8011-01P
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100229; File No. SR-NYSEAMER-2024-31]
Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate
Effectiveness of Proposed Change to Establish Fees for the NYSE American Aggregated
Lite Data Feed
May 28, 2024
Pursuant to Section 19(b)(1)1 of the Securities Exchange Act of 1934 (the “Act”)2 and
Rule 19b-4 thereunder,3 notice is hereby given that, on May 13, 2024, NYSE American LLC
(“NYSE American” or the “Exchange”) filed with the Securities and Exchange Commission (the
“Commission”) the 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.
I.

Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed
Rule Change
The Exchange proposes to toestablish fees for the NYSE American Aggregated Lite data

feed. The proposed rule change is available on the Exchange’s website at www.nyse.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 self-regulatory organization included statements

concerning the purpose of, and basis for, the proposed rule change and discussed any comments
it received on the proposed rule change. The text of those statements may be examined at the
places specified in Item IV below. The Exchange has prepared summaries, set forth in sections
A, B, and C below, of the most significant parts of such statements.

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

15 U.S.C. 78a.

17 CFR 240.19b-4.

A.

Self-Regulatory Organization’s Statement of the Purpose of, and the Statutory
Basis for, the Proposed Rule Change
1.

Purpose

The Exchange proposes to amend the NYSE American LLC Equities Proprietary Market
Data Fees Schedule (“Fee Schedule”) and establish fees for the NYSE American Aggregated
Lite (“NYSE American Agg Lite”) data feed that would be effective May 13, 2024.4
In summary, the NYSE American Agg Lite is a NYSE American-only frequency-based
depth of book market data feed of the NYSE American’s limit order book for up to ten (10) price
levels on both the bid and offer sides of the order book for securities traded on the Exchange and
for which the Exchange reports quotes and trades under the Consolidated Tape Association
(‘‘CTA’’) Plan or the Nasdaq/UTP Plan. The NYSE American Agg Lite is a compilation of
limit order data that the Exchange provides to vendors and subscribers. The NYSE American
Agg Lite includes depth of book order data as well as security status messages. The security
status message informs subscribers of changes in the status of a specific security, such as trading
halts, short sale restriction, etc. In addition, the NYSE American Agg Lite includes order
imbalance information prior to the opening and closing of trading.
Background
The Exchange operates in a highly competitive market. The Commission has repeatedly
expressed its preference for competition over regulatory intervention in determining prices,
products, and services in the securities markets. In Regulation NMS, the Commission
highlighted the importance of market forces in determining prices and SRO revenues and, also,
recognized that current regulation of the market system “has been remarkably successful in

The proposed rule change establishing the NYSE American Agg Lite data feed was immediately effective
on February 27, 2024. See Securities Exchange Act Release No. 99690 (March 7, 2024), 89 FR 18445
(March 13, 2024) (SR-NYSEAMER-2024-14) (Notice of Filing and Immediate Effectiveness of Proposed
Rule Change To Establish the NYSE American Aggregated Lite Market Data Feed).

promoting market competition in its broader forms that are most important to investors and listed
companies.”5
While Regulation NMS has enhanced competition, it has also fostered a “fragmented”
market structure where trading in a single stock can occur across multiple trading centers. When
multiple trading centers compete for order flow in the same stock, the Commission has
recognized that “such competition can lead to the fragmentation of order flow in that stock.”6
Indeed, cash equity trading is currently dispersed across 16 exchanges,7 numerous alternative
trading systems,8 and broker-dealer internalizers and wholesalers, all competing for order flow.
Based on publicly-available information, no single exchange currently has more than 20%
market share (whether including or excluding auction volume).9
Proposed NYSE American Agg Lite Data Feed Fees
To reflect the value of NYSE American’s market data, the Exchange proposes to
establish the fees listed below for the NYSE American Agg Lite data feed, operative on May 13,
2024. The Exchange proposes to charge fees for the same categories of market data use as its
affiliated exchanges (namely, NYSE, NYSE Arca and NYSE National) currently charge. The
Exchange believes that adopting the same fee structure as its affiliated exchanges would reduce
administrative burdens on market data subscribers that also currently subscribe to market data
feeds from the Exchange’s affiliates.

See Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) (File
No. S7-10-04) (Final Rule) (“Regulation NMS”).

See Securities Exchange Act Release No. 61358, 75 FR 3594, 3597 (January 21, 2010) (File No. S7-02-10)
(Concept Release on Equity Market Structure).

See Cboe U.S Equities Market Volume Summary, available at
https://markets.cboe.com/us/equities/market_share. See generally
https://www.sec.gov/fastanswers/divisionsmarketregmrexchangesshtml.html.

See FINRA ATS Transparency Data, available at
https://otctransparency.finra.org/otctransparency/AtsIssueData. A list of alternative trading systems
registered with the Commission is available at https://www.sec.gov/foia/docs/atslist.htm.

See Cboe Global Markets, U.S. Equities Market Volume Summary, available at
http://markets.cboe.com/us/equities/market_share/.

1.

Access Fee. For the receipt of access to the NYSE American Agg Lite data feed,

the Exchange proposes to charge $500 per month. This proposed Access Fee would be charged
to any data recipient that receives the NYSE American Agg Lite data feed. Data recipients that
only use display devices to view NYSE American Agg Lite market data and do not separately
receive a data feed would not be charged an Access Fee. The proposed Access Fee would be
charged only once per firm.
2.

User Fees. The Exchange proposes to charge a Professional User Fee (Per User)

of $1 per month. The Exchange does not propose a fee for Non-Professional Users. The
Professional User Fee would apply to each display device that has access to the NYSE American
Agg Lite data feed.
3.

Redistribution Fee. For redistribution of the NYSE American Agg Lite data feed,

the Exchange proposes to establish a fee of $250 per month. The proposed Redistribution Fee
would be charged to any Redistributor of the NYSE American Agg Lite data feed, which is
defined to mean a vendor or any person that provides a real-time NYSE American market data
product externally to a data recipient that is not its affiliate or wholly-owned subsidiary, or to any
system that an external data recipient uses, irrespective of the means of transmission or access.
The proposed Redistribution Fee would be charged only once per Redistributor account. As an
incentive to potential Redistributors to subscribe to the NYSE American Agg Lite data feed, the
Exchange proposes to waive the Access Fee and Redistribution Fee for a Redistributor if the
Redistributor provides NYSE American Agg Lite externally to at least one data feed recipient
and reports such data feed recipient or recipients to the Exchange. For example, a Redistributor
that subscribes to the NYSE American Agg Lite data feed will have the Access Fee and
Redistribution Fee waived if such Redistributor provides NYSE American Agg Lite externally to
at least one data feed recipient and reports such data feed recipient to the Exchange.
By targeting this proposed fee waiver to Redistributors that provide external distribution
of NYSE American Agg Lite, the Exchange believes that this would provide an incentive for

Redistributors to make the NYSE American Agg Lite market data product available to its
customers. Specifically, if a data recipient is interested in subscribing to NYSE American Agg
Lite and relies on a Redistributor to obtain market data products from the Exchange, that data
recipient would need its Redistributor to subscribe to and redistribute NYSE American Agg Lite.
The Exchange believes that this proposed fee waiver for Redistributors of NYSE American Agg
Lite would provide an incentive for Redistributors to make NYSE American Agg Lite available
to their customers, which will increase the availability of the Exchange’s market data products to
a larger potential population of data recipients.
Further, the Exchange proposes to adopt a credit that would be applicable to
Redistributors that provide external distribution of NYSE American Agg Lite to Professional and
Non-Professional Users. As proposed, such Redistributors would receive a credit equal to the
amount of the monthly Professional User and Non-Professional User Fees for such external
distribution, up to a maximum of the combination of the Access Fee and Redistribution Fee for
NYSE American Agg Lite that the Redistributor would otherwise be required to pay to the
Exchange. For example, a Redistributor that reports external Professional Users in a month
totaling $750 or more would receive a maximum credit of $750 for that month, which could
effectively reduce its monthly fee for access and redistribution to zero. If that same Redistributor
were to report external User quantities in a month totaling $600 of monthly usage, that
Redistributor would receive a credit of $600. The Exchange believes the proposed credit would
provide Redistributors with an incentive to increase their redistribution of NYSE American Agg
Lite because the credit they would be eligible to receive would increase if they report additional
external User quantities.
4.

Enterprise Fees.

