It also comes as ACCC chairman Rod Sims said he was prepared to take providers to court over poor speeds. "We've got a number of investigations underway," Mr Sims said in June. "I'd be surprised if we don't have a couple of cases in court by the end of the year." Industry insiders — including a source close to the tender for the project — blasted the ACCC, telling Fairfax Media they were frustrated with the delay. One said that the methodology chosen to conduct the speed testing was "inadequate" and "too poor" to be able to use for ACCC compliance purposes, such as taking a provider to court for not meeting sales claims around speeds. The ACCC, meanwhile, contends that the purpose of the tests is not to use them as evidence to take providers to court but to help better inform consumers when making a choice over which ISP to choose.

According to ACCC tender documents, the regulator only requested a "15-day consecutive period" of speed testing "in the first month of each quarter" as part of the program. This means, according to telco insiders, that ISPs could "game" or trick the program by provisioning more internet traffic at the start of each quarter for 15 days, fooling the test reports and ACCC. The ACCC contends, however, that the 15-day period can start at any point during a month and not necessarily from the 1st until the 15th. For example, it could start on the 3rd until the 18th and a provider would be none the wiser. Even so, the source argued that a provider could still provision their internet traffic to be better for the first 30 days for the start of each quarter and then let it lapse to poorer speeds when monitoring wasn't being undertaken. "If the ACCC thinks they can sue an ISP with 15 consecutive days worth of speed testing data per 90-day quarter then they are out of their depth," a telco industry insider told Fairfax Media. [Update: Following the publication of this article, ACCC sources told Fairfax Media that discussions around the technical capability of the tests had progressed since the tender was published. The sources said the successful tender would allow them to have some flexibility in terms of when testing was done, meaning it would be hard for ISPs to game them.

The delay comes as the ACCC summoned ISPs to a roundtable meeting next Wednesday to discuss the broadband monitoring program, according to telco sources.] Independent telco analyst John Lindsay, who used to work as internet provider Internode's chief technology officer, told Fairfax "I would have thought having gone to that much effort [to conduct speed testing] that they might as well sample speeds across the entire base over the entire period". Mr Lindsay said he got the sense that the ACCC's requested methodology was "working from the starting point that testing is difficult to do. While the first test is hard, the rest becomes a lot easier". Mr Lindsay said a "rational methodology" was to randomly sample volunteers across the entire pool continually "so that you could build up a picture of network performance during all the different times of the day" including peak periods, allowing the ACCC to inform consumers of what has been observed "during the times they expect to use the internet". "But you need to test it across all the access technologies," he said, including FTTN, FTTC, HFC, fixed-wireless, and satellite, as well as across all geographic areas.

This was because there are 121 points of interconnect in the NBN, Mr Linsday said, which means there are 121 different ways an ISP can service their customers and provision internet traffic. It is understood the ACCC will be testing speeds across all technologies except fixed-wireless and satellite. After multiple requests for comment in recent weeks, the ACCC said on Wednesday that it would "shortly" announce the company that would conduct NBN speed testing on its behalf. This was first reported by telco industry publication CommsDay on Thursday morning. The program is worth an estimated $7 million, $5 million of which the testing provider will pocket to conduct the broadband monitoring and $2 million of which will be used by the ACCC to analyse results. "The ACCC will be shortly making an announcement regarding its Broadband Monitoring Program, including when we will be in a position to publish performance data," an ACCC spokesperson said. "It is important we get the technical details and specifications of the program right from the outset, which is why we have not made an announcement to date.

"We fully expect to deliver the program and on budget over a period of four years." The ACCC disputes, at least internally, that there has been a 7-month delay to the "program" because it "commenced" searching for volunteer participants in June. Loading It concedes internally, however, that there has been a delay in awarding the tender to a testing provider and that the first test results won't be out until sometime early next year. It is understood the first testing will occur in December.