In Schwyhart v. AmSher Collection Services, Inc., 2016 WL 1620096 (N.D.Ala., 2016), Judge Ott refused to stay a TCPA case based on the pending ACA Omnibus proceedings.

Having considered the parties’ respective arguments for and against a stay, the court concludes that a stay is not warranted in this instance, for two primary reasons. First, AmSher’s motion to stay is premised on the speculative possibility that the D.C. Circuit will set aside the provisions in the FCC Order interpreting the term “called party” to exclude the “intended recipient” of a call and establishing a limited “first call” safe harbor exemption for unintentional calls to the wrong party.1 However, before the FCC issued the FCC Order, the Eleventh Circuit had already considered and rejected the contention that “the ‘intended recipient’ [of a telephone call] is the ‘called party’ referred to” in the TCPA. Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1252 (11th Cir.2014); see also Breslow v. Wells Fargo Bank, N.A., 755 F.3d 1265, 1267 (11th Cir.2014) (“During the pendency of this appeal, another panel of this court … concluded in a published opinion that ‘called party,’ for purposes of § 227(b)(1)(A)(iii), means the subscriber to the cell phone service…. That panel rejected the defendant’s contention that called party could mean intended recipient.” (citation to Osorio omitted)). And by so ruling, the Eleventh Circuit also foreclosed the possibility of a multiple-call safe harbor for unintentionally calling the wrong party. See Shehan v. Wells Fargo Bank N.A., 56 F.Supp.3d 1206, 1209 n. 3 (N.D.Ala.2014) (noting that in Osorio, the Eleventh Circuit foreclosed a safe harbor defense for “non-telemarketing calls when the debt collector had previously obtained appropriate consent and had no intent to call any person other than the person who had previously provided consent to be called” (quotation marks omitted)).  Therefore, regardless of how the D.C. Circuit rules in ACA International, its decision will have no direct impact on this case.