If you are happy misleading the company you purchased it from that it is not what you expected, then there is nothing they can do other than refund/replace. I personally wouldn't sound like you want to have your cake and eat it.
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@ 45% fan what should this thing be idling at roughly ?
im fluctuating between 44 - 47

DSR rules suck for retailers but are great for Consumers
it does seem a bit unfair on retailers that they are stuck with "opened" returns, but thats what the rules seem to state - you even get your original postage back too.
If all 580 clocked at 850mhz+ then Nvidia would have released a faster card! Some chips clock better than others, it's just the way it is. Returning it because it won't do 110% of the speed that it is suppose to run at is a bit silly imo.
re -stocking charges are illegalHope whoever you purchased it from do not have a re-stocking fee charge.![]()
and failing when quoting the dsr.Does not stop them trying![]()