Backed by the trading community, House Rules Committee Chairman Gerald Solomon (R-N.Y.) is lining up support for his bill on Section 31 transaction fees. In the waning days of the current session of Congress, Solomon engaged House Commerce Committee Chairman Thomas Bliley (R-Va.) in dialogue about the fees on the House floor. The bill, H.R. 4213 co-sponsored by Rep. Robert Menendez (D-N.J.), seeks to cap the total amount of fees the Securities and Exchange Commission can accumulate on the sale of stocks. Earlier, Solomon presented his case to a Republican outfit known as the Conservative Action Team.

Another bill, sponsored by Rep. Michael Forbes (R-N.Y.) would seek to slash the level of Section 31. In an interview, he said the bill is of significant importance to the trading community in his congressional district.

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One obstacle holding back Jersey City-based OptiMark Technologies' plan to go live this fall is approval by regulators that would allow an electronic link between its superanonymous trade system and the Intermarket Trading System (ITS). OptiMark's launch has been delayed at least a month, in part because of objections by the New York Stock Exchange to the ITS link.

For its part, the Big Board has proposed that orders entered into OptiMark be held at the PCX for 15 seconds before hitting the ITS. The Big Board had threatened to petition the Securities Industry Automated Corporation to refuse OptiMark business if the Big Board proposal was ignored. Another question for OptiMark hovers over the agreement between the PCX and the Chicago Board Options Exchange to merge. As part of the agreement, the PCX would exit from the stock-trading business. If so, does that leave OptiMark without its own partner? "We don't really know if the Pacific will get out of the stock business," said OptiMark Senior Vice President Alan Danson. "If OptiMark is successful, the question really is, Why would anybody want to get rid of it? [OptiMark] is of great value to the Pacific.'"

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How long can electronic communications networks (ECNs), such as Reuters Holdings' Instinet keep trading interest at its current level of anonymity? That's the question on traders lips in the wake of a new Nasdaq proposal which set off alarm bells in the trading community.

The Nasdaq proposal could curb the ability of institutions to trade large blocks of shares while keeping a portion of the order in reserve. Under the proposal, Nasdaq wants to implement a rule requiring the full block order to be executed even if some of the trade is not worked.

What's more, Nasdaq wants ECNs to provide it with more information on their customers to help resolve operational and trading problems. That proposal has angered some officials at ECNs who note that Nasdaq is seeking to develop its own ECN, or so-called central limit order book.

Nasdaq market makers have stepped up their fight against new primary market-maker standards proposed by the National Association of Securities Dealers. Traders, in particular, have singled out the NASD's proposed net-liquidity rules, arguing that many market makers would be unable to fulfill those standards for a major proportion of their stocks.

A group of prominent trading firms, including Jersey City's Sherwood Securities and Herzog, Heine, Geduld, New York-based Bernard L. Madoff Investment Securities and San Francisco's Charles Schwab & Co., are working together to press the Securities and Exchange Commission to reverse the NASD plan.

In a letter, the firms outlined their own counterproposal. The Securities Industry Association's trading committee and the NASD's Quality of Market's Committee have been huddling on the NASD's proposal, hoping to hammer out a compromise plan, insiders said.

Meanwhile, trading sources expect the NASD to refile with the SEC parts of its plan to implement an order-delivery and exeuction system. The expectation is that the limit-order-book feature would be detached under the new proposal, from other parts of the system. The revamped plan is favored by many market makers once it includes a trade-through rule.

Pressure is building in the current session of Congress for legislation that would bring widespread relief from unpopular transaction fees on Nasdaq trades.

The spotlight on equity-transaction fees is largely the outcome of intense lobbying by a coalition of exchanges and trade groups, led by the Security Traders Association.

The fees on Nasdaq and listed trades, enacted under Section 31 of the Securities Exchange Act of 1934, amount to 1/300th of one percent on individual equity transactions. That means, in effect, that a riskless principal trade on Nasdaq is subject to double counting because a market marker may buy a stock and quickly resell it on an agency basis.