The Exchange proposes to establish an enterprise license that will reduce Exchange fees
and administrative costs for subscribers that disseminate NYSE American Agg Lite. Subscribers
that are broker-dealers will be able to distribute the NYSE American Agg Lite data feed for

display usage to an unlimited number of recipients (professional users and non-professional
users) for a monthly fee of $550, with an opportunity to lower that fee to $500 per month if they
contract for twelve months of service in advance.
As proposed, the NYSE American Agg Lite data feed may be distributed pursuant to the
proposed market data enterprise license only for display usage and in the context of a brokerage
relationship with a broker-dealer through such broker-dealer's own devices. Purchase of an
enterprise license would eliminate per User subscriber fees for NYSE American Agg Lite.
Further, the Exchange proposes to waive the Access Fee and the Redistribution Fee for NYSE
American Agg lite for Redistributors that pay the Professional and Non-Professional Enterprise
Fee. The Exchange believes the proposed fee waiver would provide an incentive for
Redistributors to subscribe to the NYSE American Agg Lite market data product at the enterprise
level to reduce the fees it would pay to the Exchange and without having to report the number of
users that receive the data feed from the Redistributor.
Subscribers that intend to purchase a market data enterprise license for at least twelve
months may elect to purchase this product in advance for a monthly fee of $500 per month for
distribution to an unlimited number of professional users and non-professional users. This
feature is intended to simplify cost projections and budgeting for both subscribers and the
Exchange. Subscribers that elect not to purchase this particular feature will nevertheless be able
to obtain all of the market data information offered by NYSE American Agg Lite by paying the
standard fee of $550 per month for distribution to an unlimited number of professional users and
non-professional users. Subscribers that elect to pay the monthly fee will be able to switch to the
annual fee at any time, and those that elect to purchase the annual contract would be able to
change to the monthly contract, with notice, at the end of the twelve-month period.
The Exchange believes that the proposed market data enterprise license will reduce
exchange fees, lower administrative costs for subscribers, and help expand the availability of
market information to investors, and thereby increase participation in financial markets.

5.

Non-Display Use Fees.

The Exchange proposes to establish non-display fees for the NYSE American Agg Lite
data feed that are based on the non-display use categories charged by NYSE, NYSE Arca, NYSE
National, the CTA, and the UTP Plan for non-display use.10 Non-display use would mean
accessing, processing, or consuming the NYSE American Agg Lite data feed delivered directly
or through a Redistributor, for a purpose other than in support of a data recipient’s display or
further internal or external redistribution (“Non-Display Use”). Non-Display Use would include
trading uses such as high frequency or algorithmic trading as well as any trading in any asset
class, automated order or quote generation and/or order pegging, price referencing for
algorithmic trading or smart order routing, operations control programs, investment analysis,
order verification, surveillance programs, risk management, compliance, and portfolio
management.
Under the proposal, for Non-Display Use of NYSE American Agg Lite, there would be
three categories of, and fees applicable, to, data recipients. One, two, or three categories of NonDisplay Use may apply to a data recipient.
•

As proposed, the Category 1 Fee would be $1,000 per month and would apply
when a data recipient’s Non-Display Use of the NYSE American Agg Lite data
feed is on its own behalf, not on behalf of its clients.

See Endnote 1 to the NYSE Proprietary Market Data Fees, available here:
https://www.nyse.com/publicdocs/nyse/data/NYSE_Market_Data_Fee_Schedule.pdf; Endnote 1 to the
NYSE Arca Equities Proprietary Market Data Fees, available here:
https://www.nyse.com/publicdocs/nyse/data/NYSE_Arca_Equities_Proprietary_Data_Fee_Schedule.pdf;
Endnote 1 to the NYSE National Equities Proprietary Market Data Fees, available here:
https://www.nyse.com/publicdocs/nyse/data/NYSE_National_Market_Data_Fee_Schedule.pdf; Endnote 8
to the Schedule of Market Data Charges for the CTA, available here:
https://www.ctaplan.com/publicdocs/ctaplan/notifications/traderupdate/Schedule%20Of%20Market%20Data%20Charges%20-%20January%201,%202015.pdf; and NonDisplay Usage Fees as set forth in the UTP Plan Fee Schedule and Non-Display Policy, available here:
http://utpplan.com/DOC/Datapolicies.pdf. See, e.g., Securities Exchange Act Release Nos. 69285 (April 3,
2013), 78 FR 21172 (April 9, 2013) (SR-NYSEMKT-2013-32) and 72020 (September 9, 2014), 79 FR
55040 (September 15, 2014) (SR-NYSEMKT-2014-72).

•

As proposed, Category 2 Fees would be $1,000 per month and would apply to a
data recipient’s Non-Display Use of the NYSE American Agg Lite data feed on
behalf of its clients.

•

As proposed, Category 3 Fees would be $1,000 per month and would apply to a
data recipient’s Non-Display Use of the NYSE American Agg Lite data feed for
the purpose of internally matching buy and sell orders within an organization,
including matching customer orders for a data recipient’s own behalf and/or on
behalf of its clients. This category would apply to Non-Display Use in trading
platforms, such as, but not restricted to, alternative trading systems (“ATSs”),
broker crossing networks, broker crossing systems not filed as ATSs, dark pools,
multilateral trading facilities, exchanges and systematic internalization systems.
A data recipient will be charged $1,000 per month for each platform on which it
uses the Non-Display data internally to match buy and sell orders, up to a cap of
$3,000 per month; even if the data recipient uses the NYSE American Agg Lite
data feed for more than three platforms, it will not pay more than $3,000 for such
Category 3 use per month.

The description of the three non-display use categories is set forth in the Fee Schedule in
endnote 1 and that endnote would be referenced in the NYSE American Agg Lite data feed fees
on the Fee Schedule. The text in the endnote would remain unchanged.
Data recipients that receive the NYSE American Agg Lite data feed for Non-Display Use
would be required to complete and submit a Non-Display Use Declaration before they would be
authorized to receive the feed. A firm subject to Category 3 Fees would be required to identify
each platform that uses the NYSE American Agg Lite data feed for a Category 3 Non-Display
Use basis, such as ATSs and broker crossing systems not registered as ATSs, as part of the NonDisplay Use Declaration.

6.

Non-Display Use Declaration Late Fee. Data recipients that receive the NYSE

American Agg Lite data feed for Non-Display Use would be required to complete and submit a
Non-Display Use Declaration before they would be authorized to receive the feed. Beginning in
2025, NYSE American Agg Lite data feed recipients would be required to submit, by January 31
of each year, the Non-Display Use Declaration. The requirement to submit a Non-Display Use
Declaration applies to all real-time NYSE American data feed product recipients. The Exchange
proposes to charge a Non-Display Use Declaration Late Fee of $1,000 per month to any data
recipient that pays an Access Fee for the NYSE American Agg Lite data feed that has failed to
timely complete and submit a Non-Display Use Declaration. Specifically, with respect to the
Non-Display Use Declaration due by January 31 of each year, the Non-Display Use Declaration
Late Fee would apply to data recipients that fail to complete and submit the Non-Display Use
Declaration by the January 31 due date, and would apply beginning February 1 and for each
month thereafter until the data recipient has completed and submitted the annual Non-Display
Use Declaration.
The proposed Non-Display Use Declaration Late Fee applicable to NYSE American Agg
Lite data feed would be set forth in endnote 2 on the Fee Schedule. As proposed, endnote 2
would be amended with the proposed addition of the following new text: “The Non-Display
Declaration Late Fee will apply, beginning in 2025, to NYSE American Aggregated Lite data
recipients that fail to complete and submit the annual Non-Display Use Declaration by the
January 31st due date, and applies beginning February 1st and for each month thereafter until the
data recipient has completed and submitted the annual Non-Display use Declaration.”
In addition, if a data recipient’s use of the NYSE American Agg Lite data feed changes at
any time after the data recipient submits a Non-Display Use Declaration, the data recipient must
inform the Exchange of the change by completing and submitting at the time of the change an
updated declaration reflecting the change of use.

7.

Multiple Data Feed Fee. The Exchange proposes to establish a monthly fee, the

“Multiple Data Feed Fee,” that would apply to data recipients that take a data feed for a market
data product in more than two locations. Data recipients taking the NYSE American Agg Lite
data feed in more than two locations would be charged $200 per additional location per month.
No new reporting would be required.11
8.

