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Consumers and industry have led calls for broadband providers to advertise average connection speeds, rather than the headline figures which only those living within spitting distance of a telephone exchange have a realistic chance of achieving with ADSL.

Earlier this year, BT Wholesale's general manager, Guy Bradshaw, told journalists that ISPs shouldn't fixate on headline speeds. "Headline speeds still seem to be the key marketing lever," he said. "As an industry, we should focus on average throughput."

The former chairman of Ofcom's own Consumer Panel, Collette Bowe, also told PC Pro: "My problem is the prominence given to the 8 meg in the typical headline and the very difficult to read caveats around that, that you get right down the bottom of the page."

Yet, Ofcom has once again passed up the opportunity to rein in the ISPs with the launch of services based on BT's 21CN service, which are already starting to be marketed as "up to 24Mb/sec".

Instead, ISPs are being asked to provide "customers at the point of sale with an accurate estimate of the maximum speed that the line can support."

However, even the Internet Service Providers' Association (ISPA) has doubts over the validity of this figure. "ISPA members feel that while the code of practice focuses on access line speed, throughput speed is of much greater value to the user," it claims.

"Access line speed only gives an approximation of the speed they will receive. ISPA looks forward to continuing our work with Ofcom and the internet industry to determine a methodology for collecting accurate information on

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throughput speeds to give to the consumer at the point of purchase."

Ofcom says it will consider the way speeds are marketed. "At the moment ISPs will have to give maximum speeds but we need to carry out the extensive research in order to find out what speeds people are actually getting - we don't currently have robust data," Ofcom claims in a statement. "This is due to be published by the end of 2008. We will then be able to use research findings to amend the Code if necessary."

The code is voluntary with no sanctions for those who break its terms, although Ofcom claims it will conduct a mystery shop to ensure ISPs are playing by the rules, and "will consider introducing formal regulations" if it finds the code "is not effective.".

No escape

The code also stipulates that ISPs should resolve "technical issues to improve speed and offer customers the choice to move onto a lower speed package when estimates given are inaccurate."

However, Ofcom has ignored one of the key recommendations from its Consumer Panel, which suggested that customers be freed from their contract if actual line speeds "are significantly lower than the package they bought".

This means that customers could still be tied to an 18 or even 24-month contract, despite the fact their line isn't achieving the estimated speed. "We have to balance what's right for consumers with what's right for ISPs," an Ofcom spokesperson told PC Pro this morning, when asked why it had ignored the Consumer Panel's recommendation.

Ofcom says the Consumer Panel has welcomed the code and adds: "The Code states that ISPs will have to offer consumers the choice to move onto a lower speed package if estimates given are inaccurate. If another package is unavailable then consumers will be able to use the existing complaints mechanisms in place, eg the Alternative Dispute Resolution scheme - Otelo or Cisas." Both of those services make customers wait a minimum of 12 weeks before intervening.

Industry support

Thirty two ISPs have signed up to the voluntary code of practice, which has also earned the support of ISPA.

However, it says the code doesn't go far enough. "ISPA would like to see the code of practice extended to include wireless mobile operators that provide broadband over their networks as well as fixed line broadband providers, to ensure minimal confusion to consumers," it claims.