By one estimate, the fee collections resulted in the Securities and Exchange Commission accumulating in excess of 300 percent of its budget over the past two years. The Congressional Budget Office, meanwhile, estimates that the agency will collect more than $550 million this year levied under Section 31(a) of the act (based on current trade-volume projections).

With the National Association of Securities Dealers favoring a reduction in the amount levied on riskless principal trades, Congress is currently mulling two separate bills that would go even further.

One bill, introduced by Rep. Gerald Solomon (R-N.Y.) and Rep. Robert Menendez (D-N.J.), the Savings and Investment Relief Act of 1998, would cap annual collections of transaction fees assessed on Nasdaq and exchange-listed stocks. A similar cap would be applied to fees collected on off-exchange trades of last-sale-reported securities.

For fiscal year 1999, fee collections on trades and registrations would be limited to $150 million, while fees for off-exchange trades would be held to $120 million under the bill. Future caps would be adjusted for inflation.

Under the bill, fee collections for the SEC would "simply shut off" when the agency had met its annual requirements, Solomon explained. Each national securities exchange and securities association would be required to enact rules to comply with the legislation.

Solomon's support is viewed as significant, because he chairs the House Rules Committee, a post that gives him considerable law-making powers. "He did not introduce [the bill] just for show," Justin Daly, Solomon's counsel, told Traders Magazine. The initial response to the bill was better than expected, Daly added.

Solomon, himself a former Wall Street executive, makes no bones about his attitude to the transaction fees. He is particularly incensed about 31(a) fees on Nasdaq, telling the House they are "ridiculous," having been transformed from a user fee to a "huge general tax."

The bill is "intended to bring total SEC fee collections, which had already grown to significantly exceed the commission's budget, more in line with its costs," he reminded his House colleagues. The 31(a) fees on Nasdaq were authorized under the National Securities Markets Improvement Act of 1996.

Solomon stressed that flexibility is the hallmark of his bill. If the SEC does not collect enough revenue to cover its annual budget, the House and the Senate Appropriations Committee can temporarily raise the fee limitations through an appropriation act.

The Solomon bill has been referred to the House Commerce Subcommittee on Finance and Hazardous Materials. At press time, the panel, which is chaired by Rep. Michael Oxley (R-Ohio), had not scheduled a hearing on the bill.

Separately, Rep. Michael Forbes (R-N.Y.) introduced a 31(a) bill that would cut in half the amount Nasdaq traders pay on each transaction. Forbes sits on the House Appropriations Subcommittee on Commerce, Justice, State and Judiciary, which has jurisdiction over SEC funding.

Although the approaches taken in both bills are different, each nonetheless represents energetic efforts to enact legislation before the current congressional session ends this month.

Significantly, Forbes' approach may be the most workable, insofar as a cap on 31(a) fees outlined in the Solomon and Menendez bill could be problematic. With a cap on fees, some firms might be tempted to delay certain transactions in order to avail themselves of a fee exemption triggered by the cap.

In the Senate, a Republican source contends that lawmakers would like to see 31(a) legislation pass in the House before they commit themselves to a similar bill.

According to the source, Sen. Alfonse D'Amato (R-N.Y.), Sen. Paul Coverdell (R-Ga.) and Sen. Connie Mack (R-Fla.) would be first to demonstrate their support on the heels of a House bill. Sen. Phil Gramm (R-Texas) previously expressed his view that the fee is a tax on capital.

Meanwhile, the filing of a new NASD rule proposal with the SEC for 31(a) relief is still pending as NASD officials and the SEC's Division of Market Regulation negotiate an acceptable framework, sources said. "It's a high-priority, complex issue," an NASD spokesman said.

In a dispute over the NASD's proposed integrated order-delivery and execution system, the National Association of Securities Dealers is under renewed attack from Reuters Holdings' Instinet.

The latest salvo was fired in a hotly-worded comment letter from Instinet to the Securities and Exchange Commission, accusing the NASD of "flagrant dereliction of the NASD's obligation as a self-regulatory organization to promote informed and independent public comment."

