Unchained - Unconfirmed: How SEC Chair Gary Gensler's Views on Crypto Have Changed Since His MIT Days - Ep.275
Episode Date: September 24, 2021Nik De, managing editor for global policy and regulation at CoinDesk, stops by Unconfirmed to discuss the current state of crypto regulation, including recent comments by SEC Chair Gary Gensler on sta...blecoins and why Coinbase decided to sideline its Lend product. Highlights: Nik’s biggest takeaway from Gary Gensler’s interview with the Washington Post why Nik thinks Gensler has escalated his rhetoric regarding stablecoins and DeFi how crypto exchanges are currently regulated and how that might change what it would take to convince crypto exchanges to register with the SEC whether the SEC has the purview to regulate stablecoins Nik’s thoughts on Coinbase’s Lend product and the SEC’s stance on lending products what the overall picture of crypto lending is in the US whether the SEC will go after DeFi protocols what to expect from the SEC going forward, especially with the end of its fiscal year coming up next week Thank you to our sponsors! Crypto.com: https://crypto.onelink.me/J9Lg/unconfirmedcardearnfeb2021 Digital Asset Research: https://digitalassetresearch.com Sorare: https://sorare.com Episode Links Nikhilesh De CoinDesk articles: https://www.coindesk.com/author/nikde/ Twitter: https://twitter.com/nikhileshde Content Coinbase blogs regarding Lend https://blog.coinbase.com/the-sec-has-told-us-it-wants-to-sue-us-over-lend-we-have-no-idea-why-a3a1b6507009 https://blog.coinbase.com/sign-up-to-earn-4-apy-on-usd-coin-with-coinbase-cdad79e5f5eb SEC Chair Gary Gensler Washington Post Q&A https://www.washingtonpost.com/washington-post-live/2021/09/21/transcript-path-forward-cryptocurrency-with-gary-gensler/ Brian Armstrong tweet storm https://twitter.com/brian_armstrong/status/1435439291715358721 BlockFi and Celsius overview https://www.coindesk.com/policy/2021/09/17/3-states-alabama-securities-commission-also-claims-celsius-violated-securities-laws/ Read my latest Medium post, “The Reason Crypto Regulation Is Turning Out to Be So Difficult,” which takes take a deeper dive into some of the topics addressed in this pod :) https://medium.com/@laurashin/the-reason-crypto-regulation-is-turning-out-to-be-so-difficult-788cc134958d Learn more about your ad choices. Visit megaphone.fm/adchoices
Transcript
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Today's guest is Nick Day, managing editor for global policy and regulation at CoinDesk.
Welcome, Nick.
Hi, thank you for having me.
So there's been a lot of regulatory news this week.
Let's start with SEC Chair Gary Gensler's Q&A with the Washington Post about crypto.
What were the main takeaways from that discussion?
Yeah, Gensler kind of repeated a lot of his talking points,
but what really struck me was near the end,
he kind of implied that he doesn't see cryptocurrencies
or at least some types of cryptocurrencies lasting in the long term,
which really almost feels like an opposite view to what he said
when he was a lecturing on crypto at MIT.
At the time, he was talking about crypto as a change catalyst,
as something that will kind of define finance in the future.
But now he's a regulator, it feels like he is being a lot more cautious
and given his role as the head of the SEC,
you know, he, if anyone has the power to kind of ensure that, you know,
whatever regulatory regime he implements is, you know,
capable of ending cryptocurrencies or, you know,
facilitating this kind of innovation, depending on, you know,
how strict it is or, you know, what kind of requirements he enforces.
So that, to me, was kind of the most telling thing that he said.
And do you have any sense of what is the recent,
for the shift in his views?
I want to say stable coins in DFI.
I mean, he's been talking about this for a while now,
you know, warning about how, you know,
he sees a lot of stable coins as possibly being securities,
especially those that are, you know,
backed by a basket of assets,
including commercial paper or money market funds.
It feels like he's kind of casting this wide net
because at this point,
the crypto industry is large enough and has enough momentum
that if he's trying to regulate,
specific narrow issues like stable coins or defy, a narrowly tailored regulatory proposal might not cut it.
So my sense is, and this is speculation from me, but it is that he is casting this wide net saying,
you know, we're going to do all of this stuff to regulate crypto.
