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Federal Register / Vol. 86, No. 104 / Wednesday, June 2, 2021 / Notices
a proposed rule change to amend their schedule of Wireless Connectivity Fees and Charges Fee Schedule to 1 add circuits for connectivity into and out of the data center in Mahwah, New Jersey Mahwah Data Center; 2 add services available to customers of the Mahwah Data Center that are not colocation Users; and 3 change the name of the Fee Schedule to Mahwah Wireless, Circuits, and Non-Colocation Connectivity Fees and Charges. The proposed rule changes were published for comment in the Federal Register on March 4, 2021.3 On April 7, 2021, pursuant to Section 19b2 of the Act,4
the Commission designated a longer period within which to either approve the proposed rule changes, disapprove the proposed rule changes, or institute proceedings to determine whether to disapprove the proposed rule changes.5
This order institutes proceedings under Section 19b2B of the Exchange Act 6
to determine whether to approve or disapprove the proposed rule changes.

Wireless Connectivity Fees and Charges to Mahwah Wireless, Circuits, and Non-Colocation Connectivity Fees and Charges. 8 The Exchanges expect the proposed changes to be operative 60 days after the proposed rule changes become effective.9
The Exchanges state that they make the current proposals solely as a result of their determination that the Commissions interpretations of the Acts definitions of the terms exchange 10 and facility 11 apply to connectivity services described herein that are offered by entities other than the Exchanges.12 The Exchanges state that they disagree with the Commissions interpretations, deny the services covered herein are offerings of an exchange or a facility thereof, and have sought review of the Commissions interpretations as expressed in the Wireless Approval Order in the Court of Appeals for the District of Columbia Circuit.13

II. Description of the Proposed Rule Changes The Exchanges propose to amend the Fee Schedule to add services NCL
Services and related fees available to customers of the data center in Mahwah Data Center that are not colocation Users NCL Customers, as well as circuits into and out of the Mahwah Data Center that are available to both colocation Users and NCL Customers.7
The Exchanges also propose changing the name of the Fee Schedule from
A. Mahwah Circuits According to the Exchanges, customers can connect into and out of the Mahwah Data Center using either wireless connections or wired fiber optic circuits.14 Both ICE Data Services IDS 15 and third-party
3 See Securities Exchange Act Release Nos. 91217
February 26, 2021, 86 FR 12715 March 4, 2021
SRNYSE202114 Notice; 91218 February 26, 2021, 86 FR 12744 March 4, 2021 SR
NYSEAMER202110; 91216 February 26, 2021, 86 FR 12735 March 4, 2021 SRNYSEArca2021
13; 91219 February 26, 2021, 86 FR 12724 March 4, 2021 SRNYSECHX202103; and 91215
February 26, 2021, 86 FR 12752 March 4, 2021
SRNYSENAT202104 collectively, the Notices. Comments received on the Notices are available on the Commissions website at: https
www.sec.gov/comments/sr-nyse-2021-14/
srnyse202114.htm. For ease of reference, citations to the Notices are to the Notice for SRNYSE2021
14.
4 15 U.S.C. 78sb2.
5 See Securities Exchange Act Release No. 91490
April 7, 2021, 86 FR 19313 April 13, 2021. The Commission designated June 2, 2021, as the date by which it should approve, disapprove, or institute proceedings to determine whether to disapprove the proposed rule changes.
6 15 U.S.C. 78sb2B.
7 See Notice, supra note 3, at 12715. For purposes of the Exchanges colocation services, a User means any market participant that requests to receive colocation services directly from the Exchanges. See id. at 12715 n.4 citing Securities Exchange Act Release No. 76008 September 29, 2015, 80 FR 60190 October 5, 2015 SRNYSE
201540. NCL Customers do not co-locate any equipment in the Mahwah Data Center. See id. at 12720 n.10.

