The NASDAQ Stock Market, LLC v. SEC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 18, 2020 Decided June 5, 2020
No. 18-1292
THE NASDAQ STOCK MARKET, LLC,
PETITIONER
v.
SECURITIES AND EXCHANGE COMMISSION,
RESPONDENT
SECURITIES INDUSTRY AND FINANCIAL MARKETS
ASSOCIATION,
INTERVENOR
Consolidated with 18-1293
On Petitions for Review of an Order of
the Securities and Exchange Commission
Thomas G. Hungar argued the cause for petitioner The
NASDAQ Stock Market LLC. On the brief were Eugene
Scalia, Amir C. Tayrani, Jacob T. Spencer, Daniel G. Swanson,
and Stephen D. Susman.
Douglas W. Henkin argued the cause for petitioner NYSE
Arca, Inc. With him on the briefs was Richard M. Zuckerman.
2
Dominick V. Freda, Assistant General Counsel, Securities
and Exchange Commission, argued the cause for respondent.
With him on the brief were Michael A. Conley, Solicitor, and
Benjamin Vetter, and Dina B. Mishra, Senior Counsel.
Carter G. Phillips argued the cause for intervenor. With
him on the brief were Michael D. Warden, Eric D. McArthur,
and David J. Feith.
Benjamin Beaton was on the brief for amici curiae
Bloomberg L.P., et al. in support of respondent and intervenor.
Hyland Hunt and Ruthanne M. Deutsch were on the brief
for amicus curiae Investors Exchange LLC in support of
respondent and intervenor.
Before: MILLETT and WILKINS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: For the third time in this long-
running dispute, we are asked to consider whether fees that
national securities exchanges charge for access to their “depth-
of-book” data violate the Securities Exchange Act of 1934, 15
U.S.C. § 78a et seq. Ten years ago, we upheld the Security and
Exchange Commission’s “market-based” test for determining
whether fees for this type of product are fair and reasonable.
NetCoalition v. S.E.C., 615 F.3d 525, 534 (D.C. Cir. 2010)
(“NetCoalition I”). Three years later, we concluded that a
provision of the Dodd-Frank Wall Street Reform and
Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376(2010) (“Dodd-Frank Act”), deprives us of jurisdiction to
review the Commission’s decision not to suspend a fee rule
within 60 days under Section 19(b)(3)(C) of the Exchange Act.
3
NetCoalition v. S.E.C., 715 F.3d 342, 343 (D.C. Cir. 2013)
(“NetCoalition II”). However, we noted in NetCoalition II the
Commission’s position that these fees might be challengeable
under Section 19(d) of the Exchange Act, 15 U.S.C. § 78s(d),
which allows the Commission to review an exchange’s
decision to “limit” a person’s access to its services. Id. at 353.
Such a challenge, if proper, would open the door for judicial
review. Id. (“[A] party aggrieved by the Commission’s
disposition of a section 19(d) petition undoubtedly may obtain
judicial review of that disposition in the court of appeals.”).
The NetCoalition II petitioners then filed a Section 19(d)
complaint, and the Commission concluded that Section 19(d)
is available as a means of reviewing the reasonableness of the
fees. After a hearing, an ALJ found for the exchanges, but the
Commission reversed, finding the fees unreasonable. The
exchanges have petitioned our Court for review, arguing
primarily that the fees at issue here cannot be challenged under
Section 19(d).
Today, we hold that Section 19(d) is not available as a
means to challenge the reasonableness of generally-applicable
fee rules. Section 19(d)’s text does not contemplate challenges
to generally-applicable fee rules, and the remedy and notice
provisions are incompatible with a challenge to fee rules that
do not target specific individuals or entities. Exercising
jurisdiction under 15 U.S.C. § 78y(a), we grant the petitions for
review, vacate the Commission’s decision, and remand for
further proceedings.
I.