And it's to an eye of, you know, being very targeted at the end in terms of, you know, what specific
issues he wants to regulate, what kind of cryptocurrencies he wants to, you know, see registered
as securities
and what kind of exchanges or
trading platforms he wants to register with the
SEC as you know
securities trading platforms
but he you know he's been escalating his rhetoric
around this for a while he's gone
from saying stable coins might be securities
to you know saying he was pretty explicit
about coin base registering
as a securities trading platform
during congressional testimony the other week
so it all kind of feels like
it's escalating to a specific
end game
So maybe let's talk about that exchange piece of it.
What is the way that crypto exchanges currently operate?
And then based on his comments, how do you think that might change?
Yeah.
So right now, crypto exchanges in the U.S. are primarily regulated at the state level.
So you have to, if you're in exchange, you have to register and secure a money transmission license from every state financial regulator you want to do business in.
So with the exception of mine,
Montana, which doesn't have a regime, that's 49 different licenses.
Cryptexchanges aren't wild about this because that's, you know, 49 times the amount of work
you would normally have to do.
It's a lot of, it's expensive.
You have to, you know, file a lot of paperwork and spend a lot of time and resources.
But there is no federal regulator for crypto exchanges specifically.
There's, you know, the CFTC regulates futures products.
So Bitcoin futures, if you're trading those, then you're under a CFTC's purview.
and if you're registering as a securities exchange,
you can try go doing that through the SEC,
if you're trying to be a broker or, you know, an ATS.
But right now there's really no real federal regulator
that oversees spot crypto trading.
And Gensler said in the past that,
he sees that as being a cause for concern.
He's said that he believes that, you know,
in the interest of investor protection,
there should be some kind of entity regulating,
you know, these federal trading platforms.
and he's putting forth the SEC, I think.
I think it's fairly apparent that he seems to be viewing the SEC as the right regulator for this.
And, you know, this is based on him saying that in his view,
if an exchange has listed, you know, quote, 50 or 100 or hundreds of tokens,
then at least some of them are going to be securities,
or at least they would be recognized as securities under the SEC's purview.
And so he's said that exchanges that list these tokens,
which, you know, nothing explicitly named yet, but, you know, any token that might be a security,
if it's trading on your exchange, he wants you to register with the SEC as a, you know,
as a platform that's subject to its regulations.
And do you have a sense of whether exchanges are open to that?
I haven't heard anything from exchanges yet, but, you know, it's going to come down to what kind of
specific guidance, right?
Gensler's been saying all of this during congressional testimony and in speeches,
And he always prefaces with saying, you know, these are my views, not to be used as to commission.
But there's no formal SEC guidance right now.
I think what it might take is if the SEC were to come out and say, you know, we think that this cryptocurrency and that cryptocurrency and this token that you have listed here are definitely securities and you should register with us.
Yeah, that might be one way he could kind of force the issue.
But, you know, as we saw when the SEC sued ripple on claims that it sold XRP as a security, a lot of exchanges just either delisted or suspended trade.
trading in XRP.
So unless the SEC is comprehensive about this, you know, I don't think exchanges are going
to be rushing to register and say, you know, like we're a securities trading platform.
And again, part of that is just because, you know, how exactly do you do that?
So this kind of gets at another question I wanted to ask you.
And this sort of even goes back to what we were discussing with Stablecoins in Gensler's Q&A
with The Washington Post.
he talked about how stable coins look like they could be either investment contracts or also banking products.
And I wondered, like, is it even clear, you know, what the SEC's purview is?
And does it look like it already has the necessary authorization to regulate this area?
And actually here, I mean, it could even be stable coins or, but also the exchange issue.
Yeah.
I mean, that's the thing kind of, it's been de-defining question in their
regulatory world for at least a year, if not more. My understanding about the stable coin issue is
if they are backed by securities, so, you know, anything that might bear interest, then he's
kind of implying that stable coins should be registered as a security. But then the banking
regulatory side comes in when you have, you know, a lot of these platforms that are offering
lending or interest-bearing products based on stablecoins.
And banks do this too, but banks are subject to a very strict banking regulatory regime.
And that's either under the Office of the Control of the Currency or state bank regulators or, you know, sometimes even Fed and FGIC, like all of them are kind of involved.
