No, /. (and most net-savvy user websites) gets pissy when they go after the 1% because after all, they agreed to X Mbps, they should get to use that 100% of the time.
Whether that argument is right or wrong, the two situations combined (the one in this article and the one I'm laying out in this post) equate to a catch 22 for the ISP. The ISP's only remaining choice is to drastically lower promised speeds, but that's a marketing disaster, and really a technical one as well, since most people do sometimes use the top speeds, but don't do so regularly - makes them happy to have it available when needed though.