The petitioners in this case—NYSE Arca, Inc. and Nasdaq
Stock Market, LLC (“the Exchanges”)—are national securities
exchanges under the Exchange Act, which governs the major
securities markets in the United States. As such, they are quasi-
4
governmental entities called “self-regulatory organizations,” or
SROs. See 15 U.S.C. § 78c(a)(26). “Although self-regulatory,
[SROs] remain[] subject to comprehensive SEC oversight and
control.” NetCoalition I, 615 F.3d at 528. When an SRO
wishes to impose or change a fee for its services or products, it
must file a rule change with the Commission, 15 U.S.C.
§ 78s(b), and the Commission must ensure that the rule change
is “not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers” and does not “impose
any [unnecessary] burden on competition,” id. § 78f(b)(5), (8).
The rule changes at issue here involve fees that the
Exchanges charge for their “depth-of-book” data, which
“consists of outstanding limit orders to buy stock at prices
lower than, or to sell stocks at prices higher than, the best prices
on each exchange.” NetCoalition I, 615 F.3d at 529-30. This
data “allows a trader to gain background information about the
‘liquidity’ of a security on a particular exchange, i.e., the
degree to which his total sale or purchase price will differ from
what he would receive if the entire trade were made at the
prevailing best prices.” Id. at 530. Two industry groups – the
Respondent-Intervenor in this case, Securities Industry and
Financial Markets Association (SIFMA), and a now-disbanded
group called NetCoalition – challenged the Exchanges’ fees,
but the Commission upheld them as fair and reasonable under
the Exchange Act using a “market-based” approach. Id. at 532.
The industry groups sought review, and in NetCoalition I we
upheld the Commission’s “market-based” approach for
assessing the fairness and reasonableness of fees, but remanded
because the record lacked sufficient support for the
Commission’s conclusion that market forces actually
constrained the Exchanges’ pricing. Id. at 539-44.
While NetCoalition I was pending, Congress passed the
Dodd-Frank Act, which overhauled the process for the filing
5
and approval of SRO rule changes. Before the Dodd-Frank
Act, “the Exchange Act required the Commission to approve a
change in market data fee rules before such change became
effective,” and the Commission could approve “such a change
only if, after notice and comment, it found that the ‘proposed
rule change [was] consistent with the requirements of the’
Exchange Act.” NetCoalition II, 715 F.3d at 344 (alteration in
original) (quoting 15 U.S.C. § 78s(b)(2) (2006)). The Dodd-
Frank Act altered this scheme, however, providing that such a
rule change “take[s] effect upon filing with the Commission”
and “may be enforced by [the SRO] to the extent it is not
inconsistent with” the Exchange Act and its applicable
regulations. 15 U.S.C. § 78s(b)(3)(A), (C). Under Section
19(b)(3)(C), the Commission may suspend the rule within 60
days of its filing if it concludes that “such action is necessary
or appropriate in the public interest, for the protection of
investors, or otherwise in furtherance of the” Exchange Act.
Id. § 78s(b)(3)(C). But the statute provides that “Commission
action pursuant to [Section 19(b)(3)(C)] . . . shall not be
reviewable.” Id.
After we decided NetCoalition I, the Exchanges filed new
rule changes to the fee structure for their depth-of-book data
products, and the Commission rejected SIFMA’s and
NetCoalition’s request to suspend the rules. NetCoalition II,
715 F.3d at 344. SIFMA and NetCoalition then petitioned our
Court for review, but we dismissed their petitions in
NetCoalition II, concluding that we lack jurisdiction over the
Commission’s decision not to suspend a rule change. Id. at
344, 354. Specifically, we held that the Commission’s decision
not to suspend a rule change qualifies as unreviewable
“Commission action” under Section 19(b)(3)(C). Id. at 347-
52.
6
Relevant here, we noted that our holding was “bolstered
by the availability of judicial review down the road,” pointing
to the Commission’s position that aggrieved parties could
challenge the fee rules before the Commission at the
“enforcement stage” under Section 19(d). Id. at 352.
