The CMA anti-trust investigation into AWS and Microsoft explained: Everything you need to know
Cloud computing has always been marketed to enterprises as a more cost-effective way for companies to access the compute resources they need, because they only pay for what they use and can easily scale back how much they are using, based on demand.
Enterprises were encouraged, on the back of these benefits, to streamline their on-premise datacentres and start migrating the applications and workloads that resided in them to the public cloud.
In the early 2010s, it is fair to say that companies had a much wider choice of public cloud providers to entrust their data to, with (the technology firms formally known as) HP and Dell both having enterprise propositions in this space, alongside Rackspace and the likes of Microsoft, Google and Amazon Web Services (AWS).
Towards the latter half of that decade, HP, Dell and Rackspace (and a handful of others) had all bowed out of the public cloud race, with the rise of AWS often cited as a factor in their decisions to pivot their business models towards a mix of private and managed cloud services provision.
This, in turn, has paved the way for the cloud infrastructure market to become the three-horse race it is today, with AWS leading the charge, followed by Microsoft and Google Cloud.
According to data shared by global market watcher Synergy Research Group in early February 2024, AWS accounts for just under a third (31%) of the global cloud infrastructure services market, followed by Microsoft with 24% and Google Cloud with 11%.
With around two-thirds of an entire market dominated by just three players, it is perhaps unsurprising that the hold companies like AWS, Microsoft and Google have on the cloud infrastructure services market is coming under increased regulatory scrutiny in various markets across the world – and the UK is no different.
In September 2022, the communications regulator Ofcom launched year-long probe into the UK’s £15m cloud services market, with particular emphasis on the actions and activities of the market’s biggest players: AWS, Microsoft and Google.
The study’s aim, as outlined by Ofcom at the time, was to “assess the strength of the competition in cloud services and the position key companies hold in the market” under the terms of the Enterprise Act 2002, which is an act of Parliament concerned with preserving market competitiveness.
Halfway through its investigation, Ofcom published an interim report in April 2023 that singled out AWS and Microsoft, specifically, for engaging in anti-competitive behaviours that it claimed might financially disadvantage UK consumers and businesses.
The “behaviours” were serious enough for Ofcom to confirm it was consulting on whether to refer the UK cloud infrastructure services market to the Competition and Markets Authority (CMA).
This was in the wake of its investigation bringing to light evidence that users were being hampered in their ability to switch from one cloud provider to another or add additional ones to their roster of technology providers.
Despite opposition from both Amazon and Microsoft, Ofcom confirmed – at the time its final report into the UK cloud infrastructure services market dropped in October 2023 – that it would be referring the market to the CMA for a further anti-trust probe.
Why did Ofcom refer the UK cloud services market to the CMA?
Ofcom published a full-year report that chronicled the findings of its 12-month investigation into the UK cloud infrastructure market in October 2023 that raised red flags about some anti-competitive behaviours it claimed AWS and Microsoft are both known to display. This is why the market has been referred to the CMA.
These red flags included concerns about the fact cloud providers charge customers egress fees to transfer their data to a competitor’s environment, which Ofcom claimed could discourage users from switching between providers.
The report also flagged interoperability restrictions as being another matter of concern, as it means users often have to put additional effort into reconfiguring their data and applications to work in different cloud environments.
The offering of committed spend discounts, which Microsoft and AWS are both known to do to public sector users, was also raised as a red flag by Ofcom as it incentivises users to back a single cloud provider for all or most of their cloud needs, the regulator claimed.
Ofcom’s full-year report also devoted several pages to detailing concerns it had received about how Microsoft charges users more for running versions of its cloud products in its competitors’ hosting environments.
“The [licensing] concerns centre on the way Microsoft sells and licenses some of its software products used by businesses… these include the Windows operating system, Microsoft SQL Server and the Microsoft 365 productive suite,” the Ofcom report stated.
“We have received submissions that say Microsoft engages in several practices that make it less attractive for customers to use Microsoft’s licensed software products on the cloud infrastructure of rival providers compared to Microsoft Azure. The submissions allege that this limits their ability to compete for customers.”
What will the CMA investigation cover?