But the point is it's a very strict banking regime.
And any, you know, traditional bank that wants to offer these kinds of interest-bearing products are subject to, you know, strict regulations about it.
crypto exchanges or crypto lending platforms or, you know, startups in this industry aren't really, you know, they're not registering as banks and they're not licensed as banks. So they're not subject to those regulations. But there's also, again, still no real federal regulator. So the argument for a securities regime has been that, you know, if you're offering an interest bearing product, it might be a certificate of interest, might be, you know, kind of seen as a note, you know, in the security sense. And so, you know,
So the SEC has jurisdiction there.
And in this case, look, the SEC would already have that jurisdiction for sure.
Gensler's been saying that he needs more plenary authority to regulate crypto.
But, you know, there is, I think, a solid argument that at least when it comes to lending products or interest-bearing products and, you know, some of these other tokens, the SEC has the authority it needs.
But, again, that doesn't stretch to spot trading of cryptocurrencies that aren't clearly securities.
I think that's what Gensler's been asked.
for. Yeah, yeah, because then that would fall under the purview of the CFTC. And we did see kind of
in the middle of some of the contention around this. I did see former commissioner Brian Quintens
tweet something, you know, kind of like implying that when, when appropriate, the CFTC, you know,
tries to make sure that things will fall in their territory. So in a moment, we're going to discuss
more about the lending issue, but first a quick word from the sponsors who make this show possible.
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Back to my conversation with Nick Day.
So as you mentioned another area, the SEC and in general regulators have been making a lot of noise about is lending.
We're going to just talk about one of these issues to start.
A few weeks ago, Coinbase revealed that it's been trying for several months to get the SEC's blessing to launch a lend product.
And at that time, in frustration, the exchange published a blog post saying the SEC had threatened to sue them if they launched the lend product.
And in a tweet storm, CEO Brian Armstrong called SEC's behavior sketchy because he claimed that the SEC would not explain to them, why lend is a security.
it would not meet with him.
And then this week, Coinbase stated, finally,
it decided not to launch Lend.
So why do you think they finally came to that decision?
And why do you think that they kind of like poked the bear
if they weren't even going to launch it?
Honestly, that part is a bit of a mystery to me.
I think a lot of people in the industry
expected Coinbase to launch anyway
and take it to the courts to make a ruling on whether or not it's an actual security.
I think one of the issues here is we don't have all the information.
The SEC sent a Wells notice to Coinbase.
And so we have, you know, Brian Armstrong's viewpoint from his tweets,
and we have their chief legal officer, Paul Riewell's, views from the blog post.
But we don't know what the SEC actually said.
They haven't published the Wells notice.
And so, you know, we know that the SEC cited certain Supreme Court precedents.
And that's from the blog post.
but, you know, the exact specifics of what Coinbase was launching or what the SEC says are the issues are still up and, you know, still a bit of a mystery.
You know, there's definitely a bit of a question around that.
The SEC did, you know, apparently point to longstanding Supreme Court precedence.
And there's been, you know, it's been a point of contention in the crypto industry for a while that we're looking to the Howie case, which was, you know, almost, I think, 70 or 80 years ago.
and now we're talking about the Reeves case, which happened in 1990.
There's been definitely a point of contention about using these decades old Supreme Court cases as president for an industry that was born less than 15 years ago.
But I don't think the SEC has a lot of flexibility there.
I think the law has said, you know, the SEC has to abide by these.
And the Supreme Court has said, you know, these are the presidents.
The SEC must enforce them and they must be, you know, uniform about how they enforce them.
So if the industry wants to get more clarity or get change here, they either have to challenge these precedents in court or they have to try and lobby for Congress to pass a new law.
And it doesn't seem like ID of these is happening right now.
Yeah, I did see in an interview that former CFTC chair Chris Roncarlo did with Coin us that he kind of suggested that he felt the laws needed updating.
But to talk a little bit more about this lending issue, all of this.
this kind of controversy with Coinbase in the SEC is also happening in the context of state regulators
going after other crypto lenders such as BlockFi and Celsius.
And I was wondering what you felt this said about the overall picture of crypto lending in the U.S.
Yeah.
So those cases are really interesting.
We're at five different states filing actions against BlockFi and three of them also filed against Celsius.