Section 19(d) allows aggrieved parties to challenge an SRO
action that, among other things, “prohibits or limits [them] in
respect to access to services offered by” the SRO. 15 U.S.C.
§ 78s(d)(1). Without deciding the applicability of Section
19(d), we “t[ook] the Commission at its word, to wit, that it
w[ould] make the section 19(d) process available to parties
seeking review of unreasonable fees charged for market data,
thereby opening the gate to our review,” and explained that “if
unreasonable fees constitute a denial of ‘access to services’
under section 19(d), we have authority to review such fees.”
Id. at 353 (emphasis added).
Predictably, SIFMA then challenged the fees under
Section 19(d). The Exchanges sought dismissal of the
challenges, arguing that generally-applicable fee filings cannot
constitute “prohibit[ions] or limit[ations]” on access under
Section 19(d), because that provision is limited to review of
actions targeting specific members. The Commission rejected
that argument and referred the matter to an ALJ to decide
whether the Exchanges’ fee rules constitute a “limit” on access
to their services within the meaning of Section 19(d). After a
five-day hearing, the ALJ ruled for the Exchanges, concluding
that the pricing for depth-of-book data is subject to significant
competitive forces. SIFMA sought review, and the
Commission reversed the ALJ’s decision. The Exchanges have
timely petitioned for review from our Court.
7
II.
The first issue presented is the only one we decide today:
whether the Commission erred in concluding that a generally-
applicable fee rule may be challenged as a “limit[ation]” on
“access to services” under Section 19(d) of the Exchange Act. 1
In order to answer that question, we must first determine what
standard of review to apply.
When reviewing an agency’s construction of a statute it
administers, we ask “whether Congress has directly spoken to
the precise question at issue.” Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). “If the intent
of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Id. at 842-43.
But “if the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the statute.”
Id. at 843. If the agency’s interpretation is reasonable, we
usually defer to it. See id. But a “reasonable statutory
interpretation must account for both the specific context in
which language is used and the broader context of the statute
as a whole.” Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302,
321 (2014) (quoting Robinson v. Shell Oil Co., 519 U.S. 337,
341 (1997)). “A statutory provision that may seem ambiguous
in isolation is often clarified by the remainder of the statutory
scheme[,] because only one of the permissible meanings
produces a substantive effect that is compatible with the rest of
the law.” Id. (internal quotation marks omitted). Therefore, an
“agency interpretation that is ‘inconsistent with the design and
1
Because we conclude that Section 19(d) is not an available means
to challenge the fees at issue here, we do not pass on any of the other
issues presented in the briefs.
8
structure of the statute as a whole’ . . . does not merit
deference.” Id. (quoting Univ. of Texas Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 353 (2013) (alterations omitted)).
There is no dispute that Section 19(d) is “silent” about
whether charging a fee qualifies as a “limit[ation]” on “access
to services.” See Chevron, 467 U.S. at 843. But the Exchanges
argue that the Chevron framework does not apply, because
other agencies also interpret this provision. Indeed, we have
held that “[w]hen a statute is administered by more than one
agency, a particular agency’s interpretation is not entitled
to Chevron deference,” Proffitt v. F.D.I.C., 200 F.3d 855, 860
(D.C. Cir. 2000), and it is undisputed that the Comptroller of
the Currency, the Board of Governors of the Federal Reserve,
and the Federal Deposit Insurance Corporation also administer
Section 19(d), see 15 U.S.C. § 78c(a)(26), (34)(B). The
Commission does not respond to this argument. Nonetheless,
we need not resolve whether Chevron applies here, because
even assuming it does, the Commission’s interpretation of
Section 19(d) is unreasonable, and accordingly cannot be
sustained.