That reference is to a May 1 letter signed by Cherilyn Cotter, Nasdaq's director of business development, and sent to the principals of several large NASD member firms stating that "it is important that you respond to this [new Nasdaq] proposal that Nasdaq has placed before the SEC."

Instructions

According to Instinet's June 5 letter, Cotter's letter was "coupled with a form of comment letter supporting the proposal that the recipients are instructed to mail to the commission. Heeding this instruction, several firms have signed and submitted the form letter for inclusion in the public file."

Among the respondents, Instinet named executives at four major Wall Street firms: Frederick Frank, managing director, Lehman Brothers; John Kallop, managing director, Prudential Securities, John McNulty, a partner at Goldman, Sachs & Co.; and Scott Powell, senior vice president, PaineWebber.

The letters state that the firms represented "specifically support" allowing orders from one share to 999,999 shares to be entered, based upon the ability of the market maker to display actual size in their quotations; the full display of all orders entered into the limit-order book; anonymity for firms entering orders in the file; direct-sponsored access by institutions and individual investors; and a process to match orders in a limit-order book at the beginning of each trading day.

"Such tactics could be viewed as regulatory intimidation, and have undermined the legitimacy of the comment process associated with this proposal," complained Douglas Atkin, chief executive of Instinet International, who signed the latest Instinet comment letter. He added that the NASD's "coercive tactics undoubtedly influenced the behavior of all recipients."

Citing the SEC's highly-publicized August 1996 21(a) report on allegations of price-fixing on Nasdaq, Atkin stated that given the "NASD's past practices towards member firms that do not share its vision of proper market structure and behavior, it is hard to imagine that member firms who received Nasdaq's letter were not influenced in their approach to commenting on this proposal."

Urges Withdrawal

Atkin's letter urged the NASD to withdraw and resubmit its controversial proposal for "fresh public comment that is uncorrupted by the NASD and Nasdaq attempts to elicit correct comment from market participants."

In a telephone interview with Traders Magazine, Atkin stood behind his harsh criticism of the NASD, and claimed it is using its "regulatory power to create a monopoly brokerage service. They are targeting brokers who use a lot of high technology, such as Instinet, and other electronic communications networks."

Atkin went on to say that the current Nasdaq proposal is an example of a regulator creating its own brokerage firm competing with its own members.

In a comment letter dated May 8 and signed by Atkin, Instinet accused the NASD of placing "hyper-promotional," one-sided material on the Nasdaq home page, effectively forcing investors to view the information before accessing any other Nasdaq information. "Moreover, for a time the site would not allow investors to view other information until a comment letter regarding the system was e-mailed to the commission, producing literally thousands of e-mail comments," the letter stated.

"Such efforts indicate the chronic difficulty the NASD has in separating its duties as a market regulator from its desire to be a market competitor," the letter added.

The Securities and Exchange Commission is calling for changes in how investors are provided information on soft-dollar arrangements between institutions and brokers handling their investments.

An SEC official, who declined to be named, has reportedly said a pending SEC staff report examining abuses in the $1 billion soft-dollar business will recommend more public disclosure of institutions' soft-dollar arrangements.

The SEC staff is expected to state that generally, investors are poorly informed about the exact nature of soft-dollar services institutions receive from brokers.

Mutual funds, consequently, would have to provide more soft-dollar disclosure to their board of directors.

The report is said to be particularly critical of investment advisers for not providing adequate soft-dollar disclosure, and will describe possible cases of abuses.

The alleged abuses were discovered during an 18-month sweep of 250 institutions and 75 brokers that use soft dollars. At press time, the long wait for the report was nearing an end, according to published reports.

Examiners working on the report for the SEC's Office of Compliance Inspection and Examinations, reportedly did not find substantial evidence of fraud in the soft-dollar business.

However, about ten percent of the examinations are being studied for possible security-law violations, and were submitted to the SEC's enforcement division, people familiar with the probe said.

Soft-dollar arrangements are perfectly legal under federal law as long as investors receive a fair share of the rebates.

The SEC currently requires institutions to disclose its soft-dollar arrangements often for third-party research to investors. SEC staff members, however, are expected to recommend that soft-dollar disclosure rules be tightened, an SEC aide confirmed

In a typical soft-dollar arrangement, an institution will received a predetermined quantity of soft-dollar services in exchange for sending a specified amount of commission business on its listed trades.

