Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Qualified Contingent Cross Pricing

Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”), and Rule 19b-4 thereunder, notice is hereby given that on April 15, 2016, NASDAQ PHLX LLC (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) the proposed rule change as described in Items I, II, and III, below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.

I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change

The Exchange proposes to amend the Exchange's Pricing Schedule at Section II, entitled “Multiply Listed Options Fees.” Specifically, the Exchange is proposing to amend the Qualified Contingent Cross (“QCC”) pricing.

While changes to the Pricing Schedule pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on May 2, 2016.

The text of the proposed rule change is available on the Exchange's Web site at http://nasdaqomxphlx.cchwallstreet.com/,, at the principal office of the Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose

The purpose of the proposed rule change is to amend the Exchange's Pricing Schedule at Section II, entitled “Multiply Listed Options Fees.” Specifically, the Exchange is proposing to amend QCC pricing.

Today, the Exchange assesses a QCC Transaction Fee of $0.20 per contract to a Specialist, Market Maker, Firm and Broker-Dealer. Customers and Professionals are not assessed a QCC Transaction Fee. The Exchange also pays rebates on QCC Orders as follows:

Rebates are paid for all qualifying executed QCC Orders, as defined in Rule 1080(o) and Floor QCC Orders, as defined in Rule 1064(e), except where the transaction is either: (i) Customer-to-Customer; (ii) Customer-to-Professional or (iii) a dividend, merger, short stock interest or reversal or conversion strategy execution. The maximum QCC Rebate to be paid in a given month will not exceed $450,000. The Exchange pays QCC Rebates to market participants acting as agent on qualifying QCC Orders per the QCC Rebate Schedule. The Exchange proposes to no longer pay QCC Rebates on Professional-to-Professional orders.

QCC Orders are an order to buy or sell at least 1,000 contracts, or 10,000 contracts in the case of Mini Options. These large-sized contingent orders are complex in nature and have a stock-tied component, which requires the option leg to be executed at the NBBO or better. The parties to a contingent trade are focused on the spread or ratio between the transaction prices for each of the component instruments (i.e., the net price of the entire contingent trade), rather than on the absolute price of any single component. Today, Professional orders are treated similar to Customer orders with respect to QCC pricing because of the characteristics of the QCC Order which are described above. Today, Professional orders are not assessed a QCC Transaction Fee and no rebate is paid for Customer-to-Professional orders. The Exchange reasoned in a prior rule change that “The differentiation between a Customer and Professional is not necessary with respect to QCC Orders because these orders are exempt from requirements regarding order exposure. Further, QCC Orders are not executed pursuant to a priority scheme. Also, as explained above, because of the size of the order, sophistication of the investor and complexity of the transaction, it is difficult to distinguish as between a Customer and Professional with respect to QCC Orders.”

The Exchange believes that treating Customer orders and Professional orders in a similar manner by also excluding Professional-to-Professional orders as eligible to receive a QCC Rebate will further remove any differentiation as between Professionals and Customers with respect to QCC pricing when transacting QCC Orders.

2. Statutory Basis

The proposal is consistent with Section 6(b) of the Act, in general, and furthers the objectives of Sections 6(b)(4) and 6(b)(5) of the Act, in particular, in that it provides for the equitable allocation of reasonable dues, fees and other charges among members and issuers and other persons using any facility or system which the Exchange operates or controls, and is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers.

The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, 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.”

Likewise, in NetCoalition v. Securities and Exchange Commission the D.C. Circuit upheld the Commission's use of a market-based approach in evaluating the fairness of market data fees against a challenge claiming that Congress mandated a cost-based approach. As the court emphasized, the Commission “intended in Regulation NMS that `market forces, rather than regulatory requirements' play a role in determining the market data . . . to be made available to investors and at what cost.”

Further, “[n]o one disputes that competition for order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S. national market system, buyers and sellers of securities, and the broker-dealers that act as their order-routing agents, have a wide range of choices of where to route orders for execution'; [and] `no exchange can afford to take its market share percentages for granted' because `no exchange possesses a monopoly, regulatory or otherwise, in the execution of order flow from broker dealers' . . . .” Although the court and the SEC were discussing the cash equities markets, the Exchange believes that these views apply with equal force to the options markets.

It is reasonable to no longer pay a QCC Rebate on Professional-to-Professional orders because the distinction that necessitated the differentiation as between Customer and Professional orders is not meaningful with respect to QCC Orders. QCC Orders are orders to buy or sell at least 1,000 contracts, or 10,000 contracts in the case of Mini Options. These large-sized contingent orders are complex in nature and have a stock-tied component, which requires the option leg to be executed at the NBBO or better. The parties to a contingent trade are focused on the spread or ratio between the transaction prices for each of the component instruments (i.e., the net price of the entire contingent trade), rather than on the absolute price of any single component. Also, no Customer priority exists with respect to QCC Orders as with orders transacted within the order book or on the Floor. Today, Professional orders are not assessed a QCC Transaction Fee and are not eligible to receive a QCC Rebate for Customer-to-Professional orders. The Exchange believes that also excluding Professional-to-Professional orders from receiving a QCC Rebate will align Customer orders and Professional orders with respect to QCC Pricing.