We note at the outset that NetCoalition II does not dictate
our Section 19(d) determination. Our discussion of Section
19(d) in NetCoalition II is dicta, because our conclusion that
the Commission’s nonsuspension of fees was unreviewable did
not turn on the availability of a Section 19(d) challenge down
the road. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44,
67 (1996) (“[I]t is not only the result but also those portions of
the opinion necessary to that result by which we are bound.”);
Gersman v. Grp. Health Ass’n, Inc., 975 F.2d 886, 897 (D.C.
Cir. 1992) (analysis that “is not determinative of the
result . . . must be deemed not a holding”). Instead, we
declared that “the text of section 19(b)(3)(C) is clear” that we
lack jurisdiction to review the nonsuspension of fees. 715 F.3d
9
at 352; see also id. at 353 (“If unreasonable fees constitute a
denial of ‘access to services’ under section 19(d), we have
authority to review such fees.” (quoting § 78s(d)(1)))
(emphasis added). Still, the Commission argues that, whether
dicta or not, “it is difficult to perceive how the Commission
acted arbitrarily or capriciously in following the path this Court
invited it to take.” SEC’s Resp. Br. at 37. This gets things
backwards, as it was the Commission who proposed Section
19(d) as a potential avenue of relief. Because the lawfulness of
allowing challenges to fee rules under Section 19(d) was not a
question before us, we had no occasion to decide it.
With the question now squarely before us, we turn to the
relevant text.
First, Section 19(d)(1) reads:
If any [SRO] imposes any final disciplinary
sanction on any member thereof or participant
therein, denies membership or participation to
any applicant, or prohibits or limits any person
in respect to access to services offered by such
organization or member thereof or if any
[SRO] . . . imposes any final disciplinary
sanction on any person associated with a
member or bars any person from becoming
associated with a member, the [SRO] shall
promptly file notice thereof with the appropriate
regulatory agency for the [SRO] and (if other
than the appropriate regulatory agency for the
[SRO]) the appropriate regulatory agency for
such member, participant, applicant, or other
person. The notice shall be in such form and
contain such information as the appropriate
regulatory agency for the [SRO], by rule, may
10
prescribe as necessary or appropriate in
furtherance of the purposes of this chapter.
15 U.S.C. § 78s(d)(1).
Second, Section 19(d)(2) allows for Commission review
of an exchange’s action under Section 19(d)(1):
Any action with respect to which a[n] [SRO] is
required by [Section 19(d)(1)] of this subsection
to file notice shall be subject to review by the
appropriate regulatory agency for such member,
participant, applicant, or other person, on its
own motion, or upon application by any person
aggrieved thereby filed within thirty days after
the date such notice was filed with such
appropriate regulatory agency and received by
such aggrieved person, or within such longer
period as such appropriate regulatory agency
may determine.
Id. § 78s(d)(2).
The Respondents’ theory of review goes something like
this: The Exchanges’ fee rules are a “limit[ation]” on SIFMA’s
“access to services,” id. § 78s(d)(1), and SIFMA is an
“aggrieved person” that can seek review of the rule changes
before the Commission, id. § 78s(d)(2). The Respondents
provide no examples (other than this case, of course) of the
Commission ever having allowed a challenge to generally-
applicable fee rules to proceed under this theory, but they argue
that the Commission’s interpretation is a permissible one. The
Exchanges, meanwhile, maintain that Section 19(d)’s text and
structure make clear that it governs only an SRO’s “quasi-
adjudicatory” proceedings “directed at a specific person or
11
entity.” NYSE Arca’s Opening Br. at 27. The Exchanges are
closer to the mark.
It is conceivable that a fee may act as a “limit” on access
to services under Section 19(d). But not every fee is, by mere
virtue of being a fee, challengeable as a “limit” on access to
exchange services under Section 19(d). Rather, we hold that
for a fee rule to be challengeable under Section 19(d), it must,
at a minimum, be targeted at specific individuals or entities.
We reach this conclusion for several reasons.