And I read those, you know, the filings and the orders.
And they all pointed to, you know, state security law.
which are pretty close to federal securities laws.
So it's the same basic issue that the SEC would have with Coinbase Lend, I think,
without again knowing the specifics of what Coinbase Lend was going to actually do
and how the SEC viewed it.
But, yeah, again, it just kind of comes down to who's the actual regulator.
And it seems that, you know, we've seen that New Jersey's securities regulator
has delayed its enforcement of the Block FISA's and desist by a couple months now.
I think they just pushed it back again.
So there's clearly, it's not just, you know,
they're not just trying to say, like, get out.
We don't want you.
They're saying, okay, well, you know, we're open to a dialogue,
but we think that right now you're violating the law
and we want to figure out what's going on here.
So there's definitely something to be said about possibly updating laws
or finding it, you know, figuring out what the best regulatory regime is
for these products that regulators will be comfortable with
and that will still allow companies to, you know, launch these kinds of products and not feel overly burdened.
But it all kind of seems to stem back to the basic principles of, like, you know, who's the actual regulator?
Are these products regulated and are they safe for investors?
And, you know, if not, what is the appropriate way to respond?
Yeah.
So these cases all involve centralized intermediaries.
But when it comes to DFI, I feel like there's kind of this other tension that we're seeing.
And for sure, the regulators look like they're setting their sites on DFI.
And to me, the issue that I see is, and actually I got this from a conversation I had with Collins Belton, who is a lawyer in the space.
And he was talking about how regulations are based on regulating intermediaries.
And decentralization aims to remove the intermediaries.
And I did notice actually when Chair Gensler defined staking for the Washington Post Q&A, he defined it in a way that assumes that you're working with an intermediary who's doing the sticking for you, which I thought was interesting. But I just wondered, like, does it look to you like the SEC is going to write regulations that will sort of force the crypto industry to use intermediaries and to not go the decentralized route? Or do you expect that they'll leave some leeway with some openness toward decentralized models?
models, which, you know, has been suggested by SEC Commissioner Hester Perce with her token safe harbor proposal that would like basically give projects that start out centralized to decentralize over time. How do you see this tension playing out?
Yeah, that is definitely a very good question. I think Gensler is, you know, he said in the past, he's used a lot of this as kind of, I think, when McCallie is called a decentralization theater. He's said that he doesn't see a lot of these decentralized projects.
as actually being decentralized.
And I think acting, you know,
controller Michael Sue at the OCC
said something similar the other day.
He was giving a speech to a group of crypto companies
and said that he seems a lot of these projects
as being more centralized or more intermediated
than they would otherwise claim.
And it feels like that's what they're kind of going for right now
is just saying, you know, defy isn't.
They see, and we've seen that, you know,
they issued subpoenas reportedly to Unoswap, trying to figure out what's, you know, what exactly
is going on with Uniswap and what are not actually decentralized. And so it feels like they're
going to try and kind of make this the precedent saying, okay, well, you know, these projects
are saying they're decentralized, but really they're controlled by, you know, these firms or these
labs or these developers. And therefore, they're not at all decentralized. And, you know, how that
translates into enforcement action or regulations remains to be seen, but it doesn't feel like
they're going to go after the unintermediated projects yet, but they are going to say that,
you know, in their view, these projects are not as decentralized as they claim to be, and so they're
subject to the SEC's purview.
So next week, there is likely to be a number of enforcement actions or other settlements or
just other activity in general from the SEC.
because the end of its fiscal year is September 30th.
So I was kind of curious what you expect to see from the SEC next week.
Yeah, there's a – I don't know anything specific, but there's a rumor that there will be something big happening by the end of the fiscal year.
And, you know, in the years past, like we've seen this happen.
At the end of 2019 – or the 2019 fiscal year, we saw the massive Block 1 settlement.
And it wouldn't surprise me if there was something like that on the horizon.
I don't think it's going to be any of the cases we're following right now.
You know, the SEC case against Ripple and on the XRP allegations is the big one,
but I don't see that settling anytime soon.
So I'm not sure what exactly this will be, but you're absolutely right.
There will be some kind of case or settlement happening, and the SEC is going to say,
hey, look, you know, we just, we have this new precedent that is going to give us,
we're going to use this as our reasoning or our base for when you go after other.
projects in the future.