Three-Month Fee Waiver. The Exchange currently provides a one-month free

trial to any firm that subscribes to a particular NYSE American market data product for the first
time. Under the current one-month trial, a first-time subscriber is not charged the Access Fee,
Non-Display Fee, any applicable Professional and Non-Professional User Fee and Redistribution
Fee for one calendar month.12 The Exchange now proposes an additional three-month fee waiver
for any Redistributor that subscribes to a particular NYSE American market data product for the
first time for external redistribution. As proposed, a first-time Redistributor would be any firm
that has not previously subscribed to and externally redistributed a particular NYSE American
market data product listed on the Fee Schedule. As proposed, a first-time Redistributor that
subscribes to a particular NYSE American market data product would not be charged the Access
Fee and the Redistribution Fee for that product for three calendar months. Any other fees,
including but not limited to, Non-Display Fee, any applicable Professional and Non-Professional
User Fee, and Enterprise Fee would be billable after the first calendar month after a first-time
Redistributor subscribes to a particular NYSE American market data product. For example, a
first-time Redistributor that chooses to subscribe to NYSE American Agg Lite on June 24, 2024
would not be charged the Access Fee and the Redistribution Fee for the months of July, August,
and September 2024. The proposed fee waiver would be for the three calendar months following

Data vendors currently report a unique Vendor Account Number for each location at which they provide a
data feed to a data recipient. The Exchange considers each Vendor Account Number a location. For
example, if a data recipient has five Vendor Account Numbers, representing five locations, for the receipt
of the NYSE American Agg Lite data feed, that data recipient will pay the Multiple Data Feed fee with
respect to three of the five locations.

See Fee Schedule.

the date a Redistributor is approved to receive access to the particular NYSE American market
data product. The Exchange would provide the three-month fee waiver for each particular
product to each Redistributor once.
The Exchange believes that providing a three-month fee waiver to NYSE American
market data products listed on the Fee Schedule would enable potential Redistributors to
determine whether a particular NYSE American market data product provides value to their
business models before fully committing to expend development and implementation costs
related to the receipt of that product, and is intended to encourage increased use of the
Exchange's market data products by defraying some of the development and implementation
costs Redistributors would ordinarily have to expend before using a product. The proposed threemonth fee waiver would also provide Redistributors with time to begin onboarding new clients
prior to being liable to the Access Fee and the Redistribution Fee, allowing time to choose how
to allocate costs and increase revenues to defray costs associated with providing a new feed to its
customers.
Application of Proposed Fees
The Exchange is not required to make the NYSE American Agg Lite data feed available
or to offer any specific pricing alternatives to any customers, nor is any firm required to purchase
the NYSE American Agg Lite data feed. Firms that choose to purchase the NYSE American
Agg Lite data feed do so for the primary goals of using it to increase their revenues, reduce their
expenses, and in some instances to compete directly with the Exchange (including for order
flow). Those firms are able to determine for themselves whether or not the NYSE American
Agg Lite data feed or any other similar products are attractively priced.
The Exchange believes that subscribers would use the price level detail information
available in the NYSE American Agg Lite data feed to make trading decisions that directly
benefit the transaction services that the Exchange offers. The Exchange determined the level of

the fees to charge for the NYSE American Agg Lite data feed based on the value of the
Exchange’s transaction services.
The Exchange believes the proposed rule change would provide an incentive both for
data subscribers to subscribe to NYSE American Agg Lite and for Redistributors to subscribe to
the product for purposes of providing external distribution of NYSE American Agg Lite. The
Exchange believes that this proposed rule change also has the potential to attract new
Redistributors for NYSE American Agg Lite.
The proposed fee structure is not novel as it is based on the fee structure currently in
place for the NYSE American OpenBook feed. The Exchange is proposing fees for the NYSE
American Agg Lite data feed that are based on the existing fee structure and rates that data
recipients already pay for the NYSE American OpenBook feed. Specifically, the fees for the
NYSE American OpenBook feed—which like the NYSE American Agg Lite data feed, includes
depth of book and security status messages—consist of an Access Fee of $1,000 per month, a
Professional User Fee (Per User) of $5 per month, a Non-Professional User Fee (Per User) of $1
per month, Non-Display Fees of $2,000 per month for each of Categories 1, 2 and 3. The
Exchange does not currently charge a Redistribution Fee for NYSE American OpenBook. The
Exchange also charges a Non-Display Use Declaration Late Fee of $1,000 per month and a
Multiple Data Feed Fee of $200 per month for NYSE American OpenBook.13
2.

Statutory Basis

The Exchange believes that the proposed rule change is consistent with the provisions of
Section 6 of the Act,14 in general, and Sections 6(b)(4) and 6(b)(5) of the Act,15 in particular, in
that it provides an equitable allocation of reasonable fees among users and recipients of the data
and is not designed to permit unfair discrimination among customers, issuers, and brokers.

See NYSE American LLC Equities Proprietary Market Data Fees at
https://www.nyse.com/publicdocs/nyse/data/NYSE_American_Equities_Market_Data_Fee_Schedule.pdf.

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

15 U.S.C. 78f(b)(4), (5).

The Proposed Rule Change Is Reasonable
In adopting Regulation NMS, the Commission granted SROs and broker-dealers
increased authority and flexibility to offer new and unique market data to the public. The
Commission has repeatedly expressed its preference for competition over regulatory intervention
in determining prices, products, and services in the securities markets. Specifically, in
Regulation NMS, the Commission highlighted the importance of market forces in determining
prices and SRO revenues, and also recognized that current regulation of the market system “has
been remarkably successful in promoting market competition in its broader forms that are most
important to investors and listed companies.”16
With respect to market data, the decision of the United States Court of Appeals for the
District of Columbia Circuit in NetCoalition v. SEC upheld the Commission’s reliance on the
existence of competitive market mechanisms to evaluate the reasonableness and fairness of fees
for proprietary market data:
In fact, the legislative history indicates that the Congress intended that the market
system “evolve through the interplay of competitive forces as unnecessary regulatory
restrictions are removed” and that the SEC wield its regulatory power “in those situations
where competition may not be sufficient,” such as in the creation of a “consolidated
transactional reporting system.”17
The court agreed with the Commission’s conclusion that “Congress intended that
‘competitive forces should dictate the services and practices that constitute the U.S. national
market system for trading equity securities.’”18
More recently, the Commission confirmed that it applies a “market-based” test in its
assessment of market data fees, and that under that test:

See Regulation NMS Adopting Release, 70 FR 37495, at 37499.

NetCoalition v. SEC, 615 F.3d 525, 535 (D.C. Cir. 2010) (“NetCoalition I”) (quoting H.R. Rep. No. 94–
229 at 92 (1975), as reprinted in 1975 U.S.C.C.A.N. 323).

Id. at 535.

the Commission considers whether the exchange was subject to significant
competitive forces in setting the terms of its proposal for [market data], including the
level of any fees. If an exchange meets this burden, the Commission will find that its fee
rule is consistent with the Act unless there is a substantial countervailing basis to find that
the terms of the rule violate the Act or the rules thereunder.19
An exchange may demonstrate that its fees are constrained by competitive forces by
showing that platform competition applies.
As the United States Supreme Court recognized in Ohio v. American Express, platforms
are firms that act as intermediaries between two or more sets of agents, and typically the choices
made on one side of the platform affect the results on the other side of the platform via
externalities, or “indirect network effects.”20 Externalities are linkages between the different
sides of a platform such that one cannot understand pricing and competition for goods or services
on one side of the platform in isolation; one must also account for the influence of the other
sides. As the Supreme Court explained:
To ensure sufficient participation, two-sided platforms must be sensitive to the
prices that they charge each side. . . . Raising the price on side A risks losing
participation on that side, which decreases the value of the platform to side B. If the
participants on side B leave due to this loss in value, then the platform has even less value
to side A—risking a feedback loop of declining demand. . . . Two-sided platforms
therefore must take these indirect network effects into account before making a change in
price on either side.21

See Securities Exchange Act Release No. 34-90217 (October 16, 2020), 85 FR 67392 (October 22, 2020)
(SR-NYSENAT-2020-05) (“National IF Approval Order”) (internal quotation marks omitted), quoting
Securities Exchange Act Release No. 59039 (December 2, 2008), 73 FR 74770, 74781 (December 9, 2008).

Ohio v. American Express, 138 S. Ct. 2274, 2280-81 (2018).

Id. at 2281.

