Ofcom Sends UK Cloud Market to the Competition Watchdog UPDATE

The UK communications and media regulator, Ofcom, has today formally referred the public cloud infrastructure services market, which is dominated by Amazon (AWS) and Microsoft (Azure), to the Competition and Markets Authority (CMA) for further investigation after uncovering “features that could limit competition“.

The regulator’s decision follows the completion of its market study into cloud services, which was launched in October 2022 to examine the causes of why particular markets may not be working well in the interests of consumers – using Ofcom’s powers as a competition authority under the Enterprise Act 2002.

The study concluded that high fees for transferring data out, committed spend discounts and technical restrictions are making it difficult for business customers to switch cloud provider or use multiple providers. Ofcom fears that, if left unchecked, “competition could deteriorate in a critical digital market for the UK economy“.

The regulator’s decision won’t come as much of a surprise because their interim findings, which were published in April 2023 (here), warned that such an outcome was now likely. The study itself focused on ‘cloud infrastructure services’, which are built on physical servers and virtual machines hosted in data centres around the world.

Cloud infrastructure provides the foundation for how software applications are developed and run. This consists of products called infrastructure as a service (IaaS) which includes storage, computing and networking, and platform as a service (PaaS), which includes the software tools needed to build and run applications. The market for cloud infrastructure in the UK was worth £7.0bn to £7.5bn in 2022.

Ofcom’s Position

Our study has found that competition between cloud providers is mainly focused on attracting new customers when they first move into the cloud. We see evidence of some positive outcomes for customers, including product innovation, discounts and a wide choice of software services from ISVs. However, our view is that competition is being limited by market features that make it more difficult for customers to switch and use multiple suppliers (known as ‘multi-cloud’). The features we are most concerned about are:

• egress fees are the charges that customers pay to transfer their data out of a cloud. The cost of transferring data between rival providers can discourage customers from using more than one cloud provider and in some cases make switching more costly.

• technical barriers mean that customers need to put additional effort into reconfiguring their data and applications to work on different clouds. A lack of interoperability and portability can restrict the ability of customers to switch and multi-cloud.

• committed spend discounts can benefit customers by reducing their costs, but the way these discounts are structured can incentivise customers to use a single cloud provider for all or most of their cloud needs. This can make it less attractive to use rival providers as part of a multi-cloud strategy.

As a result, we are concerned that a material number of customers, especially those with more complex requirements, may face significant barriers to switching and multi-cloud. We expect this will be true of an increasing number of customers as the market matures. Some customers have told us they are already concerned about being ‘locked in’ to their current provider.

Limits on the ability of customers to credibly threaten to switch away can reduce the competitive pressure on the market leaders, giving them a degree of market power. This creates the risk of harm for cloud customers, either by paying higher prices than would have been the case or being denied access to innovative products, which in turn can lead to negative impacts for UK consumers. High levels of profitability for the market leaders AWS and Microsoft and a gradual increase in market concentration are consistent with limits to the overall level of competition.

Looking ahead, if customers have difficulty switching and using multiple providers, it could make it harder for competitors to gain scale and challenge AWS and Microsoft effectively for the business of new and existing customers. There could be long lasting impacts if this leads the market to become more concentrated, with barriers to switching and multi-cloud allowing the market leaders to entrench their positions and avoid competing vigorously. This could have implications for ISVs, especially where they become more dependent on the market leaders for access to customers.

The CMA could, if it were to find fault with the market, impose a broad range of remedies, including market-opening measures, structural measures, or recommendations to Government or other regulatory bodies to change policy, legislation, or regulatory frameworks. Ofcom has already identified some potential interventions, but it will be the job of the CMA to assess which ones to take or, indeed, if any are needed at all.

Potential Remedies

Egress fees

a) Equalise egress fees with other charges (e.g. no higher than data transfer costs within a single provider’s cloud).
b) Place a price control that restricts egress fees to “at cost” charges.
c) Prevent providers from charging any egress fees.

Interoperability and portability

a) Require cloud providers to publish more comprehensive documentation on the interoperability of their cloud infrastructure services. This would include requiring cloud providers, who adopt or mimic third party open-source software, to explain the compatibility of their cloud infrastructure services with such software.
b) Require cloud providers to ‘unbundle’ their own first-party services into their respective elements, with a view to allowing third-party services to interoperate with these individual elements.
c) Require cloud providers to ensure PaaS services from another cloud provider or ISV can interoperate with underlying first-party IaaS services in the same way as the first-party PaaS services.

Committed spend discounts

a) Prohibit or restrict loyalty-inducing fee structures which risk distorting competition.

We should point out that the regulator’s views are largely aligned to those of the EU’s new Data Act, which currently aims to introduce requirements relating to egress fees and interoperability.

Fergal Farragher, Ofcom’s Director responsible for the Market Study, said:

“The cloud is the foundation of our digital economy and has transformed the way companies run and grow their businesses. From TV production and telecoms networks to AI innovations – all of these things rely on remote computer power that goes unseen.

Some UK businesses have told us they’re concerned about it being too difficult to switch or mix and match cloud provider, and it’s not clear that competition is working well. So, we’re referring the market to the CMA for further scrutiny, to make sure business customers continue to benefit from cloud services.”

Adrian Bradley, Head of Cloud Transformation at KPMG UK, said:

“The entire UK cloud market is worth far more to our economy than the £15bn we spend on cloud service providers. It underpins the leading edge of technology for many enterprises in both public and private sectors. Cloud is the main route to access capabilities like generative AI or high-quality analytics capabilities and it’s quick and scalable to use, so choice is critical.

The fact that public cloud runs as a utility model, that lets users pay by the hour, has opened cost-effective access to technology capabilities which have fuelled the digital revolution. There are commercial trade-offs to secure access to these capabilities, just as there are with non-public cloud alternatives to the hyperscalers, such as identifying the right combinations of cloud and non-cloud consumption to deliver best value for any given enterprise.

Whatever the outcome of the CMA inquiry, organisations need to better understand and manage the costs of cloud to secure value from their investments.”

Major competition investigations like this have a habit of taking quite a long time to run their course, so we’re unlikely to learn the provisional outcome of the CMA’s investigation until a bit later next year.

UPDATE 1:03pm

We’ve had a response from Amazon.

An AWS spokesperson said:

“We disagree with Ofcom’s findings and believe they are based on a fundamental misconception of how the IT sector functions, and the services and discounts on offer. Only a small percentage of IT spend is in the cloud, and customers can meet their IT needs from any combination of on-premises hardware and software, managed or co-location services, and cloud services.

AWS designs cloud services to give customers the freedom to choose technology that best suits their needs. UK companies, and the overall economy, benefit from robust competition among IT providers, and the cloud has made switching between providers easier than ever. Any unwarranted intervention could lead to unintended harm to IT customers and competition. AWS will work constructively with the CMA.”

In terms of egress fees, AWS said they “do not” charge separate fees for switching data to another IT provider. “Customers make hundreds of millions of data transfers each day in the ordinary course of business, and over 90% of our customers pay nothing for data transfer because we provide them with 100 gigabytes per month for free.”