Yeah.
My personal theory is just reading between the lines of what happened with Coinbase,
where they refused to meet with them.
They refused to explain why they thought it was a security.
But then also at the same time, they're inviting companies to come into Dog that's
easy.
I kind of was like, oh, I wonder if they're working on something big involving lending.
And they kind of can't say anything about it yet.
And that's why they can't talk to Coinbase about this.
But anyway, it was just like a thought in my mind.
So we'll have to see what actually happens.
All right.
Well, it's been so fun chatting with you.
Thank you so much for coming on Unconfirmed.
Thank you for having me.
It's really great talking to you.
Don't forget.
Next of is the weekly news recap.
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Thanks for tuning in to this week's news recap.
First headline, the U.S.
Treasury sanctioned a crypto exchange for the first time.
Suex, a cryptocurrency exchange based primarily in Russia, has been sanctioned by the United
States Treasury for allegedly facilitating transactions for ransomware attackers.
The Treasury's Office of Foreign Assets Control, or OFAC, believes that Suex was involved
in eight ransomware variants. Furthermore, OFAC alleges that 40% of known volume on Suex was
associated with addresses linked to bad actors. According to chain analysis, the blockchain
analytics company that helped OFAC in this case,
Suek's deposit addresses, quote,
received over $160 million in Bitcoin
from ransomware actors, scammers,
and dark net market operators.
The exchange is now officially listed on OFAC's
specially designated nationals and blocked persons list,
barring U.S. residents and businesses
from interacting with the firm.
The move comes shortly after a Wall Street Journal article
last Friday reported Treasury's intent
to target crypto ransomware payments
with sanctions.
Next headline.
Twitter rolls out verified avatars and Bitcoin tips.
According to DeCript, Twitter began rolling out Bitcoin payments features yesterday.
Users will have multiple avenues to hand out Bitcoin tips.
For Normie's Squares Cash App and GoFundMe will let users send BTC via a more conventional route.
For hardcore bitcoiners, Twitter will allow users to utilize Strike, a lightning network-based
payment app, to send tips.
Bitcoin Tips went to.
live starting Thursday on all iOS devices. In addition to Bitcoin tips, Twitter shared plans to
to explore NFTs for authentication. Think blue checkmarks, but for NFTs. Said Twitter executive Esther
Crawford, quote, we're interested in and basically making it somehow visually clear that this is an
authenticated avatar and then give you some interesting info and insight about the provenance of that
NFT. Next headline. Finance is under investigation for insider trading.
Bloomberg reported last Friday that U.S. officials at the Commodity Futures Trading Commission
are investigating the world's most popular exchange for possible insider trading and market manipulation.
According to Bloomberg, the CFTC is looking into whether Binance or its staff took advantage
of its customers to generate profit. Siting anonymous sources, Bloomberg says that the CFTC has contacted
quote, potential witnesses as part of its inquiry.
For now, Binance is not formally accused to committing any wrongdoing, and it is,
unclear if the investigation will lead to any actions from the regulator. The exchange is already
under investigation by the Internal Revenue Service and Department of Justice, as well as the CFTC.
Next headline. Robin Hood users will soon have crypto wallet capability. Robin Hood is planning
to roll out its highly anticipated crypto wallet and transfer features starting in October. With wallets,
users will be able to transfer ETH, BTC, Doge, and other supported tokens off platform.
Security features like identity verification, multifactor authentication, and email and phone verification
will be implemented for storing crypto on Robin Hood.
According to Christine Brown, chief operating officer at Robin Hood Crypto, the trading platform
will slowly launch its crypto wallets with only a small group of customers testing the Alpha
program next month.
More customers will be able to join later through a waitlist.
At publishing time, there are at least 115,000 users on the initial waitlist, which is less than
1% of the 13 million crypto traders on Robin Hood. Perhaps the reason for the low weightless number
can be attributed to the fact that Robin Hood crypto traders are Dogecoin dominant. In Q2, 62% of
crypto revenue came from Dogecoin trading alone. However, data from Bit Info charts shows that
Dogecoin is not widely used in actual blockchain transactions, despite its popularity in Robinhood.