The Exchange and its affiliated exchanges have long maintained that they function as
platforms between consumers of market data and consumers of trading services. Proving the
existence of linkages between the two sides of this platform requires an in-depth economic
analysis of both public data and confidential exchange data about particular customers’ trading
activities and market data purchases. Exchanges, however, are prohibited from publicly sharing
details about these specific customer activities and purchases. For example, pursuant to
Exchange Rule 7.41E, transactions executed on the Exchange are processed anonymously.
Exchanges function as platforms for market data and transaction services mean that
exchanges do not set fees for market data products without considering, and being constrained
by, the effect the fees will have on the order-flow side of the platform. As the D.C. Circuit
recognized in NetCoalition I, “[n]o one disputes that competition for order flow is fierce.”22 The
court further noted that “no exchange possesses a monopoly, regulatory or otherwise, in the
execution of order flow from broker dealers,” and that an exchange “must compete vigorously
for order flow to maintain its share of trading volume.”23
As noted above, while Regulation NMS has enhanced competition, it has also fostered a
“fragmented” market structure where trading in a single stock can occur across multiple trading
centers. When multiple trading centers compete for order flow in the same stock, the
Commission has recognized that “such competition can lead to the fragmentation of order flow
in that stock.”24 The Commission’s Division of Trading and Markets has also recognized that
with so many “operating equities exchanges and dozens of ATSs, there is vigorous price
competition among the U.S. equity markets and, as a result, [transaction] fees are tailored and
frequently modified to attract particular types of order flow, some of which is highly fluid and

NetCoalition I, 615 F.3d at 544 (internal quotation omitted).

Id.

See Securities Exchange Act Release No. 61358, 75 3594, 3597 (January 21, 2010) (File No. S7-02-10)
(Concept Release on Equity Market Structure).

price sensitive.”25 Indeed, today, equity trading is currently dispersed across 16 exchanges,26
numerous alternative trading systems,27 broker-dealer internalizers and wholesalers, all
competing for order flow. Based on publicly-available information, no single exchange currently
has more than 20% market share.28
Further, low barriers to entry mean that new exchanges may rapidly and inexpensively
enter the market and offer additional substitute platforms to compete with the Exchange. For
example, since 2020, three new ones have entered the market: Long Term Stock Exchange
(LTSE), which began operations as an exchange on August 28, 2020;29 Members Exchange
(MEMX), which began operations as an exchange on September 29, 2020; 30 and Miami
International Holdings (MIAX), which began operations of its first equities exchange on
September 29, 2020.31
These low barriers enable existing exchange customers to disintermediate and start their
own exchanges if they think the prices charged for exchange proprietary market data products
are too high. This is precisely the rationale behind the creation of MEMX, which was formed by
some of the largest and most well capitalized financial firms that are also Exchange customers

Commission Division of Trading and Markets, Memorandum to EMSAC, dated October 20, 2015,
available here: https://www.sec.gov/spotlight/emsac/memo-maker-taker-fees-on-equities-exchanges.pdf.

See Cboe Global Markets, U.S. Equities Market Volume Summary, available at
http://markets.cboe.com/us/equities/market_share/.

See FINRA ATS Transparency Data, available at
https://otctransparency.finra.org/otctransparency/AtsIssueData. A list of alternative trading systems
registered with the Commission is available at https://www.sec.gov/foia/docs/atslist.htm.

See Cboe Global Markets, U.S. Equities Market Volume Summary, available at
http://markets.cboe.com/us/equities/market_share/.

See LTSE Market Announcement: MA-2020-020, dated August 14, 2020, announcing LTSE production
securities phase-in planned for August 28, available here: https://assets-global.websitefiles.com/6462417e8db99f8baa06952c/6462417e8db99f8baa0698e7_MA-2020020Production_Securities_Launching_August_28_-_Google_Docs.pdf and LTSE Market
Announcement: MA-2020-025, available here: https://assets-global.websitefiles.com/6462417e8db99f8baa06952c/6462417e8db99f8baa069873_MA-2020-025.pdf.

As of October 29, 2020, MEMX is trading all NMS symbols. See https://info.memxtrading.com/traderalert-20-10-memx-trading-symbols-update/.

See MIAX Pearl Press release, dated September 29, 2020, available here:
https://www.miaxoptions.com/sites/default/files/alert-files/MIAX_Press_Release_09292020.pdf.

(including Bank of America, BlackRock, Charles Schwab, Citadel, Citi, E*Trade, Fidelity,
Goldman Sachs, J.P. Morgan, Jane Street, Morgan Stanley, TD Ameritrade, and others).32
For example, one of MEMX’s founding principles is that exchange proprietary market
data prices are too high, and that MEMX will benefit its members by offering “[l]ower pricing
on market data.”33 Nor is this a new phenomenon: exchange customers formed BATS to
compete with incumbent exchanges and once registered as an exchange in 2008, BATS did not
initially charge for market data. The BATS venture was a financial success for its founders, first
through recouping their investment in its initial public offering and then in the subsequent sale of
BATS to Cboe, which now charges for market data from those exchanges. Notably, MEMX has
some of the same founding broker-dealer customers, leading some to dub MEMX “BATS 2.0.”34
The fact that this cycle is viable and repeatable by entities that both trade on and compete
with existing exchanges confirms that barriers to entry are low and that these markets are
competitive and contestable.35 And low barriers to entry act as a market check on high prices.36

MEMX Home Page (“Founded by members and investors, MEMX aims to drive simplicity, efficiency, and
competition in equity markets.”), available at https://memx.com/.

MEMX home page, available at https://memx.com/.

See “MEMX turns up the heat on US stock exchanges,” Financial Times, January 9, 2019, available at
https://www.ft.com/content/4908c8b0-1418-11e9-a581-4ff78404524e; see also “US equities exchanges: If
you can’t beat them, join them,” Euromoney, February 13, 2019, available at
https://www.euromoney.com/article/b1d3tfby4p3y4v/us-equities-exchanges-if-you-cant-beat-them-jointhem.

United States v. SunGard Data Sys., 172 F. Supp. 2d 172, 186 (D.D.C. 2001) (recognizing that “[a]s a
matter of law, courts have generally recognized that when a customer can replace the services of an
external product with an internally-created system, this captive output (i.e. the self-production of all or part
of the relevant product) should be included in the same market.”). In SunGard, the court rejected the
Antitrust Division’s attempt to block SunGuard’s acquisition of the disaster recovery assets of Comdisco
on the basis that the acquisition would “substantially lessen competition in the market for shared hotsite
disaster recovery services,” when the evidence showed that “internal hotsites” created by customers
competed with the “external shared hotsite business” engaged in by the merging parties. Id. at 173-74, 187.

United States v. Baker Hughes, 908 F.2d 981, 987 (1990) (“In the absence of significant barriers [to entry],
a company probably cannot maintain supracompetitive pricing for any length of time.”); see also David S.
Evans and Richard Schmalensee, Markets with Two-Sided Platforms, in 1 ISSUES IN COMPETITION LAW
AND POLICY 667, 685 (ABA Section of Antitrust Law 2008) (noting that exchange mergers in 2005 and
2006 were approved by competition authorities in part in reliance on planned and likely entry of other
firms).

In sum, the fierce competition for order flow thus constrains any exchange from pricing
its market data at a supracompetitive price and constrains the Exchange in setting its fees at issue
here.
The proposed fees are therefore reasonable because in setting them, the Exchange is
constrained by the availability of numerous substitute platforms offering market data products
and trading. Such substitutes need not be identical, but only substantially similar to the product
at hand.
More specifically, in setting fees for the NYSE American Agg Lite data feed, the
Exchange is constrained by the fact that, if its pricing across the platform is unattractive to
customers, customers have their pick of an increasing number of alternative platforms to use
instead of the Exchange. The Exchange believes that it has considered all relevant factors and
has not considered irrelevant factors in order to establish reasonable fees. The existence of
numerous alternative platforms to the Exchange’s platform ensures that the Exchange cannot set
unreasonable market data fees without suffering the negative effects of that decision in the
fiercely competitive market for trading order flow.
Subscribing to the NYSE American Agg Lite is entirely optional. The Exchange is not
required to make the NYSE American Agg Lite available to any customers, nor is any customer
required to purchase the NYSE American Agg Lite market data feed. Unlike some other data
products (e.g., the consolidated quotation and last-sale information feeds) that firms are required
to purchase in order to fulfil regulatory obligations,37 a customer’s decision whether to purchase
the NYSE American Agg Lite is entirely discretionary. Most firms that choose to subscribe to
the NYSE American Agg Lite would do so for the primary goals of using it to increase their

The Exchange notes that broker-dealers are not required to purchase proprietary market data to comply
with their best execution obligations. See In the Matter of the Application of Securities Industry and
Financial Markets Association for Review of Actions Taken by Self-Regulatory Organizations, Release
Nos. 34-72182; AP-3-15350; AP-3-15351 (May 16, 2014). Similarly, there is no requirement in
Regulation NMS or any other rule that proprietary data be utilized for order routing decisions, and some
broker-dealers and ATSs have chosen not to do so.

