Yeah, well my jack off provider can't get me 3 megs (provisioned for 10) at 9 pm DIRECTLY TO THEIR SERVER 2 MILES FROM MY HOUSE. They have a speed test that runs directly to their server, not on any other network and I'm pulling 3 megs right now.
They have a bad node in my area and will only check it in the morning when everything is moving at optimum speeds. They refuse to examine at night.
And they are working on offering (that means charging for) 20-30 megs when they know they can't/won't provide 10 right now. I call that theft.
Check your contract with them.
If you have an SLA that guarantees speed, service availability, etc., and the provider refuses to make good on their end of the contract, then it's breach of contract - not theft.