First and foremost, the text of Section 19(d) does not
evince an intent by Congress to allow challenges to generally-
applicable fee rules.
Indeed, Section 19(d) makes no mention of fees at all.
Unlike Section 19(b), which governs the effectiveness of rule
filings and expressly references the “changing [of] a due, fee,
or other charge,” 15 U.S.C. § 78s(b)(3)(A), Section 19(d) does
not mention fees, see id. § 78s(d). And “[w]here Congress
includes particular language in one section of a statute but
omits it in another[,] it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” Keene Corp. v. United States, 508 U.S. 200, 208
(1993) (cleaned up).
Even assuming, however, that some fees are challengeable
under Section 19(d), the text indicates that they must at least be
targeted at specific people. The Respondents maintain that any
fee rule, even a universally applicable one, is challengeable
under Section 19(d) as a limitation on services. See SEC’s
Resp. Br. at 29-30 (arguing that the term “limits” on “access to
services” includes fees, because “[i]n common parlance,
placing conditions—such as costs, fees, or prices—upon a
person’s access to something is said to limit that access,” and
12
that “[c]harging fees ‘curtail[s] or reduce[s] in quantity or
extent’ access to the fee-based services” (some alterations in
original) (quoting WEBSTER’S NEW COLLEGIATE DICTIONARY
667 (1977))); SIFMA’s Resp. Br. at 21 (“The Exchanges never
explain why Congress would be less concerned with SRO
action limiting access for an entire group than with action
limiting it for a specific party.”). We think the text says
otherwise.
Section 19(d) speaks to “limits [on] any person” with
regard to accessing the SRO’s services. See 15 U.S.C.
§ 78s(d)(1) (emphasis added). Moreover, a generally-
applicable fee rule does not resemble any of the specific actions
enumerated in Section 19(d), which all involve measures
directed at specific individuals or entities. See id. (allowing
challenges to “any final disciplinary sanction on any member
thereof or participant therein” or on “any person associated
with a member”; the “deni[al of] membership or participation
to any applicant”; or the “bar[ring of] any person from
becoming associated with a member”). Under the principle
of ejusdem generis, “where general words follow an
enumeration of specific items, the general words are read as
applying only to other items akin to those specifically
enumerated.” Harrison v. PPG Indus., Inc., 446 U.S. 578, 588
(1980). Here, the term “limits” is a “general word[]” that
“follow[s] an enumeration of specific” actions, and should thus
be “read as applying only to other [actions] akin to those
specifically enumerated.” See id.; cf. United States v. Williams,
553 U.S. 285, 294 (2008) (under the canon of noscitur a sociis,
“a word is given more precise content by the neighboring
words with which it is associated”).
The Commission’s counterarguments are not persuasive.
The Commission contends that the term “limits” would have
no substantive meaning if market-data fees were not included.
13
See SEC’s Resp. Br. at 30 (arguing that excluding generally-
applicable fees from the purview of Section 19(d) would treat
“limits” as coextensive with “prohibits” and thus render the
term “limits” surplusage). But courts have interpreted this term
to apply outside the context of fees, such as to an SRO’s
decision to cut off phone service. See, e.g., MFS Sec. Corp. v.
New York Stock Exch., Inc., 277 F.3d 613, 620 (2d Cir. 2002)
(“The NYSE’s revocation of MFS’s membership and its
actions to cut off phone service manifestly limited MFS’s
access to services.”). In other words, an SRO can, without
imposing fees, “limit” a customer’s access to its services in
such a way that isn’t a complete “prohibit[ion]” on access. See
15 U.S.C. § 78s(d).
The Commission also relies on National Ass’n of
Securities Dealers, Inc. v. S.E.C., where we held that “the
Commission [had] quite properly concluded” that a securities
information processor’s challenged fee proposal “constituted
an improper prohibition or limitation of access to services”
under Section 11A(b)(5). 801 F.2d 1415, 1419 (D.C. Cir.