revenues, reduce their expenses, and in some instances to compete directly with the Exchange for
order flow. Such firms are able to determine for themselves whether the NYSE American Agg
Lite data feed is necessary for their business needs, and if so, whether or not it is attractively
priced. If the NYSE American Agg Lite data feed does not provide sufficient value to firms
based on the uses those firms may have for it, such firms may simply choose to conduct their
business operations in ways that do not use the NYSE American Agg Lite data feed.
Further, in the case of products that are also redistributed through market data vendors
such as Bloomberg and Refinitiv, the vendors themselves provide additional price discipline for
proprietary data products because they control the primary means of access to certain end users.
These vendors impose price discipline based upon their business models. For example, vendors
that assess a surcharge on data they sell are able to refuse to offer proprietary products that their
end users do not or will not purchase in sufficient numbers. Vendors may elect not to make
NYSE American Agg Lite available to its customers unless their customers request it, and
customers will not elect to pay the proposed fees unless NYSE American Agg Lite can provide
value by sufficiently increasing revenues or reducing costs in the customer’s business in a
manner that will offset the fees. All of these factors operate as constraints on pricing proprietary
data products.
In setting the proposed fees for the NYSE American Agg Lite data feed, the Exchange
considered the competitiveness of the market for proprietary data and all of the implications of
that competition.
Even putting aside the facts that exchanges are platforms and that pricing decisions on the
two sides of the platform are intertwined, the Exchange is constrained in setting the proposed
market data fees by the availability of numerous substitute market data products. The

Commission has been clear that substitute products need not be identical, but only substantially
similar to the product at hand.38
The NYSE American Aggregated Lite market data feed is subject to significant
competitive forces that constrain its pricing. Specifically, the NYSE American Agg Lite data
feed competes head-to-head with similar market data products currently offered by the four U.S.
equities exchanges operated by Cboe Exchange, Inc. - Cboe BZX Exchange, Inc. (“BZX”),
Cboe BYX Exchange, Inc. (“BYX”), Cboe EDGA Exchange, Inc. (“EDGA”), and Cboe EDGX
Exchange, Inc. (“EDGX”), each of which offers a market data product called BZX Summary
Depth, BYX Summary Depth, EDGA Summary Depth and EDGX Summary Depth, respectively
(collectively, the “Cboe Summary Depth”).39 Similar to Cboe Summary Depth, NYSE
American Agg Lite can be utilized by vendors and subscribers to quickly access and distribute
aggregated order book data. As noted above, NYSE American Agg Lite, similar to Cboe
Summary Depth, would provide aggregated depth per security, including the bid, ask and share
quantity for orders received by NYSE American, except unlike Cboe Summary Depth, which
provides aggregated depth per security for up to five price levels, NYSE American Agg Lite
would provide aggregated depth per security for up to ten price levels on both the bid and offer
sides of the NYSE American limit order book as well as auction imbalance data.
The specific fees that the Exchange proposes for the NYSE American Agg Lite data feed
are reasonable for the following additional reasons.

For example, in the National IF Approval Order, the Commission recognized that for some customers, the
best bid and offer information from consolidated data feeds may function as a substitute for the NYSE
National Integrated Feed product, which contains order by order information. See National IF Approval
Order, supra note 19, at 67397 [release p. 21] (“[I]nformation provided by NYSE National demonstrates
that a number of executing broker-dealers do not subscribe to the NYSE National Integrated Feed and
executing broker-dealers can otherwise obtain NYSE National best bid and offer information from the
consolidated data feeds.” (internal quotations omitted)).

See BZX Rule 11.22(m) BZX Summary Depth; BYX Rule 11.22(k) BYX Summary Depth; EDGA Rule
13.8(f) EDGA Summary Depth; and EDGX Rule 13.8(f) EDGX Summary Depth. The Cboe Summary
Depth offered by BZX, BYX, EDGA and EDGX are each a data feed that offers aggregated two-sided
quotations for all displayed orders for up to five (5) price levels and contains the individual last sale
information, market status, trading status and trade break messages.

Overall. The Exchange believes that the proposed fees for the NYSE American Agg Lite
data feed are reasonable because they represent the value of the data available but also the value
of receiving the data on an aggregated basis. The Exchange believes that providing vendors and
subscribers with the option to subscribe to a market data product that integrates a subset of data
from existing products and where such aggregated data is published at a pre-defined interval,
thus lowering bandwidth, infrastructure and operational requirements, would allow vendors and
subscribers to choose the best solution for their specific business needs.
The Exchange believes the proposed fees for the NYSE American Agg Lite data feed are
also reasonable when compared to fees for comparable products, such as the Cboe Summary
Depth.40 Additionally, the Exchange is proposing fees for the NYSE American Agg Lite data
feed that are based on the existing fee structure that data recipients already pay for the NYSE
American’s other market data products. The Exchange believes that adopting the same fee
structure would reduce administrative burdens on NYSE American data subscribers that also
currently subscribe to market data feeds from NYSE American.
Access Fee. The Exchange believes that is reasonable to charge access fees because of
the value of the data to data recipients in their profit-generating activities. The Exchange
believes that the proposed monthly Access Fee of $500 for the NYSE American Aggregated Lite
data feed is reasonable because it is lower than the fees charged by BZX, BYX, EDGA, and
EDGX, each of which charges between $2,500 per month to $5,000 per month for both Internal
Distribution and External Distribution of the Cboe Summary Depth market data product.41
User Fees. The Exchange believes that having separate Professional and NonProfessional User fees for the NYSE American Agg Lite data feed is reasonable because it will
make the product more affordable and result in greater availability to Professional and NonProfessional Users. Not charging a Non-Professional User fee is reasonable because it provides

See https://cdn.cboe.com/resources/membership/US_Market_Data_Product_Price_List.pdf.

Id.

a cost-effective method for Non-Professional Users to access the NYSE American Agg Lite data
feed by providing the same data that is available to Professional Users. The proposed monthly
Professional User Fee (Per User) of $1 and monthly Non-Professional User Fee (Per User) of $0
are reasonable because they are comparable to user fees generally charged by exchanges. For
example, NYSE American charges a monthly Professional User Fee (Per User) of $5 and a
monthly Non-Professional User Fee (Per User) of $1 for the NYSE American OpenBook feed.42
Although the proposed User Fees for Professional and Non-Professional Users are higher than
those charged by BZX, BYX, EDGA and EDGX, the Exchange notes that User fees are only a
subset of the total fees that vendors and subscribers pay and the lower fees proposed to access
and redistribute NYSE American Agg Lite would provide such market data recipients with a
more affordable alternative to existing substitutes offered by the Exchange and its competitors.
Redistribution Fees. The Exchange believes that it is reasonable to charge redistribution
fees because vendors receive value from redistributing the data in their business products for
their customers. The Exchange believes that charging a Redistribution Fee is reasonable because
the vendors that would be charged such a fee profit by re-transmitting the Exchange’s market
data to their customers. This fee would be charged only once per month to each vendor account
that redistributes the NYSE American Agg Lite data feed, regardless of the number of customers
to which that vendor redistributes the data. The Exchange believes the proposed monthly
Redistribution Fee of $250 for the NYSE American Agg Lite data feed is reasonable because it is
nominal and lower than the fees charged by BZX, BYX, EDGA and EDGX, each of which
charges considerably more for both Internal Distribution and External Distribution of the Cboe
Summary Depth market data feed.43
Enterprise Fees. The Exchange believes the proposed enterprise license is reasonable
because it would reduce exchange fees, lower administrative costs for subscribers that are

See Fee Schedule.