With respect to QCC transactions, the Commission noted in an order approving a qualified contingent cross order type on International Securities Exchange, LLC (“ISE”) that “The Commission believes that those customers participating in QCC Orders will likely be sophisticated investors who should understand that, without a requirement of exposure for QCC Orders, their order would not be given an opportunity for price improvement on the Exchange. These customers should be able to assess whether the net prices they are receiving for their QCC Order are competitive, and who will have the ability to choose among broker-dealers if they believe the net price one broker-dealer provides is not competitive. Further, broker-dealers are subject to a duty of best execution for their customers' orders, and that duty does not change for QCC Orders.” The intent behind the Professional designation does not apply in the context of transacting QCC Orders, because of the size of the order, sophistication of the investor and complexity of the transaction, and therefore the pricing differentiation is not necessary. For these reasons, the Exchange believes that also excepting Professional-to-Professional orders from receiving a QCC Rebate will further remove any differentiation as between Professionals and Customers with respect to QCC pricing when transacting QCC Orders.

It is equitable and not unfairly discriminatory to no longer pay a QCC Rebate on Professional-to-Professional orders because, today, Professionals are not assessed a QCC Transaction Fee and Customer-to-Professional orders are not eligible to receive a QCC Rebate. Excluding Professional-to-Professional orders from receiving a QCC Rebate aligns the treatment of Professional orders with Customer orders. As explained above, QCC Orders are distinctive as compared to transactions executed within the order book or on the Floor, which orders are subject to exposure and grant Customers priority over other market participants. The original purpose for the distinction between a Customer and a Professional was to prevent market professionals with access to sophisticated trading systems that contain functionality not available to retail Customers, from taking advantage of Customer priority, where Customer orders are given execution priority over non-Customer orders. The Exchange noted at the time that it adopted the Professional designation that basing the Professional designation upon the average number of orders entered for a beneficial account was an appropriate objective approach that would reasonably distinguish such persons and entities from retail investors.

With respect to distinguishing Professional orders from other Non-Customer participant orders, the Exchange notes that these other market participants, Specialists, Market Makers, Firms and Broker-Dealers, are distinct from a Professional for purposes of assessing QCC Transaction fees for the below reasons. With respect to Firms, these market participants are eligible for the Monthly Firm Fee Cap of $75,000 per month. Firms are not subject to QCC Transaction Fees once the Monthly Firm Fee Cap is met in a given month. Specialists and Market Makers are eligible for the Monthly Market Maker Cap of $500,000 per month. Specialists and Market Makers are not subject to QCC Transaction Fees once the Monthly Market Maker Cap is met in a given month. Professionals are not subject to similar caps. With respect to Broker-Dealers, the Exchange notes that members may choose to register as a Broker-Dealer. Market participants acting as agent, compared to market participants trading for their own account, are eligible to receive QCC Rebates. The Exchange pays market participants acting as agent for QCC Orders the QCC Rebates per the QCC Rebate Schedule.

Further, the Exchange believes that distinguishing Professional orders from other Non-Customer orders is equitable and not unfairly discriminatory because QCC Orders are an exception to the general distinctions drawn as between Customer orders and Professional orders. Aside from the lack of priority for QCC Orders, the size of the order, sophistication of the investor and complexity of the transaction make it difficult to distinguish a Customer order from a Professional order. For purposes of the QCC Order, the Exchange believes that such distinction is not necessary.

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

The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, that the degree to which fee changes in this market may impose any burden on competition is extremely limited.

The initial purpose of the distinction between a Customer and a Professional was to prevent market professionals with access to sophisticated trading systems that contain functionality not available to retail customers, from taking advantage of Customer priority, where Customer orders are given execution priority over Non-Customer orders. Professional orders are identified based upon the average number of orders entered for a beneficial account.

QCC Orders are by definition large-sized contingent orders which have a stock-tied component. The parties to a contingent trade are focused on the spread or ratio between the transaction prices for each of the component instruments (i.e., the net price of the entire contingent trade), rather than on the absolute price of any single component. Treating Customer orders and Professional orders in the same manner in terms of pricing with respect to QCC Orders does not provide any advantage to a Professional. The distinction does not create an opportunity to burden competition, for the reasons stated herein with respect to priority as well as the reasons below.

With respect to distinguishing Professional orders from other Non-Customer orders, the Exchange notes that Non-Customer orders are distinct from Professional orders for purposes of assessing QCC Transaction Fees. Firms are eligible for the Monthly Firm Fee Cap and not subject to QCC Transaction Fees once the Monthly Firm Fee Cap is met in a given month. Specialists and Market Makers are eligible for the Monthly Market Maker Cap and not subject to QCC Transaction Fees once the Monthly Market Maker Cap is met in a given month. Professionals are not subject to similar caps. With respect to Broker-Dealers, the Exchange notes that members may choose to register as a Broker-Dealer. These categories of market participants transact QCC Orders on an agency basis and are eligible to receive QCC Rebates. Excluding Professional-to-Professional orders does not impose an undue burden on intra-market competition because excluding these types of orders would further align the exclusion of Professional-to-Professional orders with the exclusion of Customer-to-Customer and Customer-to-Professional orders from receiving a QCC Rebate.

The Exchange's proposal does not place on undue burden on inter-market competition because the QCC order type is similar on other options exchanges and these exchanges may also file to eliminate the distinction between Customers and Professionals for the QCC order type.

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

No written comments were either solicited or received.

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)(ii) of the Act.

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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) 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

• Use the Commission's Internet comment form ( http://www.sec.gov/rules/sro.shtml ); or
• Send an email to rule-comments@sec.gov. Please include File Number SR-Phlx-2016-52 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-Phlx-2016-52. 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 the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; 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-Phlx-2016-52 and should be submitted on or before May 19, 2016.