DTCC characterizes that assertiveness as impermissible anticompetitive behavior, in effect imprinting the “closed” practices from the futures world onto the new “open access” market structure for swaps. DTCC, in its letter to the CFTC opposing the CME’s proposed Rule 1001 -- which ties the choice of using CME’s Swaps Data Repository to the decision to use CME’s clearinghouse for a swaps trade -- dramatically describes its position as protecting “the integrity of the Dodd-Frank Wall Street Reform and Consumer Protection Act’s (‘Dodd-Frank Act’) primary objectives.”
[Related: “Behind the Lines of the Dodd-Frank Reporting Wars”]
The dispute over data storage raises a number of questions about whether non-competitive practices long associated with the futures industry can also become a feature of the OTC derivatives space as well. The answer seems to be yes, as traditional restrictions on anti-competitive business practices meet a complex new market structure. Given a wide-ranging statutory scheme such as Title VII of Dodd-Frank, which is enforced by a fully empowered regulator -- the CFTC -- the regulator will decide competition issues in light of how they impact the regulation of the markets and the safety of the investing public. Competition concerns will not stand on their own in a black-and-white determination of whether a new practice will be allowed in the absence of a statutory mandate.
In the interest rate space, CME will likely clear the large majority of swaps due to the benefits its customers will receive from margining their swaps alongside CME’s pool of listed futures. Language in the proposed rule, which requires approval by the CFTC, gives a customer discretion to ask the CME to forward the same proprietary swap information to another SDR; but the rule is silent about whether a customer that requests its data be moved will incur extra costs in doing so, and thus be deterred from asking.
In the murky waters around competition in the derivatives space, the CFTC faces two questions in deciding on Rule 1001: (1) Can the CFTC better regulate the markets where most data -- at least for interest rate futures and swaps -- is retained by a single entity, in this case the CME? And (2), can CME’s cost structure be designed to protect users of its clearing services from being disadvantaged by using the data sharing arrangement called for by Rule 1001?
Competition among SDRs is subordinated in Dodd-Frank to regulatory interests. In the case of SDR regulation, Dodd-Frank empowers the CFTC to fashion rules as it sees fit to meet its regulatory burden. The statute even empowers the Commission to force any or all SDRs to report their data into a centralized SDR, should that help it better regulate the markets (7 USC §24a(a)(c)(4)(a)). It is almost inconceivable that the Commission would not be better off in fulfilling its regulatory duties with a more concentrated deposit of swaps data than a more dispersed one, especially given the weak customer concerns in maintaining robust competition in data storage.
Unfortunately for DTCC’s position, the anti-competitive issues that it raises are not particularly strong in the SDR context. DTCC’s argument over data storage is a fight between competitors and their allies over issues that have little, if any, bearing on the well-being of customers in the derivatives markets. Derivative customers have no commercial interest in where their data is stored for review by the CFTC, other than how much storage will cost at any particular SDR. In contrast, customers have strong interests in choosing one SEF over another, or one DCO over another, because execution and clearing services are integral components of what makes a trade successful or not.
As to the issue of cost -- which is the only customer interest at stake in this decision -- the CFTC could easily mitigate such concerns in order to obtain a better regulatory result by conditioning Rule 1001 on the CME waiving any fee it charges for SDR services, including transfer of data, to a customer requesting a transfer. (To glimpse the type of power that regulators have in controlling fees to maintain a “fair and orderly” market, consider the SEC’s imposition of a fee cap of 30¢ on exchange fees in securities markets.)
DTCC has direct experience from its recent past in a conflict between competitive concerns and regulatory interests. In the situation in mind, DTCC (through its subsidiary FICC) received SEC approval to partner exclusively with a single exchange to offer collateral reductions for that exchange’s futures contracts when offset by U.S. Treasury Securities held in DTCC’s utility clearing business. The SEC allowed DTCC to move forward because it saw a regulatory benefit, notwithstanding the anticompetitive issues. (ELX, of which I was then CEO, vigorously opposed DTCC’s proposed rules in that venture). Regulatory interests -- even when not compelling -- can overcome competitive concerns where markets are subject to a regulatory agency’s oversight under broad statutory powers, as is the case with swaps regulation. The CFTC, like the SEC,has the same opportunity to evaluate this case on the merits of what is best for the market -- more aggregation of data in fewer SDRs, or more fragmented availability of data in more SDRs.
In its role as the market regulator, the CFTC’s main focus will be on whether Rule 1001 will enhance its ability to act upon trade and position information for the benefit of the public.DTCC’s anti-competitive concerns are indeed substantive, but they will not be evaluated in a vacuum. Rather, they will be decided, and likely disposed of, in light of regulatory interests, the relative lack of customer harm, as well as moving the pace of Dodd-Frank regulation forward in a sensible and effective way.
Neal L. Wolkoff was formerly the Chairman and CEO of the American Stock Exchange, COO of the New York Mercantile Exchange, and CEO of ELX Futures, L.P. He is currently an independent consultant and Of Counsel with the law firm Richardson & Patel.