It will be the CMA’s responsibility to fully investigate the anti-competitive behaviours flagged in the Ofcom report. As well as this, the CMA also has powers to intervene and roll out changes to how the likes of AWS and Microsoft behave to correct any anti-competitive behaviours its work brings to light.
Who is overseeing the CMA investigation?
The CMA appointed an inquiry group to oversee the investigation on 5 October 2023. The group comprises four members: CMA inquiry chair Kip Meek, Robin Foster, Paul Hughes and Colleen Keck.
How long will the CMA investigation into AWS and Microsoft last?
The CMA’s investigation into the UK cloud infrastructure services market is due to run until April 2025, meaning that by the time it ends, it will have run for about 18 months.
The investigation’s length has raised eyebrows and proven to be a great source of concern for UK cloud market stakeholders, who fear the 18-month timeline will pave the way for the companies under investigation to gain more share and influence at the expense of other, smaller providers.
Furthermore, since the CMA’s investigation started, AWS signed several cloud hosting deals with three different government departments that commenced on the same day (1 December 2023) that are valued at more than £800m. These deals are set to run for three years each, so they will still be live once the investigation ends.
What shape could the CMA’s interventions take?
The CMA could ban cloud service providers from charging data egress fees, which Ofcom flagged as a problematic behaviour because it discourages cloud users from switching suppliers due to cost concerns.
Incidentally, in the wake of the CMA probe starting, Google Cloud announced that it was scrapping egress fees for all its customers in January 2024.
And AWS made a similar announcement on 5 March 2024, with its pledge to waive the charges associated with transferring data out to the internet when users want to migrate workloads from its public cloud infrastructure.
In a blog post, announcing the move, the company claimed more than 90% of its customers never incur fees when transferring data out of AWS, because the company already offers 100 gigabytes per month of free transfers from its datacentre regions to the internet.
“If you need more than 100 gigabytes of data transfer out per month while transitioning, you can contact AWS support to ask for free data transfer out to the internet charges for the additional data,” the post stated.
“It’s necessary to go through support because you make hundreds of millions of data transfers each day, and we generally do not know if the data transferred out to the internet is a normal part of your business or a one-time transfer as part of a switch to another cloud provider or on-premises,” the company added.
The AWS blog post made no reference to regulatory pressure being a factor in its decision to waive data egress fees, but did say the move is in keeping with its view that moving to the cloud should give users choice and flexibility.
“We believe this choice must include the one to migrate your data to another cloud provider or on-premises,” the post added.
And doing so will not require users to close their accounts with AWS or change their relationship with the company in anyway, it added.
Technical and interoperability barriers were also flagged by Ofcom as complicating the lives of enterprises that might want to mix and match cloud services from competing providers. Therefore, Ofcom said the CMA could address this by forcing the hyperscalers to be more transparent about how nicely (or not) their technologies play with their competitors’ offerings.
One area that might be trickier for the CMA to fix is the offering of committed spend discounts, Ofcom acknowledged, because putting a stop to customers being able to access preferential pricing on products would mean higher prices and costs for users.
Has there been any shift in behaviour from AWS and Microsoft since the CMA investigation started?
On the whole, it has been business as usual for AWS and Microsoft. There has been no let-up in Amazon’s use of committed spend discounts to lure in public sector customers, for example.
Despite the offering of discounted pricing being a key area of focus for the CMA’s inquiry, details emerged in December 2023 that AWS had quietly renewed the preferential pricing scheme it had in place with the UK government.
This pricing scheme, known as the One Government Value Agreement (OGVA), has already been used to call off several multimillion-pound contracts, including one valued at £450m with the UK Home Office since its introduction in late 2023.
Where Microsoft is concerned, though, the company has moved to allay concerns about its “unfair” software licensing practices, where its cloud deployments are concerned, by entering discussions with a cloud trade body that has previously reported it for anti-competitive behaviour to the European Commission.
As reported by Computer Weekly in February 2024, Microsoft confirmed it had opened discussions with the Cloud Infrastructure Services Providers in Europe (CISPE) trade body with a view to resolving its concerns about how it charges more for customers opting to run their own software in its cloud.
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