The National Association of Securities Dealers has requested that better access to the Intermarket Trading System be provided for New York Stock Exchange-listed quotes posted by market makers.

The ITS is the backbone of the National Market System, linking U.S. stock exchanges.

NASD President Richard Ketchum said in a filing with the Securities and Exchange Commission, dated June 18, that the current arrangement, in place since 1981, restricts NASD members' access to stocks listed on the Big Board since April 26, 1979.

"NASD members are precluded from competing on an equally-effective basis with all the other U.S. exchanges in the most actively and widely-traded securities on the NYSE," Ketchum noted.

The NASD's chances of having its petition approved may have increased since a similar plea was rejected in 1991. Last year, the SEC urged ITS members to grant NASD members better access to its network.

Still, the latest NASD effort may be an uphill climb. ITS members have in the past said the NASD must first modify how it reports its own trades before more access is granted.

A separate rule would continue to prohibit NASD member firms that are also Big Board houses from trading listed stocks off the exchange as principals, during regular trading sessions.

If the NASD is successful, third-market firms that trade listed stocks away from the Big Board may be the biggest winners. These include dealers such as New York-based giant Bernard L. Madoff Investment Securities.

At the moment, these third-market firms trade Big Board stocks listed before 1979, but do not have uninterrupted access to the ITS. These firms view the arrangement as unfair, and say that investors do not always get the benefit of the best prevailing price quotes.

Wider access to the ITS would potentially help investors in another way. Given that the order handling rules have reportedly narrowed spreads on stocks traded by market makers, the rules could eventually have a knock-on effect on listed stocks with wider NASD member access to the ITS, experts say.

Once the National Association of Securities Dealers announced its deal with Jersey City-based OptiMark Technologies, Bernard L. Madoff founder of third-market firm Bernard L. Madoff Investment Securities is reported to have said that the NASD has "come out of the closet as a major competitor."

Closeted or not, self-regulatory organizations (SROs) are undoubtedly competing with members. Given the competitive stress of preserving and expanding their market share, there is little reason to expect SROs to perform more admirably in the future.

The ability of SROs to impinge on their members' livelihood and to foster anti-competitive practices suggests that self-regulation should be more carefully circumscribed and monitored.

Nasdaq CLOB

The latest example of an SRO meddling in its members' livelihood is the proposed Nasdaq central limit-order book. The Nasdaq proposal would not only dispense the favor of sponsoring institutional access to certain firms, it would have members competing with a new Nasdaq brokerage business regulated by its affiliate. (Indeed, Nasdaq now advertises itself as a National Association of Securities Dealers company.)

The Nasdaq best bid and offer quotes on Nasdaq terminals would have the identifier NSDQ alongside quotes posted by NASD members. Nasdaq would display the depth of orders at all prices on its book. Market makers and electronic communications networks (ECNs), however, would only be permitted to display best-priced orders and quotations.

Nasdaq's product puts the NASD squarely in competition with its broker-dealer members, and with built-in trade protection, giving it advantageous terms.

Moreover, the proposed OptiMark linkage would permit interaction with orders and quotes displayed on Nasdaq including the full depth of the Nasdaq limit-order book but not all orders of competing market markers and ECNs.

When a market has moved, all orders in the Nasdaq book would have time priority over the earlier orders of ECNs, and of market makers that must update their prices after each execution.

Notwithstanding placement by the NASD of its regulatory and market peas under separate shells, the NASD has implicitly approved Nasdaq's system as a method of order routing and execution that it believes would fulfill an order-routing firm's best-execution obligations.

Since the duty of best execution is vaguely defined, broker dealers would likely seek the safety of routing customer orders to a limit-order file operated by Nasdaq, in essence the regulator, rather than having to justify alternative order-routing or execution decisions.