1986) (interpreting 15 U.S.C. § 78k-1(b)(5)). While the
Commission is correct that Section 11A(b)(5) employs
language similar to Section 19(d)’s, compare § 78k-1(b)(5),
with § 78s(d), the Commission’s jurisdiction was not at issue
in that case, see Sec. Dealers, 801 F.2d at 1416-22. Moreover,
Securities Dealers involved an SRO’s decision to impose a fee
after one-on-one negotiations with the only subscriber that
would have paid the fee, and there was a particularized
showing that it made no economic sense for that vendor to pay
the fee. See id. at 1417, 1419-21. Thus, Securities Dealers is
consistent with our holding here.
Looking beyond the text, the structure of the Exchange Act
renders the Commission’s interpretation unreasonable. See
Util. Air Regulatory Grp., 573 U.S. at 321.
14
For one thing, an exchange’s notice obligations under
Section 19(d) would be unworkable with regard to generally-
applicable fee rules. Section 6(d) requires that, in advance of
any “limit[ation]” on “access to services,” the exchange must
“notify such person of, and give him an opportunity to be heard
upon, the specific grounds for denial, bar, or prohibition or
limitation under consideration[.]” 15 U.S.C. § 78f(d)(2)
(emphasis added). And, under Section 19(b), unless the
Commission takes action within the prescribed time limits, a
proposed rule change “shall take effect upon filing,” id.
§ 78s(b)(3)(A), and “may be enforced by [the SRO] to the
extent it is not inconsistent with” the Exchange Act, id.
§ 78s(b)(3)(C). If we construed the statute to mean that every
generally-applicable fee rule could be a “limit[ation]” on
“access to services,” an exchange would be required to provide
notice to every person to whom the fee could conceivably
apply, potentially including those who have not previously
purchased but might be considering the depth-of-book products
affected. See id. Providing such individual notice seems
nonsensical and likely impossible.
The Commission insists that the Exchanges could satisfy
their Section 19(d) notice obligations merely by complying
with the filing requirements in Section 19(b)(3)(A), 15 U.S.C.
§ 78s(b)(3)(A), because “parties receive notice of the content
and basis of immediately effective fee rules when they are filed
under Section 19(b).” SEC’s Resp. Br. at 35. Not so.
It goes without saying that an immediately-effective fee
change cannot plausibly be “under consideration,” see 15
U.S.C. § 78f(d)(2), and publication of the notice in the Federal
Register and on the Commission’s website cannot provide an
“opportunity to be heard” on an already-enforceable fee, see id.
The Exchanges are thus correct that, to comply with its notice
15
obligations under Section 19(d), an exchange considering a
generally-applicable fee rule would need to “contact customers
that it believe[s] might not be able to afford a product to inform
them that their access to the product would be limited” before
filing the fee rule and explain to them the “specific grounds”
for that limitation. Nasdaq’s Opening Br. at 29. We agree that
Section 19(d) cannot be reasonably read as requiring exchanges
to undertake such action prior to filing a generally-applicable
fee rule.
In addition to unworkable notice obligations, reading
Section 19(d) to allow challenges to generally-applicable fee
rules would be incompatible with the statutory remedy.
Under Section 19(f), if the Commission concludes that an
SRO’s Section 19(d) limitation violates the Exchange Act, the
Commission must provide a two-part remedy. First, it must
“set aside the action” of the SRO. 15 U.S.C. § 78s(f). Second,
it must “grant [the aggrieved] person access to [the SRO’s]
services.” Id. This second part is where the Commission runs
into trouble. The Commission is evaluating a general fee
increase here. Short of providing free access to depth-of-book
data, which none of the parties contend is an appropriate
remedy, the Commission cannot “grant access” to all
individuals affected by the fee increase. That is so because the
Commission required no evidence that the fee increase actually
limited any entities’ access to the Exchanges’ services. Indeed,
in its order reversing the ALJ’s merits decision, the
Commission “set aside” the fees at issue, J.A.78, but stopped
short of “grant[ing] . . . access” to the services covered by the
fees at the old price, probably because doing so is outside the
scope of Section 19(f), 15 U.S.C. § 78s(f). As Nasdaq correctly
explains, “[t]his disposition evidently means” that the
Exchanges must “give the[ir] product[s] away without
charging distributor or direct access fees, submit a new
16
proposed fee (inevitably inviting another denial-of-access
application from SIFMA), or cease offering [the products]
altogether.” Nadsaq’s Opening Br. at 31.
