In Cartrette v. Time Warner Cable, Inc., No. 5:14-cv-143-FL, 2016 U.S. Dist. LEXIS 4867 (E.D. N.C. Jan. 14, 2016), the District Court for the Eastern District of North Carolina ruled that defendant’s proprietary Interactive Voice Recognition System (“IVR”) qualified as an ATDS for purposes of the TCPA.  The IVR software at issue reviewed defendant’s billing system daily and automatically compiled a list of telephone numbers associated with overdue customer accounts.  Id. at *18.  Once identified, the IVR then dialed the numbers associated with those accounts and played a prerecorded message.  Id.  If a customer answered, she could respond to the IVR’s message by entering a series of numbers, which in turn, caused the IVR to play other prerecorded messages.  Id.at *19. Defendant contended that the IVR did not fall within the TCPA’s definition of ATDS because its present capacity did not include the ability to use a random or sequential number generator, while plaintiff disagreed, based on the IVR’s present and potential ability to dial numbers from a preprogrammed calling list without human intervention.

Relying on the FCC’s July 2015 Ruling, the Court agreed with plaintiff, and held that the IVR qualifies as an ATDS because “the capacity of an autodialer is not limited to its current configuration, but also includes its potential functionalities.”  Id. at *17 (quoting In the Matter of Rules and Regulations Implementing the Tel. Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7996 ¶ 64, 2015 WL 4387780 (2015) [hereinafter 2015 FCC Ruling].  Although the Court acknowledged that the IVR did not have the present capacity to generate a list of numbers using a random or sequential number generator, and instead employed an algorithm to locate numbers associated with overdue customer accounts, the Court found the system fell within the FCC’s definition of autodialer because “the IVR represented hardware that, when paired with the billing software, had the capacity to store and dial a list of telephone numbers.”  Id. at *19.