See supra, note 40.

broker-dealers and help expand the availability of market information to investors, and thereby
increase participation in financial markets. Subscribers that are broker-dealers would be able to
disseminate the NYSE American Agg Lite data feed for display usage to an unlimited number of
professional users and non-professional users for a monthly fee of $550, or $500 if they contract
for twelve months of service in advance. The proposed enterprise license would result in lower
fees for subscribers able to reach the largest audience of investors, including retail investors.
Discounts for broader dissemination of market data information have routinely been adopted by
exchanges and permitted by the Commission as equitable allocations of reasonable dues, fees
and charges.44
Non-Display Use Fees. The Exchange believes the proposed Non-Display Use fees are
reasonable, because they reflect the value of the data to the data recipients in their profitgenerating activities and do not impose the burden of counting non-display devices.
The Exchange believes that the proposed Non-Display Use fees reflect the significant
value of the non-display data use to data recipients, which purchase such data on an entirely
voluntary basis. Non-display data can be used by data recipients for a wide variety of profitgenerating purposes, including proprietary and agency trading and smart order routing, as well as
by data recipients that operate order matching and execution platforms that compete directly with
the Exchange for order flow. The data also can be used for a variety of non-trading purposes that
indirectly support trading, such as risk management and compliance. Although some of these
non-trading uses do not directly generate revenues, they can nonetheless substantially reduce a
recipient’s costs by automating such functions so that they can be carried out in a more efficient
and accurate manner and reduce errors and labor costs, thereby benefiting recipients. The
Exchange believes that charging for non-trading uses is reasonable because data recipients can
derive substantial value from such uses, for example, by automating tasks so that can be

For example, the Commission has permitted pricing discounts for market data under Nasdaq Rules 7023(c)
and 7047(b). See also Securities Exchange Act Release No. 82182 (November 30, 2017), 82 FR 57627
(December 6, 2017) (SR-NYSE-2017-60) (changing an enterprise fee for NYSE BBO and NYSE Trades).

performed more quickly and accurately and less expensively than if they were performed
manually.
Previously, the non-display use data pricing policies of many exchanges required
customers to count, and the exchanges to audit the count of, the number of non-display devices
used by a customer. As non-display use grew more prevalent and varied, however, exchanges
received an increasing number of complaints about the impracticality and administrative burden
associated with that approach. In response, the Exchange and its affiliated exchanges developed
a non-display use pricing structure that does not require non-display devices to be counted or
those counts to be audited, and instead looks merely at the three following categories of potential
use of non-display data: use of the data on the customer’s own behalf (Category 1), use on
behalf of clients (Category 2), and use to internally match buy and sell orders within an
organization (Category 3).
The Exchange believes that it is reasonable to segment the fee for non-display use into
these three categories. As noted above, the uses to which customers can put the NYSE American
Agg Lite data feed are numerous and varied, and the Exchange believes that charging separate
fees for these separate categories of use is reasonable because it reflects the actual value the
customer derives from the data, based upon how many categories of use the customer makes of
the data. Segmenting the fees for non-display data in this way avoids the unreasonable result of
customers that make only limited non-display use of the data paying the same fees as customers
that use the data for numerous different revenue-generating and cost-saving purposes.
The Exchange believes that the proposed fees of $1,000 per month for each of Categories
1, 2, and 3 is reasonable. These fees are comparable to non-display use fees generally charged
by exchanges. For example, the fees for Non-Display Use of NYSE American OpenBook for
Categories 1, 2 and 3 is $2,000 per month.45 The Exchange believes that the proposed fees

See Fee Schedule.

directly and appropriately reflect the significant value of using non-display data in a wide range
of computer-automated functions relating to both trading and non-trading activities and that the
number and range of these functions continue to grow through innovation and technology
developments.
The Exchange also believes that, regarding Category 3 fees, it is reasonable to charge
$1,000 per month for each trading platform on which the data recipient uses the Non-Display
data, because such use of the data is directly in competition with the Exchange and the Exchange
should be permitted to recoup some of its lost trading revenue by charging for the data that
makes such competition possible. The Exchange believes that it is reasonable to cap such fees
for Category 3 use at $3,000 per month per data recipient, because a higher monthly fee may
potentially dissuade competitors from buying the NYSE American Agg Lite data feed for use by
their trading platforms.
The proposed Non-Display Use fees for the NYSE American Agg Lite data feed are also
reasonable because they take into account the extra value of receiving the data for Non-Display
Use on an integrated basis. The Exchange believes that the proposed fees directly and
appropriately reflect the significant value of using the NYSE American Agg Lite data feed on a
non-display basis in a wide range of computer-automated functions relating to both trading and
non-trading activities and that the number and range of these functions continue to grow through
innovation and technology developments.46
Non-Display Use Declaration Late Fee. The Exchange believes that it is reasonable to
require annual submissions of the Non-Display Use Declaration so that the Exchange will have
current and accurate information about the use of the NYSE American Agg Lite data feed and

See also Exchange Act Release No. 69157, March 18, 2013, 78 FR 17946, 17949 (March 25, 2013) (SRCTA/CQ-2013-01) (“[D]ata feeds have become more valuable, as recipients now use them to perform a far
larger array of non-display functions. Some firms even base their business models on the incorporation of
data feeds into black boxes and application programming interfaces that apply trading algorithms to the
data, but that do not require widespread data access by the firm’s employees. As a result, these firms pay
little for data usage beyond access fees, yet their data access and usage is critical to their businesses.”).

can correctly assess fees for the uses of the NYSE American Agg Lite data feed. Requiring
annual submissions of such declarations is reasonable because it also allows users to re-assess
their own usage each year.
The Exchange believes that it is reasonable to impose a late fee in connection with the
submission of the Non-Display Use Declaration. In order to correctly assess fees for the nondisplay use of the NYSE American Agg Lite data feed, the Exchange needs to have current and
accurate information about the use of the NYSE American Agg Lite data feed. The failure of
data recipients to submit the Non-Display Use Declaration on time leads to potentially incorrect
billing and administrative burdens, including tracking and obtaining late Non-Display Use
Declarations and correcting and following up on payments owed in connection with late NonDisplay Use Declarations. The purpose of the late fee is to incent data recipients to submit the
Non-Display Use Declaration promptly to avoid the administrative burdens associated with the
late submission of Non-Display Use Declarations.
Multiple Data Feed Fee. The Exchange believes that it is reasonable to require data
recipients to pay a modest additional fee for taking a data feed for a market data product in more
than two locations, because such data recipients can derive substantial value from being able to
consume the product in as many locations as they want. In addition, there are administrative
burdens associated with tracking each location at which a data recipient receives the product.
The Multiple Data Feed Fee is designed to encourage data recipients to better manage their
requests for additional data feeds and to monitor their usage of data feeds. The proposed fee is
designed to apply to data feeds received in more than two locations so that each data recipient
can have one primary and one backup data location before having to pay a multiple data feed fee.
Three-Month Fee Waiver. The Exchange believes the proposal to waive the Access Fee
and the Redistribution Fee for the NYSE American Agg Lite data feed to new Redistributors for
three calendar months is reasonable because it would enable potential Redistributors to
determine whether a particular NYSE American market data product provides value to their

business models before fully committing to expend development and implementation costs
related to the receipt of that product, and is intended to encourage increased use of the
Exchange’s market data products by defraying some of the development and implementation
costs Redistributors would ordinarily have to expend before using a product. The proposed fee
waiver would also allow Redistributors to become familiar with the feed and determine whether
it suits their needs without incurring fees. Making a new market data product available without
charging a fee for three months is consistent with offerings of other exchanges. For example,
BZX offers subscribers of BZX Summary Depth a three-month credit for external distribution,
which is akin to the three-month fee waiver proposed by the Exchange.47
For all of the foregoing reasons, the Exchange believes that the proposed fees for the
NYSE American Agg Lite data feed are reasonable.
The Proposed Fees Are Equitably Allocated
The Exchange believes the proposed fees for the NYSE American Agg Lite data feed are
allocated fairly and equitably among the various categories of users of the feed, and any
differences among categories of users are justified.
Overall. The Exchange believes that the proposed fees are equitably allocated because
they will apply to all data recipients that choose to subscribe to the NYSE American Agg Lite
data feed. Any subscriber or vendor that chooses to subscribe to the NYSE American Agg Lite
data feed is subject to the same Fee Schedule, regardless of what type of business they operate or
the use they plan to make of the data feed. Subscribers and vendors are not required to purchase
the NYSE American Agg Lite data feed and may choose to receive the data on the NYSE
American Agg Lite data feed regardless of what type of business they operate or the use they
plan to make of the data feed.

See e.g., Securities Exchange Act Release No. 94432 (March 16, 2022), 87 FR 16277 (March 22, 2022)
(SR-CboeBZX–2022–015) (Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To
Amend the Fees Applicable to Various Market Data Products).

