In Barrera v. Comcast Holdings Corporation,  2014 WL 1942829 (N.D.Cal. 2014), Judge Henderson stayed a TCPA case against a debt collector under the Primary Jurisdiction of the FCC.

Plaintiff, in opposition, argues that the FCC’s resolution of this issue will not be relevant and will have “little to no” effect on the outcome of the case. Opp’n at 2. According to Plaintiff, because Defendant continued to call after Plaintiff notified Defendant that it had the wrong number, any finding that the TCPA exempts good faith, non-telemarketing calls would not apply to her case because Defendant had notice that calls to her were placed in error. However, the ACA Petition specifically requests that the FCC create a “safe harbor” for such wrong number non-telemarketing calls, the purpose of which would “ensure that callers would have a reasonable opportunity to comply with the rules.” ACA Petition at 16. Thus, it is conceivable that such a safe harbor exception, if created, could exempt the conduct alleged if Defendant or the debt collector placed the calls within the window for reasonable compliance. Additionally, Plaintiff argues that her state law Rosenthal Act and invasion of privacy claims are not dependent on the TCPA claim. The Court, however, finds that these claims are likely intertwined. If the FCC finds a “good faith” exception exists under the TCPA, whether Defendant here acted with good faith under the TCPA would potentially be relevant to Defendant’s defense of the Rosenthal Act and the invasion of privacy claims, which require the Court to consider the intentional quality of the Defendant’s act and the Defendant’s motives and objectives, respectively. See Cal. Civ.Code § 1788.30(e) (eliminating civil liability under the Rosenthal Act “if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted notwithstanding the maintenance of procedures reasonably adapted to avoid any such violation.”); Baughman v. State of California, 38 Cal.App. 4th 182, 190 (1995) (citation and internal quotation marks omitted) (in analyzing an invasion of privacy claim, a court considers, among other things, “the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives”). Accordingly, the Court concludes that Plaintiff’s arguments do not alter the conclusion that a stay is warranted pending the FCC’s ruling.  Lastly, Plaintiff also argues that she will be prejudiced if the stay is granted because the FCC may take a long time to rule on the two pending petitions, and that her ability to obtain discovery may be harmed in the intervening period of the stay. While Plaintiff contends that the FCC’s two most-recent TCPA-related rulings were pending for seven months and two years, respectively,FN3 the Court does not find that potential delay in awaiting a definitive ruling from the FCC on this highly relevant issue outweighs issuance of the stay. Issuing a decision in the interim that may be undermined by an anticipated ruling of the FCC would run counter to the policy animating the primary jurisdiction doctrine itself. As to discovery prejudice, as noted by Defendant, Plaintiff is likely in possession of relevant evidence such as her own telephone records. The parties are under reciprocal obligations to preserve evidence. See Fed.R.Civ.P. 26(f). To the extent Plaintiff is concerned that any third-party vendor used by Defendant for debt collection purposes is unaware of the pending litigation, such that its relevant records may become unavailable during the pendency of the stay, the Court trusts Defendant will take adequate precaution to ensure that its agent—the debt collection agency entrusted to collect on the Debtor’s delinquent bills—preserves relevant documents related to this case. In the event that Defendant cannot assure the Court that the debt collection agency in this case will preserve relevant records, Defendant shall notify the Court within 21 days of this Order, and the Court shall craft an appropriate, limited remedy to ensure adequate document preservation during the pendency of the stay.