Dogecoin facilitates far fewer daily transactions than Bitcoin or Ethereum. For example, on Wednesday,
Dogecoin executed 16,000 transactions, while Bitcoin executed 275,000, and Ethereum saw 1.17 million
respectively. It will be interesting to see if Robin Hood's new wallet feature will affect such
numbers going forward. Next headline. The Evergrand news was not grand for the crypto market.
As concerns around Evergrand, the heavily indented Chinese property giant cop momentum, Bitcoin and
Ethereum, along which traditional in crypto markets took a big hit on Monday and Tuesday.
Bitcoin dropped to $40,835, while Ethereum dips below $3,000 for the first time since early August.
According to the Crypt, over $1.2 billion in crypto futures were liquidated in just 24 hours.
In traditional markets, the Dow Jones Industrial Average ended Monday down 600 points.
The dip was most likely related to negative sentiment regarding Evergrand's balance sheet,
which showed over $300 billion in debt, an amount that some analysts believe the company would not
be able to pay back. However, on Wednesday, Evergrand agreed to settle interest payments on a
domestic bond calming the tumultuous market. The total crypto market cap jumped 6% on Wednesday,
according to data from coin market cap. Next headline. Investors are throwing money at
NFT platforms. Two NFT companies, Dapper Labs and So Rare, Disclosure, the latter is a sponsor of
my show, announced raises with valuations in the billions. In Dapper Labs, the company behind
NBA Topshot and Flow blockchain, closed a $250 million funding round valuing the company at $7.6 billion,
nearly tripling its last valuation of $2.6 billion in March of 2021.
In addition to the funding round, Dapper also announced a partnership with La Liga, Spain's top soccer league.
The deal will be similar to Dapper's collaboration with the NBA via Topshot.
La Liga will have its own marketplace on Dapper's flow blockchain, where NFT moments and highlights with varying degrees of
will be bought and sold.
The Dapper Labs news comes right on the heels of two similar announcements from So Rare,
an Ethereum-based NFT fantasy soccer game.
On Tuesday, So Rare announced a raise of $680 million,
valuing the NFT company at $4.3 billion.
The latest funding round was led by SoftBank.
So Rare also signed an exclusive partnership deal with Laliga to issue NFTs for its players
less than two weeks ago.
Regarding the overlap between SoRere and Dapper,
Dapper Lab's C.E.
CEO Roham Gerasooslu believes there is room for both platforms. He told CoinDesk, quote,
companies like Sower can be complementary to us, adding they're much more focused on fantasy,
while video is very important to us and sets us apart. In related news, the ties between sports
and crypto continue to grow stronger. Here are two examples. Crypto.com, which currently is
disclosure as sponsor of the show, announced a new deal with NBA's Philadelphia 76ers to become
the team's official jersey patch sponsor.
Crypto.com will also feature prominently inside the Wells Fargo Center arena.
In addition, crypto.com will release a set of official 76er NFT collectibles through its marketplace.
Second, Tom Brady, arguably the greatest football player of all time, is interested in being paid in crypto.
Quote, I'd love to request that to get paid in some crypto and, you know, to get paid in some Bitcoin or Ethereum or Solana tokens, said Brady.
I think it's an amazing thing that's happening in the world, he added.
All right, that's a great segue to fun bits.
This crypto account is Snoop Dog.
I am at Cosimo Medici, tweeted the rapper Snoop Dog to his 19 million followers on Monday.
Who is Cosimo de Medici, as his Twitter profile says.
He, she, it is a pseudonymous crypto account with 43,000 followers and an NFT collection valued at $17.3 million.
Cosimo's OpenC profile currently holds nine crypto punks.
10 me bits, and a handful of pieces from art blocks.
Before revealing his identity, the account was fully pseudonymous, with no ties to Snoop Dog.
For now, it appears that Snoop Dog wants to keep Cosimo's a non-vibe intact.
Quote, those who are curious to know my identity will soon know it, Cosimo tweeted.
Those who do not care or simply prefer to not know the source of my vast fame and fortune
may simply not research.
I will keep this account focused on NFTs and not mention this again here.
All right. Thanks for tuning in. To learn more about Nick and crypto regulation in the U.S.,
be sure to check out the links in the show notes. Unconfirmed is introduced by me, Laura Shin,
withal from Anthony Yun, Mark Murdoch, and Daniel Ness. Thanks for listening.