Access Fee. The Exchange believes the proposed monthly Access Fee of $500 for the
NYSE American Agg Lite data feed is equitably allocated because it would be charged on an
equal basis to all data recipients that receive a data feed of the NYSE American Agg Lite data
feed, regardless of what type of business they operate or the use they plan to make of the data
feed.
User Fees. The Exchange believes that the fee structure differentiating Professional User
fees ($1 per month per user) from Non-Professional User fees ($0 per month per user) for display
device access to the NYSE American Agg Lite data feed is equitable. This structure has long
been used by the Exchange to reduce the price of data to Non-Professional Users and make it
more broadly available.48 Offering the NYSE American Agg Lite data feed to Non-Professional
Users with the same data as is available to Professional Users results in greater equity among
data recipients. These user fees would be charged uniformly to all display devices that have
access to the NYSE American Agg Lite data feed.
Redistribution Fees. The Exchange believes the proposed monthly fee of $250 for
redistributing the NYSE American Agg Lite data feed is equitably allocated because it would be
charged on an equal basis to those Redistributors that choose to redistribute the feed.
Enterprise Fees. The Exchange believes the proposed enterprise license is equitably
allocated because it would be available on an equal basis to all subscribers that are brokerdealers, each of whom would benefit from reduced exchange fees and from lower administrative
costs. Moreover, the specific feature of the proposed enterprise license that will allow
subscribers to lower fees by subscribing to a twelve-month contract is also an equitable
allocation because all subscribers will have the same option of choosing between the stability of
a fixed, lower rate, and the more flexible option of maintaining the ability to change market data

See, e.g., Securities Exchange Act Release No. 70212 (August 15, 2013), 78 FR 51775 (August 21, 2013)
(SR-NYSEMKT-2013-69) (lowering the Non-Professional User Fee (Per User) for NYSE MKT BBO and
Trades); Securities Exchange Act Release No. 20002, File No. S7-433 (July 22, 1983), 48 FR 34552 (July
29, 1983) (establishing Non-Professional fees for CTA data); NASDAQ BX Equity 7 Pricing Schedule,
Section 123.

products after a month of service. Subscribers will be free to move from the monthly to the
annual rate at any time, or from annual to a monthly fee, with notice, at the expiration of the
twelve-month period.
Non-Display Use Fees. The Exchange believes the proposed Non-Display Use fees are
equitably allocated because they would require subscribers to pay fees only for the uses they
actually make of the data. As noted above, non-display data can be used by data recipients for a
wide variety of profit-generating purposes (including trading, risk management, and compliance)
as well as purposes that do not directly generate revenues but nonetheless substantially reduce
the recipient’s costs by automating certain functions. The Exchange believes that it is equitable
to charge non-display data subscribers a $1,000 fee for each category of use they make of such
data—namely, using the data on their own behalf (Category 1), on behalf of their clients
(Category 2), and to internally match buy and sell orders within an organization (Category 3)—
because this fee structure results in subscribers with greater uses of the data paying higher fees,
and subscribers with fewer uses of the data paying lower fees. This segmented fee structure is
also equitable because no subscriber of non-display data would be charged a fee for a category of
use in which it did not actually engage.
The Exchange also believes that, regarding Category 3 fees, it is equitable to charge
$1,000 per month for each trading platform on which the data recipient uses the Non-Display
data, because such use of the data is directly in competition with the Exchange and the Exchange
should be permitted to recoup some of its lost trading revenue by charging for the data that
makes such competition possible. The Exchange believes that it is equitable to cap such fees for
Category 3 use at $3,000 per month per data recipient, because a higher monthly fee may
potentially dissuade competitors from buying the NYSE American Agg Lite data feed for use by
their trading platforms.
Non-Display Use Declaration Late Fee. The Exchange believes that the proposed fee of
$1,000 per month for a late Non-Display Use Declaration is equitably allocated because it

applies to any data recipient that pays an Access Fee for the NYSE American Agg Lite data feed
but has failed to complete and submit a Non-Display Use Declaration. In addition, the Exchange
believes that it is equitable to charge a late fee to subscribers who fail to timely submit their NonDisplay Use Declarations because their failure to do so leads to potentially incorrect billing and
administrative burdens on the part of the Exchange. The Exchange believes it is equitable to
defray these administrative costs by imposing a late fee only on subscribers’ whose declarations
were late, as opposed to all subscribers.
Multiple Data Feed Fee. The Exchange believes that the $200 per month per location fee
to data recipients taking the NYSE American Agg Lite data feed in more than two locations is
equitable because it would apply to all such customers, regardless of what type of business they
operate or the use they make of the data feed. In addition, the Exchange believes that it is
equitable to charge a fee to subscribers for taking a data feed in more than two locations because
there are administrative burdens on the part of the Exchange associated with tracking each
location at which a data recipient receives the product. The Exchange believes that it is equitable
for it to defray these administrative costs by imposing a modest fee only on subscribers who seek
to take the feed in more than two locations, as opposed to all subscribers.
Three-Month Fee Waiver. The Exchange believes the proposal to waive the Access Fee
and the Redistribution Fee for the NYSE American Agg Lite data feed to new Redistributors for
three calendar months is equitable because it would apply to any first-time Redistributor,
regardless of the use they plan to make of the feed. As proposed, any first-time Redistributor of
the NYSE American Agg Lite data feed would not be charged the Access Fee and the
Redistribution Fee for three calendar months. The Exchange believes it is equitable to restrict
the availability of this three-month fee waiver to Redistributors that have not previously
subscribed to and redistributed the NYSE American Agg Lite data feed, since customers who are
current or previous subscribers of the feed are already familiar with it and are able to determine
whether it suits their needs.

For all of the foregoing reasons, the Exchange believes that the proposed fees for the
NYSE American Agg Lite data feed are equitably allocated.
The Proposed Fees Are Not Unfairly Discriminatory
The Exchange believes the proposed fees for the NYSE American Agg Lite data feed are
not unfairly discriminatory because any differences in the application of the fees are based on
meaningful distinctions between customers, and those meaningful distinctions are not unfairly
discriminatory between customers.
Overall. The Exchange believes that the proposed fees are not unfairly discriminatory
because they would apply to all data recipients that choose to subscribe to the NYSE American
Agg Lite data feed. Any subscriber, including Redistributor, that chooses to subscribe to the
NYSE American Agg Lite data feed is subject to the same Fee Schedule, regardless of what type
of business they operate or the use they plan to make of the data feed. Subscribers, including
Redistributors, may choose to receive the data on the NYSE American Agg Lite data feed
regardless of what type of business they operate or the use they plan to make of the data feed.
Access Fee. The Exchange believes the proposed monthly Access Fee of $500 for the
NYSE American Agg Lite data feed is not unfairly discriminatory because it would be charged
on an equal basis to all data recipients that receive a data feed of the NYSE American Agg Lite,
regardless of what type of business they operate or the use they plan to make of the data feed.
User Fees. The Exchange believes that the fee structure differentiating Professional User
fees ($1 per month per user) from Non-Professional User fees ($0 per month per user) for display
device access to the NYSE American Agg Lite data feed is not unfairly discriminatory. This
structure has long been used by the Exchange to reduce the price of data to Non-Professional
Users and make it more broadly available.49 Offering the NYSE American Agg Lite data feed to
Non-Professional Users with the same data as is available to Professional Users results in greater

Id.

equity among data recipients. These user fees would be charged uniformly to all display devices
that have access to the NYSE American Agg Lite data feed.
Redistribution Fees. The Exchange believes the proposed monthly fee of $250 for
redistributing the NYSE American Agg Lite data feed is not unfairly discriminatory because it
would be charged on an equal basis to those Redistributors that choose to redistribute the feed.
Enterprise Fees. The Exchange believes the proposed enterprise license will not unfairly
discriminate between customers, issuers, brokers or dealers. The Act does not prohibit all
distinctions among customers, but only discrimination that is unfair, and it is not unfair
discrimination to charge those subscribers that are able to reach the largest audiences of
investors, including retail investors, a lower fee for incremental investors in order to encourage
the widespread distribution of market data. This principle has been repeatedly endorsed by the
Commission, as evidenced by the approval of enterprise licenses for other market data
products.50 Moreover, the proposed enterprise license will be subject to significant competition,
and that competition will ensure that there is no unfair discrimination. Each subscriber will be
able to accept or reject the license depending on whether it will or will not lower costs for that
particular subscriber, and, if the license is not sufficiently competitive, the Exchange may lose
market share. The proposed enterprise license will compete with other enterprise licenses of the
Exchange, underlying fee schedules promulgated by the Exchange, and enterprise licenses and
fee structures implemented by other exchanges. As such, it is a voluntary product for which
market participants can readily find substitutes. Accordingly, the Exchange is constrained from
introducing a fee that would be inequitable or unfairly discriminatory.
Non-Display Use Fees. The Exchange believes the proposed Non-Display Use fees are
not unfairly discriminatory because they would require subscribers for non-display use to pay

