Doesn't every ISP do this? Isn't that why we have the wording of "up to n Mbps"?
I have had three ISPs in the past 5 years, and only one of them was able to occasionally deliver the speeds that they advertised for the plan during off-peak hours. I even made a twitter account just to let Verizon know, their reps didn't seem to appreciate it: https://twitter.com/VerizonFiosUser
I mean it's great a lawsuit has been created to address this, and I hope they win. But I also am pessimistic that this will lead to meaningful change for the big ISPs. Frontier might be the lowest hanging fruit to go after, but they are all doing this.
On another note, I could see value in a separate certification process that shows the actual average speed delivered for each plan in a given area.