The New York Stock Exchange and four affiliated exchanges applied for approval pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”) and Rule 19b-4 thereunder of fees that they charge for wireless bandwidth connections provided by ICE Data Services (“IDS”), which is an affiliate of the Exchanges. NYSE and three affiliated exchanges also applied for approval under the same provisions of fees for wireless market data connections, also provided by IDS. I concur with the Commission that, based on the filings and the record before us, these fees are consistent with the Exchange Act and that IDS should be able to continue providing these services.
I write separately, however, because I am not fully convinced that the services provided by IDS constitute a “facility” of an exchange under Section 3(a)(2) of the Exchange Act and am concerned that the Commission’s analysis in this order takes an overly broad view of what constitutes an “exchange” for purposes of Section 3(a)(1) of the Exchange Act. The order finds that the Wireless Connections are facilities, in part, because IDS is part of a group of persons who, together, maintain the market place that constitutes each exchange, including by providing “a system of communication for the purpose of effecting or reporting transactions on the Exchanges.” Under this approach, affiliation with an exchange by a provider of this type of communications service appears to be sufficient to create a presumption that those services are a “facility” of the exchange and, consequently, are subject to the full panoply of exchange regulation under the Exchange Act.
I am uncertain that this is what the statute requires. Section 3(a)(1) of the Exchange Act does refer to “a group of persons . . . which constitutes, maintains, or provides a market place or facilities for bringing