In short, based on the text and structure of the Exchange
Act, we conclude that Section 19(d) is not available as a means
to challenge generally-applicable fee rules. The text
contemplates action targeted at individuals. And under the
Respondents’ reading, SROs would be required to undertake
onerous Section 6 proceedings, with the specter of further
proceedings under Section 19(d) in order to implement a
generally-applicable change in fees. We think that such a
scheme would be at odds with the Dodd-Frank Act’s objective
of “[s]treamlining” the filing procedures. See S. REP. NO. 111-
176, at 106 (2010).
Before concluding, we note that our decision today is
consistent with the presumption favoring judicial review of
agency action. See NetCoalition II, 715 F.3d at 352. SIFMA
argues that “if review [of market-data fees] were unavailable
under Section 19(d), the Commission could insulate [them]
from any judicial review simply through inaction.” SIFMA’s
Resp. Br. at 19-20. But this fear is unfounded. As the
Respondents acknowledged during oral argument, Oral Arg.
Rec. at 1:11:47-1:12:25, 1:50:21-1:50:40, a party may petition
the Commission under Section 19(c) to amend an SRO’s fee
rule through notice-and-comment rulemaking. 15 U.S.C.
§ 78s(c). 2 If the Commission denies the petition to amend, the
party may petition our Court for review. Id. § 78y(a)(1); Ass’n
of Inv. Brokers v. S.E.C., 676 F.2d 857, 864 (D.C. Cir. 1982)
2
The Commission also acknowledged at oral argument that it may
informally seek additional information from exchanges before
deciding whether to institute formal notice-and-comment
rulemaking. Oral. Arg. Rec. at 1:25:10-1:35:10.
17
(explaining that our Court may “review agency action,
including an agency’s denial of a rulemaking petition” filed
under 15 U.S.C. § 78s(c) (internal quotation marks omitted));
WWHT, Inc. v. F.C.C., 656 F.2d 807, 809 (D.C. Cir. 1981)
(holding that “an agency’s denial of a rulemaking petition is
subject to judicial review” unless “there is evidence of a clear
and convincing legislative intent to negate review” (internal
quotation marks omitted)). 3 To be sure, we apply an
“extremely deferential standard of review” to such petitions.
Timpinaro v. S.E.C., 2 F.3d 453, 461 (D.C. Cir. 1993) (internal
quotation marks omitted). But if Congress would prefer more
rigorous judicial review of the Commission’s refusal to review
generally-applicable fee rules, it can amend the statute.
III.
Accordingly, we grant the petitions for review, vacate the
Commission’s decision, and remand for proceedings consistent
with this opinion.
So ordered.
3
In addition, even though the Commission’s decisions not to suspend
fee rules within 60 days are not reviewable under 15 U.S.C.
§ 78s(b)(3)(C) and NetCoalition II, the Commission advised at oral
argument that it now commonly does suspend fee rules. Oral Arg.
Rec. at 1:36:24-1:36:42 (stating that the agency suspends fee rules
“with some frequency”). When it does so, the Commission must
institute proceedings under 15 U.S.C. § 78s(b)(2)(B) to approve or
disapprove the rule change. Id. § 78s(b)(3)(C). Once the
Commission issues an order approving or disapproving the proposed
fee rule, a person aggrieved by that final order could obtain judicial
review under 15 U.S.C. § 78y(a).