Sep. 1, 2026
To the Securities and Exchange Commission, Division of Investment Management: I am submitting this comment regarding the Commission’s ongoing review of Information Providers under the Investment Advisers Act of 1940 (Release No. IA-6050; File No. S7-18-22: Request for Comment on Certain Information Providers Acting as Investment Advisers). As the Commission correctly highlighted in its Request for Comment, the line between publishing impersonal financial data (historically protected under the publisher’s exclusion in Lowe v. SEC) and providing actionable investment advice has blurred substantially. Recent index consultation proposals by major providers—such as MSCI’s proposed exclusion of Digital Asset Treasury companies from broad benchmark indexes—demonstrate the growing extent of discretionary management: 1. Discretionary Capital Allocation: Index providers are increasingly inventing specialized, non-objective screening criteria designed to exclude specific corporate treasury strategies. When an index committee exercises qualitative discretion to remove a liquid, GAAP-compliant public company, it mechanically forces billions of dollars in passive ETF and 401(k) assets to buy or sell that security. 2. Functional Role as Fiduciaries: When an entity’s subjective decisions directly dictate the portfolio rebalancing and trade execution of registered investment companies, that entity is not merely reporting historical market performance—it is exercising de facto discretionary portfolio management. 3. Market Impact and Investor Protection: Retail and institutional investors allocating to "passive broad-market index funds" expect unbiased, market-cap-weighted exposure. Discretionary index gerrymandering subjects investors to the un-fiduciary policy preferences of private index committees without the regulatory disclosures, conflict-of-interest checks, or duties of care mandated by the Advisers Act. I urge the Commission to proceed with formal rulemaking clarifying that index providers exercising qualitative or bespoke discretion over the inclusion and exclusion of securities must register as Investment Advisers and be held to corresponding fiduciary standards. Respectfully submitted, James A Stikeleather, D.B.A., M.B.A. Individual Retail Investor & Portfolio Allocator Retired Director, Doctor of Healthcare Administration Associate Professor, Healthcare Administration Lake Erie College of Osteopathic Medicine Adjunct Professor, Information Systems Decision Sciences University of South Florida, MUMA College of Business jstikeleather@lecom.edu (educational) stikeleather@usf.edu (educational) james.stikeleather@gmail.com (professional)