choose to receive and to distribute the Multicast PITCH, thereby expanding the distribution of this market data for the benefit of investors.

The Exchange further believes that the proposed Enterprise Fee is reasonable because it will simplify reporting for certain recipients that have large numbers of Professional and Non-Professional Users. Firms that pay the proposed Enterprise Fee will not have to report the number of Users on a monthly basis as they currently do, but rather will only have to count natural person users every six months, which is a significant reduction in administrative burden. Finally, the Exchange believes that it is equitable and not unfairly discriminatory to establish an Enterprise Fee because it reduces the Exchange's costs and the Distributor's administrative burdens in tracking and auditing large numbers of Users.

Distributor Fee. The Exchange believes that the proposed Distributor Fees are also reasonable, equitably allocated, and not unreasonably discriminatory. The fees for Members and non-Members are uniform except with respect to reasonable distinctions between internal and external distribution.[20] The Exchange believes that the Distributor Fees for Multicast PITCH are reasonable and fair in light of alternatives offered by other market centers. For example, NYSE Arca charges an internal distribution fee of $3,000 per month and an external distribution fee of $2,000 per month for NYSE ArcaBook for Arca Options—Depth of Book,[21] while the Exchange is proposing a monthly Distribution Fee of $1,500 per month for both Internal and External Distribution.

Definitions Applicable to Market Data Fees

The Exchange believes that the proposed definitions are consistent with section 6(b) of the Act,[22] in general, and section 6(b)(4) of the Act,[23] in particular, in that it provides for an equitable allocation of reasonable fees among recipients of the data and is not designed to permit unfair discrimination among customers, brokers, or dealers. The Exchange believes that the proposed definitions are reasonable because they are designed to provide greater transparency with regard to how the Exchange assesses fees for market data. The Exchange believes that recipients of Exchange data would benefit from clear guidance in its fee schedule that describes the manner in which the Exchange would assess fees. These definitions are intended to make the fee schedule clearer and less confusing for investors, thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system, and, in general, protecting investors and the public interest. Lastly, the proposed definitions are based on existing definitions in fee schedules of the BATS Exchanges.[24]

B. Self-Regulatory Organization's Statement on Burden on Competition

The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.

Multicast PITCH Fees

The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. The Exchange's ability to price Multicast PITCH is constrained by: (i) Competition among exchanges, other trading platforms, and Trade Reporting Facilities (“TRF”) that compete with each other in a variety of dimensions; (ii) the existence of inexpensive real-time consolidated data and market-specific data and free delayed data; and (iii) the inherent contestability of the market for proprietary data.

The Exchange and its market data products are subject to significant competitive forces and the proposed fees represent responses to that competition. To start, the Exchange competes intensely for order flow. It competes with the other national securities exchanges that currently trade equities, with electronic communication networks, with quotes posted in FINRA's Alternative Display Facility, with alternative trading systems, and with securities firms that primarily trade as principal with their customer order flow.

In addition, Multicast PITCH competes with a number of alternative products. For instance, Multicast PITCH does not provide a complete picture of all trading activity in a security. Rather, the other national securities exchanges, the Options Price Reporting Authority

(“OPRA”), the several TRFs, and Electronic Communication Networks (“ECN”) that produce proprietary data all produce trades and trade reports. Each is currently permitted to produce similar data products, and many currently do, including the Nasdaq Stock Market LLC (“Nasdaq”) and the New York Stock Exchange, Inc. (“NYSE”).

In sum, the availability of a variety of alternative sources of information imposes significant competitive pressures on Exchange data products and the Exchange's compelling need to attract order flow imposes significant competitive pressure on the Exchange to act equitably, fairly, and reasonably in setting the proposed data product fees. The proposed data product fees are, in part, responses to that pressure. The Start Printed Page 38251Exchange believes that the proposed fees would reflect an equitable allocation of its overall costs to users of its facilities.

In addition, when establishing the proposed fees, the Exchange considered the competitiveness of the market for proprietary data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all Users. The existence of alternatives to Multicast PITCH, including existing similar feeds by other exchanges, consolidated data, and proprietary data from other sources, ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect these alternatives or choose not to purchase a specific proprietary data product if its cost to purchase is not justified by the returns any particular vendor or subscriber would achieve through the purchase.

Definitions Applicable to Market Data Fees

The proposed definitions applicable to market data fees will not result in any burden on competition. The proposed definitions are not designed to amend any fee, nor alter the manner in which it assesses fees. The Exchange believes that recipients of Exchange data would benefit from clear guidance in its fee schedule that describes the manner in which the Exchange would assess fees for market data. These definitions are intended to make the Fee Schedule clearer and less confusing for investors and are not designed to have a competitive impact.

C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others

The Exchange has neither solicited nor received written comments on the proposed rule change.

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

The foregoing rule change has become effective pursuant to section 19(b)(3)(A) of the Act [25] and paragraph (f)(2) of Rule 19b-4 thereunder.[26] At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.

IV. Solicitation of Comments

Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:

Electronic Comments

Paper Comments

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

All submissions should refer to File Number SR-BATS-2015-46. 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 Web site (http://www.sec.gov/​rules/​sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-BATS-2015-46 and should be submitted on or before July 23, 2015.