See e.g., Securities Exchange Act Release No. 83751 (July 31, 2018), 83 FR 38428 (August 6, 2018) (SRNASDAQ-2018-058) (Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Lower
Fees and Administrative Costs for Distributors of Nasdaq Basic, Nasdaq Last Sale, NLS Plus and the
Nasdaq Depth-of-Book Products Through a Consolidated Enterprise License).

fees only for the categories of use they actually make of the data. As noted above, non-display
data can be used by data recipients for a wide variety of profit-generating purposes (including
trading, risk management, and compliance) as well as purposes that do not directly generate
revenues but nonetheless substantially reduce the recipient’s costs by automating certain
functions. The Exchange believes that it is not unfairly discriminatory to charge non-display
data subscribers a $1,000 per month fee for each category of use they make of such data—
namely, using the data on their own behalf (Category 1), on behalf of their clients (Category 2),
and to internally match buy and sell orders within an organization (Category 3)—because this fee
structure results in subscribers with greater uses for the data paying higher fees, while
subscribers with fewer uses of the data pay lower fees. This segmented fee structure is not
unfairly discriminatory because no subscriber of non-display data would be charged a fee for a
category of use in which it did not actually engage.
The Exchange also believes that, regarding Category 3 fees, it is not unreasonably
discriminatory to charge $1,000 per month for each trading platform on which the data recipient
uses the Non-Display data, because such use of the data is directly in competition with the
Exchange and the Exchange should be permitted to recoup some of its lost trading revenue by
charging for the data that makes such competition possible. The Exchange believes that it is not
unreasonably discriminatory to cap such fees for Category 3 use at $3,000 per month per data
recipient, because a higher monthly fee may potentially dissuade competitors from buying the
NYSE American Agg Lite data feed for use by their trading platforms.
Non-Display Use Declaration Late Fee. The Exchange believes that the proposed fee of
$1,000 per month for a late Non-Display Use Declaration is not unfairly discriminatory because
it applies to any data recipient that pays an Access Fee for the NYSE American Agg Lite data
feed but has failed to complete and submit a Non-Display Use Declaration. In addition, the
Exchange believes that it is not unfairly discriminatory to charge a late fee to subscribers who
fail to timely submit their Non-Display Use Declarations because their failure to do so leads to

potentially incorrect billing and administrative burdens on the part of the Exchange. Nor is it
unfairly discriminatory for the Exchange to defray these administrative costs by imposing a late
fee only on subscribers’ whose declarations were late, as opposed to all subscribers.
Multiple Data Feed Fee. The Exchange believes that the $200 per month per location fee
to data recipients taking the NYSE American Agg Lite data feed in more than two locations is
not unfairly discriminatory because it would apply to all such customers, regardless of what type
of business they operate or the use they make of the data feed. In addition, the Exchange
believes that it is not unfairly discriminatory to charge a fee to subscribers for taking a data feed
in more than two locations because there are administrative burdens on the part of the Exchange
associated with tracking each location at which a data recipient receives the product. The
Exchange believes that it is not unfairly discriminatory for it to defray these administrative costs
by imposing a modest fee only on subscribers who seek to take the feed in more than two
locations, as opposed to all subscribers.
Three-Month Fee Waiver. The Exchange believes the proposal to waive the Access Fee
and the Redistribution Fee for the NYSE American Agg Lite data feed to new Redistributors for
three months is not unfairly discriminatory because it would apply to any first-time
Redistributor, regardless of the use they plan to make of the feed. As proposed, any first-time
Redistributor of the NYSE American Agg Lite data feed would not be charged the Access Fee
and the Redistribution Fee for three calendar months. The Exchange believes it is not unfairly
discriminatory to restrict the availability of this three-month fee waiver to Redistributors that
have not previously subscribed to the NYSE American Agg Lite data feed, since Redistributors
who are current or previous subscribers of the feed are already familiar with it and are able to
determine whether it suits their needs.
For all of the foregoing reasons, the Exchange believes that the proposed fees for the
NYSE American Agg Lite data feed are not unfairly discriminatory.
B.

Self-Regulatory Organization’s Statement on Burden on Competition

The Exchange does not believe that the proposed fees will impose any burden on
competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Intramarket Competition. The Exchange believes that the proposed fees do not put any
market participants at a relative disadvantage compared to other market participants. As noted
above, the proposed fee schedule would apply to all subscribers, including Redistributors, of the
NYSE American Agg Lite data feed, and customers may not only choose whether to subscribe to
the feed at all, but may tailor their subscriptions by choosing particular uses of the feed but not
others (e.g., Category 1 only versus all three categories; display device access only versus nondisplay use).
The Exchange also believes that the proposed fees neither favor nor penalize one or more
categories of market participants in a manner that would impose an undue market on
competition. As shown above, to the extent that particular proposed fees apply to only a subset
of subscribers (e.g., Category 2 fees apply only to those making non-display use on behalf of
clients; late fees apply only to customers who fail to timely submit their declarations), those
distinctions are not unfairly discriminatory and do not unfairly burden one set of customers over
another. To the contrary, by tailoring the proposed fees in this manner, the Exchange believes
that it has eliminated the potential burden on competition that might result from unfairly asking
subscribers to pay fees for services they did not use, or late fees they did not actually incur.
Intermarket Competition. The Exchange believes that the proposed fees do not impose a
burden on competition or on other SROs that is not necessary or appropriate. As noted above,
exchanges are platforms for market data and trading. In setting the proposed fees, the Exchange
was constrained by the availability of numerous substitute platforms also offering market data
products and trading, and low barriers to entry mean new exchange platforms are frequently
introduced. The fact that exchanges are platforms ensures that no exchange can make pricing
decisions for one side of its platform without considering, and being constrained by, the effects
that price will have on the other side of the platform. In setting fees for the NYSE American

Agg Lite data feed, the Exchange is constrained by the fact that, if its pricing across the platform
is unattractive to customers, customers will have its pick of an increasing number of alternative
platforms to use instead of the Exchange. Given this intense competition between platforms, no
one exchange’s market data fees can impose an unnecessary burden on competition, and the
Exchange’s proposed fees do not do so here.
In addition, the Exchange believes that the proposed fees do not impose a burden on
competition or on other exchanges that is not necessary or appropriate because of the availability
of numerous substitute market data products. Many other exchanges offer proprietary data feeds
like the NYSE American Agg Lite data feed, supplying depth of book order data, security status
updates, stock summary messages, and the exchange’s best bid and offer at any given time, on a
real-time basis. Because market data users can find suitable substitute feeds, an exchange that
overprices its market data products stands a high risk that users may substitute another platform,
in which case the platform would stand to lose both market data and trading fees. These
competitive pressures ensure that no one exchange’s market data fees can impose an unnecessary
burden on competition, and the Exchange’s proposed fees do not do so here.
C.

Self-Regulatory Organization’s Statement on Comments on the Proposed Rule
Change Received from Members, Participants, or Others

No written comments were solicited or received with respect to the proposed rule change.
III.

Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)51 of

the Act and subparagraph (f)(2) of Rule 19b-452 thereunder, because it establishes a due, fee, or
other charge imposed by the Exchange.
At any time within 60 days of the filing of such proposed rule change, the Commission
summarily may temporarily suspend such rule change if it appears to the Commission that such

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

17 CFR 240.19b-4(f)(2).

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 under Section 19(b)(2)(B)53 of the Act to determine
whether the proposed rule change 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:
•

Use the Commission's internet comment form
(https://www.sec.gov/rules/sro.shtml); or

•

Send an email to rule-comments@sec.gov. Please include file number SRNYSEAMER-2024-31 on the subject line.

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-NYSEAMER-2024-31. 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 (https://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

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

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 a.m. and 3
p.m. Copies of the filing also will be available for inspection and copying at the principal office
of the Exchange. Do not include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We may redact in part or
withhold entirely from publication submitted material that is obscene or subject to copyright
protection. All submissions should refer to file number SR-NYSEAMER-2024-31 and should be
submitted on or before [INSERT DATE 21 DAYS AFTER DATE OF PUBLICATION IN THE
FEDERAL REGISTER].
For the Commission, by the Division of Trading and Markets, pursuant to delegated
authority.54

Sherry R. Haywood,
Assistant Secretary.

[FR Doc. 2024-12040 Filed: 5/31/2024 8:45 am; Publication Date: 6/3/2024]

17 CFR 200.30-3(a)(12).