Competitive forces and cost‐based analysis in SEC review of SRO market data fee filings: NetCoalition v. Securities and Exchange Commission

Edward J. Ferraro (Attorney, in private practice, New York, New York, USA)

Journal of Investment Compliance

ISSN: 1528-5812

Publication date: 12 April 2011

Abstract

Purpose

This paper aims to analyze and discuss the implications of the August 2010 decision of the D.C. Circuit Court of Appeals vacating and remanding to the SEC its December 2008 order approving a proposed fee filed by NYSE Arca, LLC for its depth‐of‐book product ArcaBook. It also seeks to consider the effect on the court's decision of the Dodd‐Frank Act amendments to Section 19(b) of the Exchange Act.

Design/methodology/approach

The paper analyzes the evolution of the SEC's policy regarding SRO market data fees including the 1999 Concept Release on Market Information, the Advisory Committee on Market Information, the effects of decimalization and the 2005 adoption of Regulation NMS. It focuses on market data fee policy in connection with the Commission's decade‐long project to increase the role of competition in the US securities markets, culminating in the 2006 NYSE Arca fee filing, the SEC's 2008 order approving those fees and the NetCoalition decision.

Findings

The court's decision that a cost analysis is not irrelevant to the SEC's review of proposed SRO fee filings brings clarity and finality to a long‐standing dispute within the Commission and the securities industry and identifies a procedure for reaching an economically sound determination of “fair and reasonable” fees for SRO market data.

Practical implications

A cost‐based analysis of SRO market data fee filings is likely to result in a significant decline in market data revenues for those exchanges that charge fees for their data. For the Commission, cost‐based analysis is likely to require a significant reallocation of its regulatory staff and resources.

Originality/value

The paper presents a useful analysis for securities regulatory lawyers and financial analysts and investors following the stock exchange and financial information industries.

Keywords

Citation

Ferraro, E. (2011), "Competitive forces and cost‐based analysis in SEC review of SRO market data fee filings: NetCoalition v. Securities and Exchange Commission", Journal of Investment Compliance, Vol. 12 No. 1, pp. 5-29. https://doi.org/10.1108/15285811111122010

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Publisher

:

Emerald Group Publishing Limited

Copyright © 2011, Emerald Group Publishing Limited

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