Ultimately, a monopoly would evolve where all orders in over-the-counter securities flow through NASD-affiliated systems. Competition is, of course, the key to innovation. But the compulsory nature of Nasdaq's limit-order book would eventually destroy competition for order flow in Nasdaq securities. Competition results in investor choice. That is often critical for investors using various execution strategies. But if a competitor is allowed to conquer its members due to a regulatory advantage, investors suffer. Their flexibility to determine the best execution in Nasdaq stocks would be diminished, forcing them to accept the Nasdaq option.

In section 11(a) of the Securities Exchange Act of 1934, Congress directed the Securities and Exchange Commission to "assure fair competition among brokers and dealers, among exchange markets, and between exchange markets and markets other than exchange markets."

Congress did not address the principle of fair competition between broker dealers and markets because true competition is impossible when that market operates under the umbrella of the competitor's SRO.

The NASD's concept of a "voluntary," or non-mandatory Nasdaq-run limit-order file is an illusion. Nasdaq's status as a subsidiary of the NASD gives it a self-regulatory character that would confer an unfair and unacceptable competitive advantage.

Other Competition

While the proposed Nasdaq limit-order book is a particularly egregious example, self-regulators competing with members is not a new phenomenon. The espousal of anti-internalization rules by stock exchanges is an example.

Although their advocacy was couched in terms of concerns about best execution of customer orders and fragmentation of markets, the exchanges are obviously aware of the volume that might be lost to their larger members.

Thus, such concerns may disguise an effort to create new artificial restraints against retail firms competing as market makers. Similarly, the off-board trading rules of exchanges prevent member firms' execution of principal transactions in listed securities (or those admitted to unlisted trading privileges) other than on an exchange.

Once again, such restrictions limit competition between exchanges and their members, as well as the NASD, thereby augmenting an exchange's transaction volume.

Likewise, the aggressive proliferation by exchanges of new trading products increases the competitive tension. Like their members, exchanges are attempting to diversify their product base as well as to protect their product market share. To do so, they must grow and generate new sources of revenue.

The advent of electronic systems that channel orders directly to automated order-routing and execution systems also gives exchanges opportunities for competitive challenges against their members. These SROs enjoy structural advantages over their membership because of their trading and clearing and settlement structure, as well as their collaborative relationship with the SEC.

The conflicts engendered by a quasi-governmental body competing with its regulated stable should be of great concern to congressional overseers.

Quote Monopoly

In a separate development, the New York Stock Exchange and the Consolidated Tape Association are asserting their rights to exploit their quote monopoly by doubling the real-time quotation fee charged to broker dealers' online business.

A challenge to this information tax by Charles Schwab & Co. brought the response that the monopoly does not have to justify the cost of the fee hike. Moreover, the stock exchanges are pressing Congress and the states to lock-in market-data charges on investors. Recently, the exchanges sought special status protections in H.R. 2652 The Collection of Information Antipiracy Act to extend antipiracy protection to quotes (in contrast to other government data bases that remain uncopyrightable and open to fair use by consumers).

Finally, the NASD's role as a competitor for market share is illustrated by its proposed amendments to NASD Rules 6530 and 6540, that would prohibit quotations on the OTC Bulletin Board of issuers that are not reporting companies (that is, companies that do not file current financial reports with the SEC pursuant to the Securities Exchange Act).

These proposals would be a dangerous step backwards to a time when markets for micro-cap securities were less transparent, more illiquid and less efficient.

Rather than combat the perpetrators of micro-cap fraud or improve the quality of the OTC Bulletin Board, the NASD appears intent on relegating smaller issuers to less transparent markets. Though its perceived responsibility in these markets may be less, the dangers to issuers and investors are far greater.

The NASD would be streamlining its operations to focus on its more profitable lines of business, commendable for a profit-seeking enterprise (which may be what it intends to become).

However, given its regulatory mission at least the mission embodied in the Securities Exchange Act this is a cynical sidestepping of a pesky problem that would relegate thousands of companies that trade on the OTC Bulletin Board to the less-automated pink sheets if they don't file financial reports with the SEC, or banking or insurance regulators.

Sam Scott Miller is a partner specializing in market regulation at the New York-based law firm of Orrick, Herrington & Sutcliffe.