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Federal Register / Vol. 86, No. 181 / Wednesday, September 22, 2021 / Notices promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and to protect investors and the public interest, and that it is not designed to permit unfair discrimination among customers, brokers, or dealers. The Exchange also believes that its proposed changes to its Fee Schedule concerning fees for the Open-Close Report is consistent with Section 6b of the Act 14 in general, and furthers the objectives of Section 6b4
of the Act 15 in particular, in that it is an equitable allocation of dues, fees and other charges among its members and other recipients of Exchange data.
In adopting Regulation NMS, the Commission granted self-regulatory organizations SROs and brokerdealers increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. Particularly, the OpenClose Report further broadens the availability of U.S. option market data to investors consistent with the principles of Regulation NMS. The data product also promotes increased transparency through the dissemination of the OpenClose Report. Particularly, information regarding opening and closing activity across different option series during the trading day may indicate investor sentiment, which may allow market participants to make better informed trading decisions throughout the day.
Subscribers to the data may also be able to enhance their ability to analyze option trade and volume data and create and test trading models and analytical strategies. The Exchange believes the Open-Close Report provides a valuable tool that subscribers can use to gain comprehensive insight into the trading activity in a particular series, but also emphasizes such data is not necessary for trading. Moreover, other exchanges offer a similar data product.16 This proposal simply and solely seeks to provide historical Open-Close Report data to market participants for free by amending the fees for the Open-Close Report to: i Respond to ad hoc requests for end-of-day data free of charge; and ii provide mid-month subscribers data for the entire month in which they subscribe.
The Exchange operates in a highly competitive environment. Indeed, there 14 15

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16 See supra notes 9 and 10.
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are currently 16 registered options exchanges that trade options. Based on publicly available information, no single options exchange has more than 15% of the market share and currently the Exchange represents only approximately 5.54% of the market share.17 The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Particularly, 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. 18
Making similar data products available to market participants fosters competition in the marketplace, and constrains the ability of exchanges to charge supra-competitive fees. In the event that a market participant views one exchanges data product as more or less attractive than the competition they can and do switch between similar products. The proposed fees are a result of the competitive environment, as the Exchange seeks to adopt fees to attract purchasers of the recently introduced Open-Close Data product.
The Exchange believes its proposal to provide Open-Close data in response to ad hoc request for end-of-day data free of charge is reasonable as the proposed rate is lower than the fees assessed by other exchanges that provide data in response to ad hoc request for their similar data products.19 In fact, the Exchange understands that no other exchange provides such data free of charge.20 Indeed, proposing fees that are excessively higher than established fees for similar data products would simply serve to reduce demand for the Exchanges data product, which as noted, is entirely optional. Like the Exchanges Open-Close Report, other exchanges offer similar data products that each provide insight into trading on those markets and may likewise aid in assessing investor sentiment. Although each of these similar Open-Close data products provide only proprietary trade data and not trade data from other exchanges, it is possible investors are still able to gauge overall investor 17 See the Exchanges The market at a glance, available at https www.miaxoptions.com/ last visited September 1, 2021.
18 See Securities Exchange Act Release No. 51808
June 9, 2005, 70 FR 37496, 37499 June 29, 2005
Regulation NMS Adopting Release.
19 See supra notes 9 and 10.
20 See supra note 9.

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sentiment across different option series based on open and closing interest on any one exchange.21 Similarly, market participants may be able to analyze option trade and volume data, and create and test trading models and analytical strategies using only OpenClose data relating to trading activity on one or more of the other markets that provide similar data products. As such, if a market participant views another exchanges Open-Close data as more attractive than its proposed Open-Close Report, then such market participant can merely choose not to subscribe to the Exchanges Open-Close Report and instead purchase another exchanges Open-Close data product, which offer similar data points, albeit based on that other markets trading activity.
The Exchange also believes its proposal to amend the fees for the Open-Close Report to: i Provide historical end-of-day data free of charge and ii provide mid-month subscribers data for the entire month in which they subscribe, is reasonable as it would further support its recent introduction of the Open-Close Report, which is designed to aid investors by providing insight into trading on the Exchange.
Providing market data, such as the Open-Close Report, is also a means by which exchanges compete to attract business. Subscribers that receive endof-day Open-Close data for free in response to an ad hoc request may use such data to evaluate the usefulness of the Exchanges Open-Close Report and decide, based on that data, whether to subscribe to the Open-Close Report on a monthly basis. In addition, providing new mid-month subscribers data for the entire calendar month would further enhance the value of the Open-Close Report and encourage mid-month subscriptions market participants that seek to subscribe to the Open-Close Report not having to wait to the first of the next month to subscribe and receive a full month of Open-Close Report Data for the current monthly fee. To the extent that the Exchange is successful in attracting subscribers for the Open-Close Report through this proposal, it may earn trading revenues and further enhance the value of its data products.
The Exchange also believes it proposal to make historical end-of-day OpenClose Report data on a delayed basis is a reasonable means to not encourage subscribers to request historical end-ofday Open-Close Report data over a paid subscription. If the market deems the proposal to be unfair or inequitable, 21 The exchange notes that its Open-Close Report data product does not include data on any exclusive, singly-listed option series.

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