Start Signature

For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.27

Robert W. Errett,

Deputy Secretary.

End Signature End Preamble

Footnotes

3.  15 U.S.C. 78s(b)(3)(A)(ii).

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5.  The proposed definition of “Distributor” is based on the definition of Distributor in fee schedules of the BATS Exchange, Inc. (“BATS Equities”), the BATS Y-Exchange, Inc. (“BYX”), the EDGX Exchange, Inc. (“EDGX”), and the EDGA Exchange, Inc. (“EDGA” together with BATS Equities, BYX, and EDGX, the “BATS Exchanges”). See the BATS Equities fee schedule available at http://batstrading.com/​support/​fee_​schedule/​bzx/​, BYX fee schedule available at http://batstrading.com/​support/​fee_​schedule/​byx/​, EDGX fee schedule available at http://batstrading.com/​support/​fee_​schedule/​edgx/​, and EDGA fee schedule available at http://batstrading.com/​support/​fee_​schedule/​edga/​ (collectively, the “BATS Exchange Fee Schedules”).

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6.  The proposed definition of “Internal Distributor” is similar to the definition of Internal Distributor in fee schedules of the BATS Exchanges. Id.

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7.  The proposed definition of “External Distributor” is similar to the definition of External Distributor in fee schedules of the BATS Exchanges. Id.

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8.  The proposed definition of “Professional User” is similar to the definition of Professional User in fee schedules of the BATS Exchanges. Id.

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9.  The proposed definition of “Non-Professional User” is similar to the definition of Professional User in fee schedules of the BATS Exchanges. See BATS Exchange Fee Schedules, supra note 6.

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10.  See Exchange Rule 21.15(a).

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11.  See Securities Exchange Act Release Nos. 74285 (February 18, 2015), 80 FR 9828 (February 24, 2015) (SR-BATS-2015-11); 74283 (February 18, 2015), 80 FR 9809 (February 24, 2015) (SR-EDGA-2015-09); 74282 (February 17, 2015), 80 FR 9487 (February 23, 2015) (SR-EDGX-2015-09); and 74284 (February 18, 2015), 80 FR 9792 (February 24, 2015) (SR-BYX-2015-09) (“Initial BATS One Feed Fee Filings”). The only difference is that the counting requirements proposed herein would require the counting of Users receiving Multicast PITCH through both internal and external distribution. Because Usage Fees are solely charged to recipient firms who's Users receive the BATS One Feed from an External Distributor and not through internal distribution, the BATS One Feed counting requirements only require the counting of Users by Distributors that disseminate the BATS One Feed externally.

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16.  The Exchange believes that cost-based pricing would be impractical because it would create enormous administrative burdens for all parties, including the Commission, to cost-regulate a large number of participants and standardize and analyze extraordinary amounts of information, accounts, and reports. In addition, it is impossible to regulate market data prices in isolation from prices charged by markets for other services that are joint products. Cost-based rate regulation would also lead to litigation and may distort incentives, including those to minimize costs and to innovate, leading to further waste. Under cost-based pricing, the Commission would be burdened with determining a fair rate of return, and the industry could experience frequent rate increases based on escalating expense levels. Even in industries historically subject to utility regulation, cost-based ratemaking has been discredited. As such, the Exchange believes that cost-based ratemaking would be inappropriate for proprietary market data and inconsistent with Congress's direction that the Commission use its authority to foster the development of the national market system, and that market forces will continue to provide appropriate pricing discipline. See Appendix C to NYSE's comments to the Commission's 2000 Concept Release on the Regulation of Market Information Fees and Revenues, which can be found on the Commission's Web site at http://www.sec.gov/​rules/​concept/​s72899/​buck1.htm. See also Securities Exchange Act Release No. 73816 (December 11, 2014), 79 FR 75200 (December 17, 2014) (SR-NYSE-2014-64) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Establish an Access Fee for the NYSE Best Quote and Trades Data Feed, Operative December 1, 2014).

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17.  See the Initial BATS One Feed Fee Filings, supra note 12. See also, e.g., Securities Exchange Act Release No. 20002, File No. S7-433 (July 22, 1983) (establishing nonprofessional fees for CTA data); Nasdaq Rules 7023(b), 7047.

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18.  See NYSE Market Data Pricing dated May 2015 available at http://www.nyxdata.com/​.

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20.  The Exchange notes that distinctions based on external versus internal distribution have been previously filed with the Commission by Nasdaq, Nasdaq OMX BX, and Nasdaq OMX PSX. See BATS Exchange Fee Schedules, supra note 6. See also Nasdaq Rule 019(b); Securities Exchange Act Release No. 62876 (September 9, 2010), 75 FR 56624 (September 16, 2010) (SR-PHLX-2010-120); Securities Exchange Act Release No. 62907 (September 14, 2010), 75 FR 57314 (September 20, 2010) (SR-NASDAQ-2010-110); Securities Exchange Act Release No. 63442 (December 6, 2010), 75 FR 77029 (December 10, 2010) (SR-BX-2010-081).

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21.  See NYSE Market Data Pricing dated May 2015 available at http://www.nyxdata.com/​.

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24.  See BATS Exchange Fee Schedules, supra note 6.

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[FR Doc. 2015-16271 Filed 7-1-15; 8:45 am]

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