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8 See
id. at 1271516.
id. at 12716.
10 See 15 U.S.C. 78ca1 The term exchange means any organization, association, or group of persons, whether incorporated or unincorporated, which constitutes, maintains, or provides a market place or facilities for bringing together purchasers and sellers of securities or for otherwise performing with respect to securities the functions commonly performed by a stock exchange as that term is generally understood, and includes the market place and the market facilities maintained by such exchange..
11 See 15 U.S.C. 78ca2 The term facility when used with respect to an exchange includes its premises, tangible or intangible property whether on the premises or not, any right to the use of such premises or property or any service thereof for the purpose of effecting or reporting a transaction on an exchange including, among other things, any system of communication to or from the exchange, by ticker or otherwise, maintained by or with the consent of the exchange, and any right of the exchange to the use of any property or service..
12 See Notice, supra note 3, at 12716; see also Securities Exchange Act Release No. 90209 October 15, 2020, 85 FR 67044 October 21, 2020 SR
NYSE202005, SRNYSEAMER202005, SR
NYSEArca202008, SRNYSECHX202002, SR
NYSENAT202003, SRNYSE202011, SR
NYSEAMER202010, SRNYSEArca202015, SRNYSECHX202005, SRNYSENAT202008
Wireless Approval Order.
13 See Notice, supra note 3, at 12716; see also Intercontinental Exchange, Inc. v. SEC, No. 201470
D.C. Cir. 2020.
14 See id. at 12716.
15 IDS operates through several different Intercontinental Exchange, Inc. ICE affiliates, including NYSE Technologies Connectivity, Inc., an indirect subsidiary of NYSE. The Exchanges 9 See
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telecommunications service providers offer wired circuits into and out of the Mahwah Data Center.16 The Exchanges propose to add to the Fee Schedule the circuit options offered by IDS to both colocation Users and NCL Customers to connect into and out of the Mahwah Data Center.17
Specifically, the Exchanges propose to amend the Fee Schedule to add two different types of circuits, each available in three different sizes, under the new heading C. Mahwah Circuits. 18 First, the Exchanges propose to amend the Fee Schedule to add Optic Access circuits, which are circuits that IDS
operates and that customers can use to connect between the Mahwah Data Center and IDS access centers at six third-party owned data centers.19
Second, the Exchanges propose to amend the Fee Schedule to add lowerlatency Optic Low Latency circuits that IDS operates and that customers can use to connect between the Mahwah Data Center and IDSs Secaucus Access Center or Carteret Access Center.20 The Exchanges propose to add a chart to the Fee Schedule to include these circuits, setting forth each type of service and the associated amounts of initial plus monthly fees.21
B. Non-Colocation Services The Exchanges propose to amend the Fee Schedule to add several services available to NCL Customers as well as several notes under the new heading D.
Non-Colocation NCL Services. 22
According to the Exchanges, these are the services that IDS offers within the Mahwah Data Center that are not colocation services.23
themselves are indirect subsidiaries of ICE. See Wireless Approval Order, supra note 12, at 67045.
16 See Notice, supra note 3, at 12716.
17 See id.
18 See id.
19 These data centers include: 1 111 Eighth Avenue, New York, NY; 2 32 Avenue of the Americas, New York, NY; 3 165 Halsey, Newark, NJ; 4 Secaucus, NJ the Secaucus Access Center; 5 Carteret, NJ the Carteret Access Center; and 6 Weehawken, NJ. Optic Access circuits are available in 1 Gb, 10 Gb, and 40 Gb sizes. See id.
20 Optic Low Latency circuits are available in 1
Gb, 10 Gb, and 40 Gb sizes. See id.
21 The proposed types of services and amounts of charges are as follows: Optic Access Circuit1 Gb $1,500 initial charge plus $1,500 monthly charge;
Optic Access Circuit10 Gb $5,000 initial charge plus $2,500 monthly charge; Optic Access Circuit40 Gb $5,000 initial charge plus $6,000
monthly charge; Optic Low Latency Circuit1 Gb $1,500 initial charge plus $2,750 monthly charge;
Optic Low Latency Circuit10 Gb $5,000 initial charge plus $3,950 monthly charge; and Optic Low Latency Circuit40 Gb $5,000 initial charge plus $8,250 monthly charge. See id.
22 See id.
23 See id.

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