September 7, 2004
Please WITHDRAW, not amend, the rule proposal as the rule is harmful to consumers by creating two different standards of conduct for persons offering financial planning services: a higher fiduciary standard for registered investment advisers and a lower one under NASD suitability rules.
The Investment Advisers Act of 1940 states that the term Investment Adviser does not include or apply to any broker or dealer whose performance of such services is solely incidental to the conduct of his business as a broker or dealer.
Any reasonable assessment of the marketing messages and collateral literature put out by the firms who argue that they should remain exempt from RIA registration will show a focus not on their investment products but rather on the advice of their counselors. Even a casual observer can see that the provision of advice has become a centerpiece of the broker-customer relationship. There is nothing whatsoever incidental about it.
The only defensible decision is to rescind the rule in its entirety.