§ 10111 — Imposition of charge

(a) There shall be a prepaid wireless E911 surcharge on each retail transaction. The initial rate of the surcharge shall be 60 cents per retail transaction. Any rate changes shall be implemented under the provisions of subsection (f) of this section.

(b) The prepaid wireless E911 surcharge shall be collected by the seller from the consumer for each retail transaction occurring in this State. The amount of the prepaid wireless E911 surcharge shall be either separately stated on an invoice, receipt, or other similar document that is provided to the consumer by the seller, or otherwise disclosed to the consumer.

(c) For purposes of determining whether a retail transaction is subject to the prepaid wireless E911 surcharge, the following transactions are deemed to occur in Delaware and are subject to the surcharge imposed under this section:

(1) The retail transaction is effected in person by the consumer at a business location of the seller if that business location is in Delaware; or

(2) The prepaid wireless telecommunications service is physically delivered to a consumer at a Delaware address provided to the seller; or

(3) The seller’s records that are maintained in the regular course of business indicate that the consumer’s address is in Delaware and the records are not kept or made in bad faith; or

(4) The consumer gives a Delaware address during the consummation of the retail transaction, including the customer’s payment instrument if no other address is available, and the address is not given in bad faith; or

(5) The consumer’s mobile telephone number is associated with a Delaware location.

(d) The prepaid wireless E911 surcharge is the liability of the consumer and not of the seller or of any prepaid wireless provider, except that the seller shall remit all prepaid wireless E911 surcharges that the seller collects from consumers as provided in this section, including all such surcharges that the seller is deemed to collect where the amount of the surcharge has not been separately stated on an invoice, receipt, or other similar document provided to the consumer by the seller.

(e) The amount of the prepaid wireless E911 surcharge that is collected by a seller from a consumer, if such amount is separately stated on an invoice, receipt, or other similar document provided to the consumer by the seller, shall not be included in the base for measuring any tax, fee, surcharge, or other charge that is imposed by this State, any political subdivision of this State, or any intergovernmental agency.

(f) The prepaid wireless E911 charge shall be proportionately increased or reduced, as applicable, upon any change to rate of the surcharge as determined under the provisions of § 10103(a) of this title. Provided, however, that any rate changes shall only be effective on the first day of the calendar quarter not less than 60 days after the Board provides final notice of such rate change. The Division of Revenue shall provide not less than 30 days of advance notice of such increase or reduction on the Division’s website.

(g) If a minimal amount of prepaid wireless telecommunications service is sold with a prepaid wireless device for a single, nonitemized price, then the seller may elect not to apply the surcharge imposed by this section to such transaction. For purposes of this subsection, an amount of service denominated as 10 minutes or less, or $5.00 or less, is minimal.

(h) The surcharge shall not be applied to prepaid wireless telecommunications service provided to a person through the Lifeline program.

Legislative History

79 Del. Laws, c. 332, § 1