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Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Notices again, the Proposed Procedure is reasonably designed to prevent a User from obtaining a greater portion of the power and cabinets available.
The Exchange believes that the proposed change is reasonable and equitable because the Exchange would only place limits on Users ability to purchase Standard Cabinets or Additional Power if either or both the Power Threshold and Cabinet Threshold are reached. Similarly, the Exchange believes that the proposed change is reasonable and equitable because the Combined Waitlist would only be created if unallocated power capacity in co-location is zero, or if a User requests, in writing, an amount of power whether power allocated to a Standard Cabinet or Additional Power that, if provided, would cause the unallocated power capacity to be below zero, and because there would be an established threshold for cessation of the Combined Waitlist.
The Exchange believes that it would be reasonable and equitable to require Users with PNU cabinets to either convert their PNU cabinets into dedicated cabinets or relinquish them if either or both the Cabinet Threshold and Power Threshold are reached.
Doing so would make the power reserved for PNU cabinets and the cabinets themselves available to meet User demand for power and cabinets. As a result, no User would be subject to limitations on its ability to purchase and use power or cabinets at the same time that PNU cabinets were dormant. The Exchange believes that the measure is therefore reasonably designed to prevent a User from reserving, but not using, power or cabinets at a time when other Users are subject to limitations, facilitating a more equitable distribution.
The Proposed Procedures would provide additional specificity to the existing PNU cabinet provision permitting conversion of PNU cabinets, by stating what the relevant thresholds would be, when the Exchange would require Users to decide whether to convert their PNU cabinets, and when PNU cabinets would be offered again, thereby increasing transparency and adding clarity.
The Exchange believes that the proposed change would be a reasonable method for the Exchange to accommodate demand for power and cabinets on an equitable basis, while allowing all Users that currently have a PNU cabinet to have a choice between converting their PNU cabinet to a dedicated cabinet or relinquishing it.
The Exchange notes that Nasdaqs colocation customers that have a Cabinet
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Proximity Option have a similar choice if Nasdaq determines that the reserved data center space is needed for use.16
Finally, the Exchange believes that it would be fair and equitable to require all Users with PNU cabinets to be subject to the same measures if the Cabinet Threshold or Power Threshold were met.
The Proposed Rule Change Would Protect Investors and the Public Interest The Exchange believes that the proposed rule change would perfect the mechanisms of a free and open market and a national market system and, in general, protect investors and the public interest for the following reasons.
The Exchange believes that User demand for cabinets and power will continue. In this context, the proposed rule change would allow the Exchange to protect investors and the public interest, first, by setting limits on Users ability to purchase power, and second, by using a waitlist to allocate any unallocated cabinets and power on a first come-first served rolling basis.
Based on experience, the Exchange believes that the Power Threshold is sufficiently low that it would not be triggered repeatedly, which would protect investors and the public interest.
Similarly, based on its experience with co-location and purchasing trends over the last few years, the Exchange believes that in most cases the amount of power that a User would be allowed to buy under the proposed Combined Limits, whether in the form of cabinets or Additional Power, would be sufficient for a Users needs while leaving a margin for potential growth, which would protect investors and the public interest.
In addition, the Proposed Procedures would protect investors and the public interest in that they are designed to prevent Users from utilizing the Combined Limit and waitlist procedures to obtain a greater portion of the power and cabinets available, thereby facilitating a more equitable distribution.
The Exchange believes that it would protect investors and the public interest to require Users with PNU cabinets to either convert their PNU cabinets into dedicated cabinets or relinquish them if either or both the Cabinet Threshold and Power Threshold are reached.
Doing so would mean that no User would be subject to limitations on its ability to purchase and use power or 16 Co-location customers may either contract with Nasdaq for full payment or have the cabinet reassigned. Securities Exchange Act Release No.
62354 June 22, 2010, 75 FR 38860 July 6, 2010
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cabinets at the same time that PNU
cabinets were dormant. The Exchange believes that the measure is therefore reasonably designed to prevent a User from reserving but not using power or cabinets at a time when other Users are subject to limitations.
The proposed rule change would protect investors and the public interest because the proposed revised General Notes would articulate rational, objective procedures consistent with the Existing Procedures and PNU cabinet provisions, and would serve to reduce any potential for confusion on how cabinets and power would be allocated if a shortage in one or the other were to arise in the future, and would thereby make the Fee Schedule more transparent and reduce any potential ambiguity.
The Proposed Change Is Not Unfairly Discriminatory The Exchange believes that the proposed change is not unfairly discriminatory for the following reasons.
The proposed change would apply equally to all types and sizes of market participants. If the Proposed Procedures were in place, all Users would be able to identify the permitted cabinet and power options and the procedures that would apply to them in the event that unallocated cabinet or power supply runs low in the future. All Users with PNU cabinets would be subject to the same measures if the Cabinet Threshold or Power Threshold were met. The Proposed Procedures would assist the Exchange in accommodating demand for co-location services, and power and cabinets in particular, on an equitable basis.
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
B. Self-Regulatory Organizations Statement on Burden on Competition In accordance with Section 6b8 of the Act,17 the Exchange believes that the proposed rule change will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
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