02-28002. Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change and Amendment No. 1 Thereto by the New York Stock Exchange, Inc. Proposing to Increase the Maintenance Charge for Cellular Phones Used on ...

October 29, 2002.

Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),^[1] and Rule 19b-4 thereunder,^[2] notice is hereby given that on October 16, 2002, the New York Stock Exchange, Inc. (“NYSE” or “Exchange”) submitted to the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Exchange filed Amendment No. 1 to the proposed rule change with the Commission on October 28, 2002.^[3] The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons.^[4]

I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change

The Exchange proposes to increase the maintenance charge for cellular phones used on the floor of the Exchange.

The text of the proposed rule change appears below. New text is in italics. Deleted text is in brackets.

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NYSE 2002 Price List

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Facility and Equipment Fees

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Schedule of Annual Charges, unless otherwise noted

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Cellular Phones
Phone and Headset	No Charge.
Ongoing Maintenance—per phone	$[2,100.00] 2,400.00(3).

Notes:

(1) ITPN “User” is a member or person associated with a member, who has been entitled to receive one or more third party market data vendor service offerings via the Exchange's Integrated Technology Program Network.

(2) Plus appropriate sales tax where applicable.

(3) Plus sales tax.

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II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change

In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change

1. Purpose

The Exchange has a charge for cellular phones as part of its facilities and equipment fees.^[5] The charge has been the same since 1994. The Exchange proposes to increase the charge from $2,100.00 to $2,400.00 per year to help cover the costs of the recent upgrade to industry standards by Verizon Wireless to the NYSE Broker Mobile Phone System. The Exchange represents that this upgrade provides improved voice quality, longer battery life, smaller and lighter handsets, and improves technical support, which will in turn improve the Exchange's service level. The charge by its nature will continue to apply only to membership organizations that operate on the floor of the Exchange and utilize the NYSE Broker Mobile Phone System.

2. Statutory Basis

The NYSE believes that the proposed rule change, as amended, is consistent with section 6(b) of the Act,^[6] in general, and furthers the objectives of section 6(b)(4) of the Act,^[7] in particular, which requires that an exchange have rules that provide for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities.

B. Self-Regulatory Organization's Statement on Burden on Competition

The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others

The Exchange has neither solicited nor received written comments on the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

The foregoing rule change establishes or changes a due, fee, or charge imposed by the Exchange and, therefore, has become effective upon filing pursuant to section 19(b)(3)(A)(ii) of the Act ^[8] and Rule 19b-4(f)(2) thereunder.^[9] At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purpose of the Act.^[10]

IV. Solicitation of Comments

Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to File No. SR-NYSE-2002-29 and should be submitted by November 25, 2002.

For the Commission, by the Division of Market Regulation, pursuant to delegated authority.^[11]

Margaret H. McFarland,

Deputy Secretary.

Footnotes

1.  15 U.S.C. 78s(b)(1).

2.  17 CFR 240.19b-4.

3.  See letter from Darla C. Stuckey, Corporate Secretary, NYSE, to Sapna Patel, Attorney, Division of Market Regulation, Commission, dated October 21, 2002 (“Amendment No. 1”). In Amendment No. 1, the Exchange clarified that the proposed rule change has become effective upon filing pursuant to section 19(b)(3)(A)(ii) of the Act and Rule 19b-4(f)(2) thereunder. In its filing, the NYSE had incorrectly referred to Rule 19b-4(e)(2) under the Act.

4.  For purposes of determining the effective date and calculating the 60-day abrogation date, the Commission considers October 28, 2002, the date NYSE filed Amendment No. 1, to be the effective date of the proposed rule change.

5.  See Securities Exchange Act Release No. 34395 (July 18, 1994) 59 FR 38007 (July 26, 1994).

6.  15 U.S.C. 78f(b).

7.  15 U.S.C. 78f(b)(4).

8.  15 U.S.C. 78(s)(b)(3)(A)(ii).

9.  17 CFR 240.19b-4(f)(2).

10.  For purposes of determining the effective date and calculating the 60-day abrogation date, the Commission considers October 28, 2002, the date NYSE filed Amendment No. 1, to be the effective date of the proposed rule change.

11.  17 CFR 200.30-3(a)(12).