The Securities and Exchange Commission decided today
to continue to allow broker-dealers to provide fee-based services,
pending the adoption of permanent rules.
SEC Chairman William Donaldson said the commission
will adopt permanent rules that will clarify the conditions under which
fee-based brokers can operate outside the Advisers Act.
"We propose to clarify the obligation of a
broker-dealer to comply with the Advisers Act when the broker-dealer
exercises investment discretion with respect to an account, and when
the broker-dealer performs certain financial planning and other
services," Donaldson said.
It was unclear whether the action by the SEC will be
enough to satisfy groups such as the Financial Planning Association,
which has sued the SEC because of its objections to the broker-dealer
exemption rule. The FPA also protested the fact that the exemption has
never been formally approved by the SEC, but instead been put into
practice as a "no-action" rule. After the lawsuit was filed, the SEC
promised to address the issue by the end of this year.
The FPA, as well as other advisor
and consumer groups, have argued the exemption obscures the difference
between investment advisors and brokers, leading to commission-driven
agents presenting themselves as RIAs.
"This represents some progress, but the SEC still
has a long way to go," said Duane Thompson, the FPA's advocacy group
director.
Thompson says the issue will become clearer in the
spring, when the SEC is expected to clarify its definition of advisory
service that is "solely incidental" to brokerage activity-namely, the
type of investment advice that will allow brokers to remain free of
Advisers Act regulations.
"We're hopeful at a minimum that they will really
wrestle with this problem of what is incidental and what it is not,"
Thompson said. "It's such a messy, messy area we're worried that it's
going to leave room for mischief by a creative securities lawyer."
SEC To Clarify Broker Exemption
December 22, 2004
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